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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities and Exchange Act of 1934
Date of Report (Date of earliest event reported) February 3, 1999
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BANK PLUS CORPORATION
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(Exact Name of Registrant as Specified in its Charter)
Delaware 0-28292 95-1782887
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
4565 Colorado Boulevard, Los Angeles, California 90039
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (818) 241-6215
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N/A
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(Former Name or Former Address, if Changed Since Last Report)
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This Report is filed pursuant to Item 5 of Form 8-K to report the
adoption of a stockholder rights plan by Bank Plus Corporation and amendments to
Bank Plus Corporation's By-Laws. Pursuant to General Instruction F of Form 8-K,
the following documents are incorporated by reference herein and attached as
exhibits hereto (except as otherwise indicated):
Exhibits
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1. Bank Plus Corporation Press Release dated February 5, 1999
announcing the adoption of a stockholder rights plan.
2. Form of Letter to Stockholders regarding the adoption of a
stockholder rights plan and transmitting a summary of the rights.
3. Summary of the Rights issued pursuant to the Rights Agreement.
4. Form of Rights Agreement, dated as of February 3, 1999, between
Bank Plus Corporation and American Stock Transfer & Trust Company, as Rights
Agent.
5. Amended and Restated By-Laws of Bank Plus Corporation.
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: February 8, 1999 BANK PLUS CORPORATION
By: /s/ Godfrey B. Evans
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Name: Godfrey B. Evans
Its: Executive Vice President,
Chief Administrative Officer
and General Counsel
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EXHIBIT INDEX
Exhibit Sequentially
Number Description Numbered Page*
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1 Bank Plus Corporation Press Release
dated February 5, 1999 announcing
the adoption of a stockholder rights
plan
2 Form of Letter to Stockholders regarding
the adoption of a stockholder rights plan
and transmitting a summary of the rights
3 Summary of the Rights issued pursuant to
the Rights Agreement
4 Form of Rights Agreement, dated as of February 3,
1999, between Bank Plus Corporation and
American Stock Transfer & Trust Company,
as Rights Agent
5 Amended and Restated By-Laws of Bank
Plus Corporation
________
* Contained only in manually executed version
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EXHIBIT 1
Press Release
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BANK PLUS CORPORATION NEWS
RELEASE
A Holding Company for Fidelity Federal Bank
4565 Colorado Boulevard
Los Angeles CA 90039
(818) 241-6215
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BANK PLUS CORPORATION REPORTS 1998 FOURTH-QUARTER
EARNINGS AND YEAR-END RESULTS AND ANNOUNCES STOCKHOLDER
RIGHTS PLAN
Los Angeles, February 5, 1999 -- Bank Plus Corporation (NASDAQ: BPLS) ("Bank
Plus" or the "Corporation"), and its subsidiaries (the "Company"), which include
Fidelity Federal Bank, FSB ("Fidelity" or the "Bank"), today reported net
earnings of $1.1 million, or $0.06 per share, for the fourth quarter of 1998.
For the year, the Company incurred a net loss of $56.3 million, or $2.90 per
share, primarily due to provisions for loan losses and other charges related to
the Bank's credit card portfolio.
Fourth Quarter Highlights
. The Company terminated its agreements with the marketers of its two largest
credit card programs, American Direct Credit, LLC ("ADC") and MMG Direct
Inc. ("MMG"). All litigation between the Bank and ADC is being dismissed
with prejudice and the Bank has been released from all known and unknown
claims by ADC. In addition, First Alliance Mortgage Company announced that
it ceased originating new credit card accounts under its real estate
secured credit card program.
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. The Company transferred the California Public Employees' Retirement System
("CalPERS") financial education and planning program to a limited liability
company (the "LLC") whose Managing Member is a subsidiary of a major
diversified financial services company. The Managing Member has assumed
responsibility for all future funding of the CalPERS program, resulting in
the elimination of operating losses for this program for Bank Plus. In
addition, any profits the LLC generates will first be paid to Bank Plus
until the Company is fully reimbursed for its cumulative investment in the
CalPERS program.
. The change in ownership of AmeriCash enabled the Company to collect the
$2.5 million in fees owed to it by AmeriCash as well as to recover
substantially all of its investment in AmeriCash. The acquirer of AmeriCash
has notified the Bank that it will terminate the ATM cash services
agreement in March 1999.
. The Bank implemented a deposit repricing and conversion program as part of
a plan to improve its regulatory capital ratios by reducing total assets.
This resulted in a reduction in the fourth quarter of $109 million in
deposits, 98% of which were deposits in excess of $100,000. In the first
quarter of 1999 the Bank has increased rates for deposits under $100,000 to
match prevailing market rates to ensure the retention of these valuable
retail deposits.
. The Bank's deposit cost of funds decreased from 4.78% at September 30, 1998
to 4.53% at December 31, 1998.
. The yield on interest earning assets increased to 2.93% from 2.23% in the
third quarter of 1998.
. Total sales of noninsured investment products of $47 million and $181
million for the quarter and year ended December 31, 1998, represented
increases of 12% and 13%, respectively, as compared to the corresponding
periods in 1997.
. Operating expenses decreased $2.9 million from the third quarter of 1998.
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Fourth Quarter and Year-End 1998 Results of Operations
Net interest income and net yield on interest earning assets in the 1998
fourth quarter increased to $26.6 million and 2.93%, respectively, compared to
$23.4 million and 2.23% for the third quarter of 1998 and $19.9 million and
1.99% for the 1997 fourth quarter. The increase in net yield is due primarily
to higher average yields and balances in the Bank's credit card portfolio and a
lower cost of funds as maturing certificates of deposit roll over at
significantly lower rates.
The provisions for estimated loan losses for the quarter and year ended
December 31, 1998, were $15.0 million and $73.0 million, respectively, as
compared to $0.3 million and $13.0 million in the corresponding periods in 1997.
The increase reflects the rapid growth in 1998 in Fidelity's primarily sub-prime
credit card portfolio, which has experienced high levels of delinquencies and
charge-offs.
Net noninterest income for the quarter and year ended December 31, 1998,
were $18.6 million and $34.4 million, respectively, as compared to net
noninterest expense of $2.2 million for the 1997 fourth quarter and noninterest
income of $3.9 million for the 1997 full year. Excluding securities and trading
activities, noninterest income increased primarily as a result of (i) credit
card fees from credit card programs started during the year, which totaled $13.8
million and $21.4 million for the quarter and year ended December 31, 1998, and
(ii) a reduction in Real Estate Owned ("REO") expense of $0.8 million and $3.8
million compared to the 1997 fourth quarter and full year, respectively, as a
result of a decrease in REO levels.
Operating expenses increased to $29.0 million and $105.0 million for the
quarter and year ended December 31, 1998, as compared to $17.2 million and $63.1
million for the corresponding periods in 1997. These increases were primarily
due to increases of $8.0 million and $20.2 million, respectively, in servicing
costs related to the Company's credit card portfolio.
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Asset Quality
Classified assets increased to $132.4 million at December 31, 1998, from
$118.6 million at September 30, 1998, primarily due to a $27.4 million increase
in classified credit card balances, partly offset by decreases in classified
mortgage loans and REO.
Overall loan delinquencies increased to $102.7 million at December 31,
1998, from $80.0 million at September 30, 1998, with a $24.9 million increase in
credit card loan delinquencies partly offset by a $3.7 million reduction in
mortgage loan delinquencies. Credit card delinquencies increased to 21.4% of
total outstanding credit card balances at year-end, as compared to 16.1% at
September 30, 1998. As of January 31, 1999, total credit card delinquencies
were 22.2%.
Total reserves were $109.1 million at December 31, 1998, as compared to
$107.7 million at September 30, 1998 and $56.0 million at December 31, 1997.
The increases were primarily due to additional reserves related to the Bank's
credit card portfolio.
Credit Card Operations
At December 31, 1998, total outstanding credit card balances were $350.1
million. The net 12.5% increase over September 30, 1998 balances reflects new
accounts originated primarily under the wind down agreement with ADC and
advances on current accounts, partially offset by charge-offs and collections
during the quarter. The credit card programs with MMG and ADC accounted for
$170.9 million (49%) and $147.3 million (42%), respectively, of the 1998 year-
end outstanding balances. Total delinquencies under the MMG program increased
to 31.9% at December 31, 1998, from 19.5% at September 30, 1998. Total
delinquencies under the ADC program decreased to 12.1% at December 31, 1998 from
13.4% at September 30, 1998.
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As of January 31, 1999, delinquencies under the MMG and ADC programs were
33.6% and 13.0%, respectively. As a consequence of the chargeoff of the last of
the first payment defaults, delinquencies and charge-offs under the MMG program
are expected to peak in the first quarter of 1999 and decline through the second
quarter, remaining at lower levels in subsequent periods.
Regulatory Capital
The Bank's core and risk-based capital ratios as of December 31, 1998, were
4.36% and 8.95%, respectively, compared to 4.22% and 8.66%, respectively, as of
September 30, 1998. Under the most restrictive of the regulatory capital ratio
measurements the Bank had an excess of $13.4 million above the minimum level
required to be considered "adequately capitalized", compared to an excess of
$8.3 million at September 30, 1998. Common stockholders' equity totaled $127.4
million at December 31, 1998, with a tangible book value per common share
outstanding of $5.82.
Senior Notes
Historically, the Company funded quarterly interest payments on its 12% Senior
Notes through preferred and common stock dividends from the Bank. Currently,
the Bank does not meet the Office of Thrift Supervision ("OTS") safe harbor
regulations for dividends without prior approval by the OTS. However, the Bank
has an agreement with the OTS which permits the payment of dividends on the
Bank's preferred stock so long as the Bank remains adequately capitalized. The
agreement with the OTS does not constrain the OTS from restricting future
dividend payments based on safety and soundness considerations or future
examination findings, and no assurance can therefore be given that the OTS will
permit future dividend payments by Fidelity to Bank Plus. The Company has
received no indication from the OTS that it will object to the continued payment
of preferred dividends.
The Company projects that it will have sufficient liquidity at Bank Plus to
provide for the Senior Note interest payment due February 16, 1999. Bank Plus
anticipates maintaining sufficient liquidity to meet its operating requirements
and the differential
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between the preferred stock dividends and the quarterly interest payments on the
Senior Notes through the remainder of 1999. This liquidity is expected to be
provided by the Company's wholly-owned non-bank subsidiaries, Gateway Investment
Services, Inc., ("Gateway") and Bank Plus Credit Services.
Resignation of Director
Robert P. Condon, Chief Executive Officer of Bank Plus' wholly-owned broker-
dealer subsidiary Gateway Investment Services, Inc., and a member of the Board
of Directors of Bank Plus, has resigned from the Company and the Board. Mr.
Condon is leaving to become the General Manager of the CalPERS LLC, where he
will continue to manage the CalPERS financial education and planning program.
He will also continue to serve on Gateway's Board of Directors. Mark K. Mason,
Chief Executive Officer of Bank Plus, was appointed to fill the vacancy created
by Mr. Condon's resignation as Gateway's CEO.
1999 Business Plan
The Company's Board of Directors has adopted a business plan for 1999 which
provides for, among other things:
. Conforming and nonconforming single family mortgage loan origination
and loan purchase
. Reduction of the operating expenses of the core bank, excluding FDIC
insurance premiums, to below 1997 levels
. Reducing deposits by $400 million either by a sale of deposits or
through runoff
. Expansion of its interest margin from fourth quarter levels
. Becoming well capitalized in 1999
. An improvement in credit quality in the credit card portfolio through
seasoning and increased collection efforts
While the Company believes that it can achieve the business plan adopted, there
can be no assurance that these objectives will be achieved.
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Status of Exploration of Strategic Alternatives
At the end of the fourth quarter the Company, with the help of its
financial advisors, initiated a process to explore a potential sale with parties
interested in (i) an acquisition of the Company and, separately, (ii) the Bank's
credit card portfolio and operations. Bank Plus has distributed information on
the Company and has received indications of interest from several parties. The
Company is currently in discussion with the parties to clarify the pricing and
structure of these potential offers. As of this date no definitive offers to
acquire Bank Plus have been made, and there can be no assurance that any offers
will be made in the future or that the terms of any offers received by the
Company would be considered adequate.
Stockholder Protections
The Board of Directors has approved a Stockholder Rights Plan (the
"Plan") for the Company. The Board of Directors has determined that it is in
the best interests of the Company and its stockholders to take steps to prevent
coercive, unfair or inadequate tender offers or other abusive takeover tactics
at this time and to preserve the value of the stockholders' investment in the
Company. The Plan is not intended to prevent an acquisition of the Company on
terms that maximize value for all stockholders.
The Rights Plan provides each stockholder of the Company with one
right for each share of common stock held. Generally, should any person or
entity become the beneficial owner of 15% or more of the Company's outstanding
common stock (with the exception of those persons who hold 15% or more of the
Company's common stock, or securities convertible into 15% or more of the
Company's common stock, on February 3, 1999) each right (other than those held
by that new 15% stockholder) would be exercisable to purchase that number of
shares of the Company's common stock having, at that time, a market value equal
to two times the then current exercise price of the right (initially $25).
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The record date set for distribution of the rights under the Rights
Plan is February 16, 1999, after which any shares of common stock will
automatically be accompanied by the associated rights. The rights expire on
February 3, 2009, (unless previously triggered), and are subject to redemption
by the Board of Directors of the Company at $0.001 per right at any time prior
to the first date upon which they become exercisable.
Certain provisions of the Corporation's Bylaws have been amended to
conform them to current provisions of the Delaware General Corporation Law and
to strengthen the Bylaws in the event of hostile takeover attempts. Among such
Bylaw changes is a requirement that stockholders who wish to have proposals
considered at the 1999 Annual Meeting must submit such proposals to the Company
by February 28, 1999.
Bank Plus Corporation is the holding company for Fidelity Federal Bank, FSB,
which offers a broad range of consumer financial services, including demand and
time deposits and mortgage loans. In addition, through its affiliate Gateway
Investment Services, Inc., a NASD-registered broker/dealer, Fidelity provides
customers of the Bank with investment products, including mutual funds,
annuities and insurance. Fidelity operates through 38 full-service branches, 37
of which are located in Southern California, principally in Los Angeles and
Orange counties.
Forward-Looking Statements
Certain statements included in this release, including without
limitation statements containing the words "believes", "anticipates", "intends",
"expects" and words of similar import, constitute "forward-looking statements"
within the meaning of the Private Securities Litigation Reform Act. Such
forward-looking statements involve known and unknown risks, uncertainties and
other factors that may cause the actual results, performance or achievements of
Bank Plus and Fidelity to be materially different from any future results,
performance or achievements expressed or implied by such forward-looking
statements. Such factors are referred to in Bank Plus's most recent Annual
Report on Form 10-K as of December 31, 1997, and its most recent
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Quarterly Report on Form 10-Q as of September 30, 1998. A number of other
factors may have a material adverse effect on the Company's financial
performance. These factors include a national or regional economic slowdown or
recession which increases the risk of defaults and credit losses; restrictions
imposed on the Bank's operations by regulators such as a prohibition on the
payment of dividends to Bank Plus; an increase in the number of customers
seeking protection under the bankruptcy laws which increases the amount of
charge-offs; the effects of fraud by third parties or customers; and the
financial performance of the Bank's credit card marketers which may impact their
ability to fulfill their contractual financial obligations, resulting in
increased losses to the Bank. Given these uncertainties, undue reliance should
not be placed on such forward-looking statements. Bank Plus disclaims any
obligation to update any such factors or to publicly announce the results of any
revisions to any of the forward-looking statements included herein to reflect
future events or developments.
Contact : Neil L. Osborne, Investor Relations, Bank Plus Corporation
(818) 549-3116
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EXHIBIT 2
Form of
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Letter to Stockholders
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[BANK PLUS CORPORATION LETTERHEAD]
February __, 1999
Dear Bank Plus Stockholder:
The Board of Directors of Bank Plus Corporation has adopted a
Stockholder Rights Plan intended to help assure that all stockholders would
receive fair treatment in the event of any threatened hostile acquisition of the
Company. A summary of the Stockholder Rights Plan is enclosed for your
information. No action on your part is required at this time. You will be
notified if the Rights are ever triggered and become exercisable.
The Rights Plan has been adopted to protect the interests of our
stockholders and to assist the Board of Directors in responding properly and
effectively on behalf of the stockholders in the event of any hostile or
coercive takeover attempt of the Company. The Rights Plan is not being adopted
in response to any takeover attempt; rather, the Rights Plan is an attempt to
provide the Board of Directors with adequate time and a full opportunity to
consider any and all alternatives to such hostile action.
It is worth noting that over 2,000 public United States companies have
already adopted comparable rights plans.
The Rights will expire (unless previously triggered) on February 3,
2009 and, in certain circumstances, are subject to amendment or to redemption at
$.001 per Right by the Board. The adoption of the Bank Plus Rights Plan does
not weaken the financial strength of the Company or interfere with its business
plans. The issuance of the Rights has no dilutive effect and will not affect
earnings per share or change the way in which you can presently trade the
Company's shares.
In adopting the Rights Plan, the Board has expressed its confidence in
the future and its determination that our stockholders be given every
opportunity to participate fully in that future. As always, our primary
obligation is to enhance stockholder values.
We appreciate your continuing support. Thank you.
Sincerely,
Mark K. Mason
Chief Executive Officer
Enclosure
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EXHIBIT 3
Summary of the Rights
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SUMMARY OF THE RIGHTS
On February 3, 1999, the Board of Directors of Bank Plus Corporation
(the "Company") authorized and declared a dividend of one preferred stock
purchase right (a "Right") for each share of common stock, par value $.01 per
share, of the Company (the "Common Shares"). The dividend is payable on
February 16, 1999 (the "Record Date") to the holders of record of Common Shares
as of the close of business on such date.
The following is a brief description of the Rights. It is intended to
provide a general description only and is subject to the detailed terms and
conditions of the Rights Agreement (the "Rights Agreement") dated as of February
3, 1999 by and between the Company and American Stock Transfer & Trust Company,
as Rights Agent (the "Rights Agent").
1. Common Share Certificates Representing Rights
Until the Distribution Date (as defined in Section 2 below), (a) the
Rights shall not be exercisable, (b) the Rights shall be attached to and trade
only together with the Common Shares and (c) the stock certificates representing
Common Shares also shall represent the Rights attached to such Common Shares.
Common Share certificates issued after the Record Date and prior to the
Distribution Date shall contain a notation incorporating the Rights Agreement by
reference.
2. Distribution Date
The "Distribution Date" is the earliest of (a) the tenth business day
following the date of the first public announcement that any person (other than
the Company or certain related entities, and with certain additional exceptions)
has become the beneficial owner of 15% or more of the then outstanding Voting
Shares (such person is a "15% Stockholder" and the date of such public
announcement is the "15% Ownership Date"), (b) the tenth business day (or such
later day as shall be designated by the Board of Directors) following the date
of the commencement of, or the announcement of an intention to make, a tender
offer or exchange offer, the consummation of which would cause any person to
become a 15% Stockholder or (c) the first date, on or after the 15% Ownership
Date, upon which the Company is acquired in a merger or other business
combination in which the Company is not the surviving corporation or in which
the outstanding Common Shares are changed into or exchanged for stock or assets
of another person, or upon which 50% or more of the Company's consolidated
assets or earning power are sold (other than in transactions in the ordinary
course of business). In calculating the percentage of outstanding Voting Shares
that are beneficially owned by any person, such person shall be deemed to
beneficially own any Voting Shares issuable upon the exercise, exchange or
conversion of any options, warrants or other securities beneficially owned by
such person; provided, however, that such Voting Shares issuable upon such
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exercise shall not be deemed outstanding for the purpose of calculating the
percentage of Voting Shares that are beneficially owned by any other person.
Upon the close of business of the Distribution Date, the Rights shall
separate from the Common Shares, Right certificates shall be issued and the
Rights shall become exercisable to purchase Preferred Shares as described in
Section 5 below.
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No Person who is the Beneficial Owner of 15% or more of the
outstanding Voting Shares as of February 3, 1999 shall be deemed a 15%
Stockholder unless or until such Person shall acquire, without the prior
approval of the Board of Directors, Beneficial Ownership of an additional 1% of
the Voting Shares then outstanding and, following such acquisition, is the
Beneficial Owner of more than 15% of the Voting Shares then outstanding. In
addition, any Person (a "Transferee") who purchases Voting Shares from such
Person shall not be deemed a 15% Stockholder if, after giving effect to such
acquisition, such Transferee holds no more than the sum of the Voting Shares so
acquired plus 1% of the Voting Shares then outstanding.
3. Issuance of Right Certificates
As soon as practicable following the Distribution Date, separate
certificates representing only Rights shall be mailed to the holders of record
of Common Shares as of the close of business on the Distribution Date, and such
separate Right certificates alone shall represent such Rights from and after the
Distribution Date.
4. Expiration of Rights
The Rights shall expire on February 3, 2009 (the "Expiration Date"),
unless earlier redeemed or exchanged, unless the Distribution Date has
previously occurred and the Rights have separated from the Common Shares, in
which case the Rights will remain outstanding for ten years from the date they
separate.
5. Exercise of Rights
Unless the Rights have expired or been redeemed or exchanged, they may
be exercised, at the option of the holders, pursuant to paragraphs (a), (b) or
(c) below. No Right may be exercised more than once or pursuant to more than one
of such paragraphs. From and after the first event of the type described in
paragraphs (b) or (c) below, each Right that is beneficially owned by a 15%
Stockholder or that was attached to a Common Share that is subject to an option
beneficially owned by a 15% Stockholder shall be void.
(a) Right to Purchase Preferred Shares. From and after the close of
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business on the Distribution Date, each Right (other than a Right that has
become void) shall be exercisable to purchase one one-hundredth (1/100) of
a share of Series C Junior Participating Cumulative Preferred Stock, par value
$.01 per share, of the Company (the "Preferred Shares"), at an exercise price of
$25.00 (Twenty-Five Dollars) (the "Exercise Price"). Prior to the Distribution
Date, the Company may substitute for all or any portion of the Preferred Shares
that would otherwise be issuable upon exercise of the Rights, cash, assets or
other securities having the same aggregate value as such Preferred Shares. The
Preferred Shares are nonredeemable and, unless otherwise provided in connection
with the creation of a subsequent series of preferred stock, are subordinate to
any other series of the Company's preferred stock whether issued before or after
the issuance of the Preferred Shares. The Preferred Shares may not be issued
except upon exercise of Rights. The holder of a Preferred Share is entitled to
receive when, as and if declared, the greater of (i) cash and non-cash dividends
in an amount equal to 100 times the dividends declared on each Common Share or
(ii) a preferential annual dividend of $.01 per Preferred Share ($.0001 per one
one-hundredth (1/100) of a Preferred Share). In the event of liquidation, the
holders of Preferred Shares shall be entitled to receive a liquidation payment
in an amount equal to the greater of (1) $.01 per Preferred Share ($.0001 per
one one-hundredth
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(1/100) of a Preferred Share), plus all accrued and unpaid dividends and
distributions on the Preferred Shares, or (2) an amount equal to 100 times the
aggregate amount to be distributed per Common Share. Each Preferred Share has
one hundred (100) votes per share (one vote per one one-hundredth (1/100) of a
Preferred Share), voting together with the Common Shares. In the event of any
merger, consolidation or other transaction in which Common Shares are exchanged,
the holder of a Preferred Share shall be entitled to receive 100 times the
amount received per Common Share. The rights of the Preferred Shares as to
dividends, voting and liquidation preferences are protected by antidilution
provisions. It is anticipated that the value of one one-hundredth (1/100) of a
Preferred Share should approximate the value of one Common Share.
(b) Right to Purchase Common Shares of the Company. From and after
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the close of business on the tenth business day following the 15% Ownership
Date, each Right (other than a Right that has become void) shall be exercisable
to purchase, at the Exercise Price (initially $25.00), Common Shares with a
market value equal to two times the Exercise Price. If the Company does not
have sufficient Common Shares available for all Rights to be exercised, the
Company shall substitute for all or any portion of the Common Shares that would
otherwise be issuable upon the exercise of the Rights, cash, assets or other
securities having the same aggregate value as such Common Shares.
(c) Right to Purchase Common Stock of a Successor Corporation. If,
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on or after the 15% Ownership Date, (i) the Company is acquired in a merger or
other business combination in which the Company is not the surviving
corporation, (ii) the Company is the surviving corporation in a merger or other
business combination in which all or part of the outstanding Common Shares are
changed into or exchanged for stock or assets of another person or (iii) 50% or
more of the Company's consolidated assets or earning power are sold (other than
in transactions in the ordinary course of business), then each Right (other than
a Right that has become void) shall thereafter be exercisable to purchase, at
the Exercise Price (initially $25.00), shares of common stock of the surviving
corporation or purchaser, respectively (the "Surviving Person"), with an
aggregate market value equal to two times the Exercise Price.
6. Adjustments to Prevent Dilution
The Exercise Price, the number of outstanding Rights and the number of
Preferred Shares or Common Shares issuable upon exercise of the Rights are
subject to adjustment from time to time as set forth in the Rights Agreement in
order to prevent dilution. With certain exceptions, no adjustment in the
Exercise Price shall be required until cumulative adjustments require an
adjustment of at least 1%.
7. Cash Paid Instead of Issuing Fractional Securities
No fractional securities shall be issued upon exercise of a Right
(other than fractions of Preferred Shares that are integral multiples of one
one-hundredth of a Preferred Share and that may, at the election of the Company,
be evidenced by depositary receipts) and in lieu thereof, an adjustment in cash
shall be made based on the market price of such securities on the last trading
date prior to the date of exercise.
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8. Redemption
At any time prior to the earlier of (a) the tenth business day
following the 15% Ownership Date or (b) the first event of the type giving rise
to exercise rights under Section 5(c) above, the Board of Directors may, at its
option, direct the Company to redeem the Rights in whole, but not in part, at a
price of $.001 per Right (the "Redemption Price"), and the Company shall so
redeem the Rights. Immediately upon such action by the Board of Directors (the
date of such action being the "Redemption Date"), the only right of the holders
of Rights thereafter shall be to receive the Redemption Price.
9. Exchange
At any time during the period of 180 days after the 15% Ownership
Date, the Board of Directors of the Company may, at its option, authorize and
direct the exchange of all, but not less than all, of the then outstanding
Rights for Common Shares, one one-hundredths of Preferred Shares, debt
securities of the Company, other property or any combination of the foregoing,
which, as of the date of the Board of Directors' action, has a current market
price equal to the difference between the Exercise Price and the current market
price of the shares that would otherwise be issuable upon exercise of a Right on
such date (the "Exchange Ratio"), and the Company shall so exchange the Rights.
Immediately upon such action by the Board of Directors, the right to exercise
Rights shall terminate and the only right of the holders of Rights thereafter
shall be to receive the securities so designated by the Board of Directors in
accordance with the Exchange Ratio.
10. No Stockholder Rights Prior to Exercise
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company (other than rights resulting from such
holder's ownership of Common Shares), including, without limitation, the right
to vote or to receive dividends.
11. Amendment of Rights Agreement
The Board of Directors may, from time to time, without the approval of
any holder of Rights, direct the Company and the Rights Agent to supplement or
amend any provision of the Rights Agreement in any manner, whether or not such
supplement or amendment is adverse to any holder of Rights, and the Company and
the Rights Agent shall so supplement or amend such provision; provided, however,
-------- -------
that from and after the earliest of (a) the tenth business day following the 15%
Ownership Date, (b) the first event of the type giving rise to exercise rights
under Section 5(c) above or (c) the Redemption Date, the Rights Agreement cannot
be supplemented or amended in any manner that would materially and adversely
affect any holder of outstanding Rights other than a 15% Stockholder or a
Surviving Person.
19
<PAGE>
EXHIBIT 4
Form of Rights Agreement
------------------------
20
<PAGE>
Form of
RIGHTS AGREEMENT
dated as of February 3, 1999
by and between
BANK PLUS CORPORATION
and
AMERICAN STOCK TRANSFER & TRUST COMPANY
as Rights Agent
21
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
----
<S> <C>
Section 1. Certain Definitions....................................... 24
-------------------
Section 2. Appointment of Rights Agent............................... 29
---------------------------
Section 3. Issuance of Rights Certificates........................... 29
-------------------------------
Section 4. Form of Right Certificates................................ 30
--------------------------
Section 5. Countersignature and Registration......................... 31
---------------------------------
Section 6. Transfer, Split Up, Combination and Exchange of Right
-----------------------------------------------------
Certificates; Mutilated, Destroyed, Lost or Stolen
--------------------------------------------------
Right Certificates........................................ 31
------------------
Section 7. Exercise of Rights........................................ 32
------------------
Section 8. Cancellation and Destruction of Right Certificates........ 34
--------------------------------------------------
Section 9. Reservation and Availability of Capital Stock............. 34
---------------------------------------------
Section 10. Securities Record Date.................................... 35
----------------------
Section 11. Adjustment of Exercise Price, Number of Shares Issuable
-------------------------------------------------------
Upon Exercise of Rights or Number of Rights............... 35
-------------------------------------------
Section 12. Certificate of Adjusted Exercise Price or Number of
---------------------------------------------------
Shares Issuable Upon Exercise of Rights................... 40
---------------------------------------
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
------------------------------------------------------
Earning Power............................................. 40
-------------
Section 14. Fractional Rights and Fractional Shares................... 43
---------------------------------------
Section 15. Rights of Action.......................................... 44
----------------
Section 16. Agreement of Right Holders................................ 44
--------------------------
Section 17. Right Holder and Right Certificate Holder Not Deemed a
------------------------------------------------------
Stockholder............................................... 44
-----------
Section 18. Concerning the Rights Agent............................... 45
---------------------------
Section 19. Merger or Consolidation or Change of Name of Rights Agent. 45
---------------------------------------------------------
Section 20. Duties of Rights Agent.................................... 46
----------------------
Section 21. Change of Rights Agent.................................... 48
----------------------
Section 22. Issuance of New Right Certificates........................ 49
----------------------------------
Section 23. Redemption of Rights...................................... 49
--------------------
Section 24. Exchange of Rights........................................ 50
------------------
Section 25. Notice of Certain Events.................................. 51
------------------------
Section 26. Notices................................................... 51
--------
Section 27. Supplements and Amendments................................ 52
--------------------------
Section 28. Certain Covenants......................................... 52
-----------------
Section 29. Successors................................................ 53
----------
</TABLE>
22
<PAGE>
<TABLE>
<S> <C>
Section 30. Benefits of this Agreement............................... 53
--------------------------
Section 31. Severability............................................. 53
------------
Section 32. Governing Law............................................ 53
-------------
Section 33. Counterparts............................................. 53
------------
Section 34. Descriptive Headings..................................... 53
--------------------
</TABLE>
TABLE OF EXHIBITS
-----------------
Exhibit A -- Form of Right Certificate
23
<PAGE>
RIGHTS AGREEMENT
This Rights Agreement (the "Agreement") is made and entered into as of
the 3rd day of February, 1999 by and between BANK PLUS CORPORATION, a Delaware
corporation (the "Company"), and American Stock Transfer & Trust Company, a New
York banking corporation (the "Rights Agent").
WHEREAS, the Board of Directors of the Company has authorized and
declared a dividend of one preferred share purchase right (a "Right") for each
Common Share (as hereinafter defined) of the Company outstanding on February 16,
1999 (the "Record Date"), each Right representing the right to purchase one one-
hundredth of a Preferred Share (as hereinafter defined), upon the terms and
subject to the conditions set forth herein, and has further authorized and
directed the issuance of one Right with respect to each Common Share that shall
become outstanding between the Record Date and the earliest of the Distribution
Date, the Redemption Date or the Expiration Date (as such terms are hereinafter
defined).
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the parties hereto hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the
-------------------
following terms have the meanings indicated:
"Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 promulgated under the Exchange Act, as in
effect on the date hereof.
A Person shall be deemed the "Beneficial Owner" of and shall be deemed
to "Beneficially Own" any securities:
(i) that such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly, for purposes of
Section 13(d) of the Exchange Act and Rule 13d-3 promulgated under the
Exchange Act, in each case as in effect on the date hereof;
(ii) that such Person or any of such Person's Affiliates or
Associates has the right to acquire (whether such right is exercisable
immediately, or only after the passage of time, compliance with regulatory
requirements, the fulfillment of a condition or otherwise) pursuant to any
agreement, arrangement or understanding, or upon the exercise of conversion
rights, exchange rights (other than these Rights), rights, warrants or
options, or otherwise, provided, however, that a Person shall not be deemed
-------- -------
the Beneficial Owner of, or to Beneficially Own, securities tendered
pursuant to a tender offer or exchange offer made by or on behalf of such
Person or any of such Person's Affiliates or Associates until such tendered
securities are accepted for purchase or exchange;
(iii) that such Person or any such Person's Affiliates or Associates
has the right to vote, whether alone or in concert with others, pursuant to
any agreement, arrangement or understanding, provided, however, that a
-------- -------
Person shall not be deemed the Beneficial
24
<PAGE>
Owner of, or to Beneficially Own, any security if the agreement,
arrangement or understanding to vote such security (A) arises solely from a
revocable proxy given to such Person or any of such Person's Affiliates or
Associates in response to a public proxy solicitation made pursuant to and
in accordance with the applicable rules and regulations promulgated under
the Exchange Act, and (B) is not also then reportable on Schedule 13D under
the Exchange Act (or any comparable or successor report);
(iv) that are Beneficially Owned, directly or indirectly, by any
other Person with which such Person or any of such Person's Affiliates or
Associates has any agreement, arrangement or understanding for the purpose
of acquiring, holding, voting (other than voting pursuant to a revocable
proxy as described in the proviso to clause (iii) of this definition of
"Beneficial Owner") or disposing of any securities of the Company; and
(v) that, on any day on or after the Distribution Date, evidence
Rights that prior to such date were represented by certificates for Common
Shares that such Person Beneficially Owns on such day.
Notwithstanding anything to the contrary in this Section l(b), a Person engaged
in business as an underwriter of securities shall not be deemed to be the
Beneficial Owner of, or to Beneficially Own, any securities acquired through
such Person's participation in good faith in a firm commitment underwriting
until the expiration of 40 days after the date of such acquisition.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
day on which banking institutions in the State of California are authorized or
obligated by law or executive order to close.
"Certificate of Designations" shall mean the certificate of
designations specifying the powers, designations, preferences and rights of the
Preferred Shares in accordance with the Delaware General Corporation Law.
"Close of Business" on any given date shall mean 5:00 p.m., California
time, on such date; provided, however, that if such date is not a Business Day,
-------- -------
it shall mean 5:00 p.m., California time, on the next succeeding Business Day.
"Closing Price" of a stock or other security on any day shall be the last
sale price, regular way, per share of such stock or unit of such other security
on such day 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 such stock
or other security is not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated transaction reporting system
with respect to securities listed on the principal national securities exchange
on which such stock or other security is listed or admitted to trading or, if
such stock or other security is 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 on the Nasdaq National Market
25
<PAGE>
("NASDAQ") or such other system then in use or, if on any such date such stock
or other security is not quoted by any such organization, the average of the
closing bid and asked prices as furnished by a professional market maker that
makes a market in such stock or other security and that is selected by the Board
of Directors of the Company.
"Common Share" shall mean one share of the Common Stock, par value
$.01 per share, of the Company, unless used with reference to a Person other
than the Company, in which case it shall mean one share of each class of stock
of such Person having the right to vote generally in the election of directors
or, if such Person is a Subsidiary of another Person, one Common Share of the
Person that ultimately controls such Person.
"Common Share Equivalent" shall have the meaning ascribed to it in
Section 11(a)(iii) hereof.
"Current Market Price" per share of a stock or unit of any other
security on any date shall mean the average of the daily Closing Prices of such
stock or other security for the 30 consecutive Trading Days through and
including the Trading Day immediately preceding the date in question; provided,
--------
however, that if any event shall have caused the Closing Price on any Trading
- -------
Day during such 30-day period not to be fully comparable with the Closing Price
on the date in question (or, if no Closing Price is available on the date in
question, on the Trading Day immediately preceding the date in question), then
each such non-comparable Closing Price so used shall be appropriately adjusted
by the Board of Directors in order to make the Closing Price on each Trading Day
during the period used for the determination of the Current Market Price fully
comparable with the Closing Price on such date in question (or, if applicable,
the immediately preceding Trading Day). "Current Market Price" per share of any
stock or unit of such other security that is not publicly held or so listed or
traded, and "Current Market Price" of any other property, shall mean the fair
value per share of such stock or unit of such other security, or the fair value
of such other property, respectively, as determined in good faith by the Board
of Directors of the Company based upon such appraisals or valuation reports of
such independent experts as the Board of Directors shall in good faith determine
appropriate, which determination shall be described in a statement filed by the
Company with the Rights Agent.
"Distribution Date" shall have the meaning ascribed to it in Section 3
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exempt Person" shall mean the Company, any wholly-owned Subsidiary of
the Company, any employee benefit plan of the Company or of a Subsidiary of the
Company and any Person holding Voting Shares for or pursuant to the terms of any
such employee benefit plan.
"Exercise Price" shall have the meaning ascribed to it in Section 7(c)
hereof.
"Expiration Date" shall mean February 3, 2009.
"15% Ownership Date" shall mean the first date of public announcement
(which, for purposes of this definition, shall include, without limitation, a
report filed pursuant to
26
<PAGE>
Section 13(d) of the Exchange Act) by the Company or a 15% Stockholder
containing the facts by virtue of which a Person has become a 15% Stockholder.
"15% Stockholder" shall mean any Person that Beneficially Owns 15% or
more of the Voting Shares of the Company then outstanding; provided, however,
-------- -------
that the term "15% Stockholder" shall not include: (i) an Exempt Person; (ii)
any Person that would not otherwise be a 15% Stockholder but for a reduction in
the number of outstanding Voting Shares resulting from a stock repurchase
program or other similar plan of the Company or from a self tender offer of the
Company, which plan or tender offer commenced on or after the date hereof;
provided, however, that the term "15% Stockholder" shall include such Person
- -------- -------
from and after the first date upon which (A) such Person, since the date of the
commencement of such plan or tender offer, shall have acquired Beneficial
Ownership of, in the aggregate, a number of Voting Shares of the Company equal
to 1% or more of the Voting Shares of the Company then outstanding and (B) such
Person, together with all Affiliates and Associates of such Person, shall
Beneficially Own 15% or more of the Voting Shares of the Company then
outstanding; (iii) any Person that would not otherwise be a 15% Stockholder but
for its Beneficial Ownership of Rights; (iv) any Person that is the Beneficial
Owner of 15% or more of the outstanding Voting Shares of the Company as of
February 3, 1999; provided, however, that the term "15% Stockholder" shall
-------- -------
include such Person from and after the first date upon which (A) such Person,
since February 3, 1999, shall have acquired, without the prior approval of the
Board of Directors of the Company, Beneficial Ownership of, in the aggregate, a
number of Voting Shares of the Company equal to 1% or more of the Voting Shares
of the Company then outstanding and (B) such Person, together with all
Affiliates and Associates of such Person, shall Beneficially Own 15% or more of
the Voting Shares of the Company then outstanding; or (v) any Person (a
"Transferee") that acquires Voting Shares from a Person described in clause (iv)
above that has not become a 15% Stockholder if, after giving effect to such
acquisition, such Transferee Beneficially Owns no more than the sum of the
Voting Shares so acquired plus 1% of the Voting Shares then outstanding;
provided, however, that the term "15% Stockholder" shall include such Transferee
- -------- -------
from and after the first date upon which (A) such Transferee, since the date of
such acquisition, shall have acquired, without the prior approval of the Board
of Directors of the Company, Beneficial Ownership of, in the aggregate, a number
of Voting Shares of the Company equal to 1% or more of the Voting Shares of the
Company then outstanding and (B) such Transferee, together with all Affiliates
and Associates of such Transferee, shall Beneficially Own 15% or more of the
Voting Shares of the Company then outstanding. In calculating the percentage of
the outstanding Voting Shares that are Beneficially Owned by a Person for
purposes of this definition, Voting Shares that are Beneficially Owned by such
Person shall be deemed outstanding, and Voting Shares that are not Beneficially
Owned by such Person and that are subject to issuance upon the exercise or
conversion of outstanding conversion rights, exchange rights, rights, warrants
or options shall not be deemed outstanding. Any determination made by the Board
of Directors of the Company as to whether any Person is or is not a 15%
Stockholder shall be conclusive and binding upon all holders of Rights.
"Person" shall mean any individual, firm, partnership, corporation,
association, group (as such term is used in Rule 13d-5 promulgated under the
Exchange Act as in effect on the date hereof) or other entity, and shall include
any successor (by merger or otherwise) of such entity.
27
<PAGE>
"Preferred Share" shall mean one share of the Series C Junior
Participating Cumulative Preferred Stock, par value $.01 per share, of the
Company, which shall have the rights and preferences set forth in the
Certificate of Designations for the Preferred Shares.
"Preferred Share Equivalent" shall have the meaning ascribed to it in
Section 11(b) hereof.
"Record Date" shall have the meaning ascribed to it in the recitals
hereto.
"Redemption Date" shall mean the date of the action of the Board of
Directors of the Company authorizing and directing the redemption of the Rights
pursuant to Section 23(a) hereof or the exchange of the Rights pursuant to
Section 24(a) hereof.
"Redemption Price" shall have the meaning ascribed to it in Section
23(a) hereof.
"Right Certificate", as that term is used with respect to any period
prior to the Distribution Date, shall have the meaning ascribed to it in Section
3(b) hereof, and, as that term is used with respect to any period on or after
the Distribution Date, shall have the meaning ascribed to it in Section 3(c)
hereof.
"Rights Expiration Date" shall mean the Expiration Date, except if
there has been a Distribution Date, then it shall mean the tenth anniversary of
the Distribution Date.
"Section 11(a)(ii) Event" shall have the meaning ascribed to it in
Section 11(a)(ii) hereof.
"Section 13(a) Event" shall have the meaning ascribed to it in Section
13(a) hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Subsidiary" of any Person shall mean any corporation or other Person
of which equity securities or equity interests representing a majority of the
voting power are owned, directly or indirectly, or which is effectively
controlled, by such Person.
"Surviving Person" shall have the meaning ascribed to it in Section
13(a) hereof.
"Trading Day" shall mean, as to any stock or other security, a day on
which the principal national securities exchange on which such stock or other
security is listed or admitted to trading is open for the transaction of
business or, if such stock or other security is not listed or admitted to
trading on any national securities exchange, a Business Day.
"Voting Share" shall mean (i) a Common Share of the Company and (ii)
any other share of capital stock of the Company entitled to vote generally in
the election of directors or entitled to vote together with the Common Shares in
respect of any merger, consolidation, sale of all or substantially all of the
Company's assets, liquidation, dissolution or winding up. References in this
Agreement to a percentage or portion of the outstanding Voting Shares shall
28
<PAGE>
be deemed a reference to the percentage or portion of the total votes entitled
to be cast by the holders of the outstanding Voting Shares.
Section 2. Appointment of Rights Agent. The Company hereby appoints the
---------------------------
Rights Agent to act as agent for the Company and the holders of Rights in
accordance with the terms and conditions hereof, and the Rights Agent hereby
accepts such appointment. The Company may from time to time appoint such co-
Rights Agents as it may deem necessary or desirable.
Section 3. Issuance of Rights Certificates.
-------------------------------
(a) "Distribution Date" shall mean the date, after the date
hereof, that is the earliest of (i) the tenth Business Day (or such later day as
shall be designated by the Board of Directors of the Company) following the date
of the commencement of, or the first public announcement of the intent of any
Person, other than an Exempt Person, to commence a tender offer or exchange
offer, the consummation of which would cause any Person to become a 15%
Stockholder, (ii) the date of the first Section 11(a)(ii) Event or (iii) the
date of the first Section 13(a) Event.
(b) Until the Distribution Date, (i) the Rights shall be
represented by certificates for Common Shares (all of which certificates for
Common Shares shall be deemed to be Right Certificates) and not by separate
Right Certificates, (ii) the record holder of the Common Shares represented by
each of such certificates shall be the record holder of the Rights represented
thereby and (iii) the Rights shall be transferable only in connection with the
transfer of Common Shares. Until the earliest of the Distribution Date, the
Redemption Date or the Expiration Date, the surrender for transfer of such
certificates for Common Shares shall also constitute the surrender for transfer
of the Rights represented thereby.
(c) As soon as practicable after the Distribution Date, and
after notification by the Company, the Rights Agent shall send, at the expense
of the Company, by first-class, postage-prepaid mail to each record holder of
Common Shares, as of the Close of Business on the Distribution Date, at the
address of such holder shown on the records of the Company, a Right Certificate
substantially in the form of Exhibit A hereto representing one Right for each
---------
Common Share so held. From and after the Distribution Date, the Rights shall be
represented solely by such Right Certificates and may only be transferred by the
transfer of such Right Certificates, and the holders of such Right Certificates,
as listed in the records of the Company or any transfer agent or registrar for
such Rights, shall be the record holders of such Rights.
(d) Certificates for Common Shares issued at any time after the
Record Date and prior to the earliest of the Distribution Date, the Redemption
Date or the Expiration Date, shall have impressed on, printed on, written on or
otherwise affixed to them the following legend:
This certificate also evidences and entitles the holder hereof to certain
Rights as set forth in a Rights Agreement dated as of February 3, 1999 by
and between Bank Plus Corporation and American Stock Transfer & Trust
Company, as Rights
29
<PAGE>
Agent (the "Rights Agreement"), as amended to date, the terms and
conditions of which are hereby incorporated herein by reference and a copy
of which is on file at the principal executive offices of Bank Plus
Corporation. Under certain circumstances specified in the Rights Agreement,
such Rights will be represented by separate certificates and will no longer
be represented by this certificate. Under certain circumstances specified
in the Rights Agreement, Rights beneficially owned by certain persons may
become null and void. Bank Plus Corporation will mail to the record holder
of this certificate a copy of the Rights Agreement without charge promptly
following receipt of a written request therefor. As described in the Rights
Agreement, Rights Beneficially Owned by any Person who becomes a 15%
Stockholder or any Affiliate or Associate of a 15% Stockholder (as such
capitalized terms are defined in the Rights Agreement) shall become null
and void.
(e) Certificates for Common Shares issued at any time on or after the
Distribution Date and prior to the earlier of the Redemption Date or the Rights
Expiration Date shall have impressed on, printed on, written on or otherwise
affixed to them the following legend:
This certificate does not represent any Right issued pursuant to the terms
of a Rights Agreement dated as of February 3, 1999 by and between Bank Plus
Corporation and American Stock Transfer & Trust Company, as Rights Agent.
(f) In the event that at any time on or after the earlier of the date
of the first Section 11(a)(ii) Event or the date of the first Section 13(a)
Event and prior to the earlier of the Redemption Date or the Rights Expiration
Date, the Company shall issue any Common Shares pursuant to the exercise of
conversion rights, exchange rights, rights (other than Rights), warrants or
options that shall have been issued or granted prior to the earlier of the date
of the first Section 11(a)(ii) Event or the date of the first Section 13(a)
Event, then, unless the Board of Directors of the Company shall have provided
otherwise at the time of the issuance or grant of such conversion rights,
exchange rights, rights (other than Rights), warrants or options, the Rights
Agent shall, as soon as practicable after the date of such event, send by first-
class, postage-prepaid mail to the record holder of such Common Shares, at the
address of such holder as shown on the records of the Company, a Right
Certificate substantially in the form of Exhibit A hereto representing one Right
---------
for each Common Share so issued.
(h) Notwithstanding the foregoing provisions of this Section , the
Rights Agent shall not send any Right Certificate to any 15% Stockholder or any
of its Affiliates or Associates or to any Person if the Rights held by such
Person are Beneficially Owned by a 15% Stockholder or any of its Affiliates or
Associates. Any determination made by the Board of Directors of the Company as
to whether any Common Shares are or were Beneficially Owned at any time by a 15%
Stockholder or an Affiliate or Associate of a 15% Stockholder shall be
conclusive and binding upon all holders of Rights.
Section 4. Form of Right Certificates. The Right Certificates and the
--------------------------
form of assignment, including certificate, and the form of election to purchase,
including certificate,
30
<PAGE>
printed on the reverse thereof, when, as and if issued, shall be substantially
the same as Exhibit A hereto, and may have such marks of identification or
---------
designation and such legends, summaries or endorsements printed thereon as the
Company may deem appropriate and as are not inconsistent with the provisions of
this Agreement, or as may be required to comply with any applicable law or with
any rule or regulation made pursuant thereto or with any rule or regulation of
any stock exchange upon which the Rights or the securities of the Company
issuable upon exercise of the Rights may from time to time be listed, or to
conform to usage. Subject to Section 22 hereof, Right Certificates, whenever
issued, that are issued in respect of Common Shares that were issued and
outstanding as of the Close of Business on the Distribution Date, shall be dated
as of the Distribution Date.
Section 5. Countersignature and Registration.
---------------------------------
(a) The Right Certificates shall be executed on behalf of the Company
by its Chairman of the Board, its Vice Chairman of the Board, its President or
any Vice President, either manually or by facsimile signature, and may have
affixed thereto the Company's seal or a facsimile thereof attested by its
Secretary or any Assistant Secretary, either manually or by facsimile signature.
The Right Certificates shall be manually countersigned by the Rights Agent and
shall not be valid for any purpose unless so countersigned. In case any officer
of the Company who shall have signed any of the Right Certificates shall cease
to be such officer of the Company before countersignature by the Rights Agent
and issuance and delivery by the Company, such Right Certificates may
nevertheless be countersigned by the Rights Agent and issued and delivered by
the Company with the same force and effect as though the person who signed such
Right Certificates had not ceased to be such officer of the Company. Any Right
Certificate may be signed on behalf of the Company by any person who at the
actual date of such execution shall be a proper officer of the Company to sign
such Right Certificate, even though such person was not such an officer at the
date of the execution of this Agreement.
(b) Following the Distribution Date, the Rights Agent shall keep or
cause to be kept at its principal offices books for registration and transfer of
the Right Certificates issued hereunder. Such books shall show the names and
addresses of the respective holders of Right Certificates, the number of Rights
represented on its face by each Right Certificate and the date of each Right
Certificate.
Section 6. Transfer, Split Up, Combination and Exchange of Right
----------------------------------------------------
Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates.
---------------------------------------------------------------------
(a) Subject to the provisions of Sections 6(c), 7(d) and 14 hereof,
at any time after the Close of Business on the Distribution Date, and so long as
the Rights represented thereby remain outstanding, any one or more Right
Certificates may be transferred, split-up, combined or exchanged for one or more
Right Certificates representing the same aggregate number of Rights as the Right
Certificates surrendered. Any registered holder desiring to transfer, split up,
combine or exchange one or more Right Certificates shall make such request in
writing delivered to the Rights Agent, and shall surrender the Right
Certificates to be transferred, split up, combined or exchanged at the office of
the Rights Agent with the form of assignment, including certificate, on the
reverse side thereof completed and duly executed, with signature
31
<PAGE>
guaranteed. Thereupon, the Rights Agent shall countersign and deliver to the
person entitled thereto one or more Right Certificates, as so requested. The
Company may require payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer, split up,
combination or exchange of Right Certificates.
(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 Right Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to them and, at the Company's request,
reimbursement to the Company and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent and cancellation of
such Right Certificate if mutilated, the Company shall issue and deliver to the
Rights Agent for delivery to the record holder of such Right Certificate a new
Right Certificate of like tenor in lieu of such lost, stolen, destroyed or
mutilated Right Certificate.
(c) Notwithstanding anything to the contrary in this Section 6, the
Rights Agent shall not countersign and deliver a Right Certificate to any Person
if such Right Certificate represents, or would represent when held by such
Person, Rights that had become or would become null and void pursuant to Section
7(d) hereof.
Section 7. Exercise of Rights.
------------------
(a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions
of this Agreement, at any time after the Close of Business on the Distribution
Date and prior to the Close of Business on the earlier of the Redemption Date or
the Rights Expiration Date, the registered holder of any Right Certificate may
exercise the Rights represented thereby in whole or in part upon surrender of
such Right Certificate, with the form of election to purchase, including
certificate, on the reverse side thereof completed and duly executed, with
signature guaranteed, to the Rights Agent at the office of the Rights Agent at
American Stock Transfer & Trust Company, 40 Wall Street, 46th Floor, New York,
New York 10005, together with payment of the Exercise Price for each Right
exercised. Upon the exercise of an exercisable Right and payment of the Exercise
Price in accordance with the provisions of this Agreement, the holder of such
Right shall be entitled to receive, subject to adjustment as provided herein,
one one-hundredth of a Preferred Share (or, following the occurrence of a
Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other
securities).
(c) The "Exercise Price" for the exercise of each Right shall
initially be $25.00 and shall be payable in lawful money of the United States of
America in accordance with Section 7(f) hereof. The Exercise Price and the
number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii)
Event or a Section 13(a) Event, Common Shares and/or other securities) to be
acquired upon exercise of a Right shall be subject to adjustment from time to
time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of
this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from
and after the earlier of the date of the first Section 11(a)(ii) Event or the
date of the first Section 13(a)
32
<PAGE>
Event, any Rights that are or were Beneficially Owned by a 15% Stockholder or
any Affiliate or Associate of a 15% Stockholder at any time on or after the
Distribution Date shall be null and void, and for all purposes of this Agreement
such Rights shall thereafter be deemed not to be outstanding, and any holder of
such Rights (whether or not such holder is a 15% Stockholder or an Affiliate or
Associate of a 15% Stockholder) shall thereafter have no right to exercise such
Rights.
(e) Prior to the Distribution Date, if the Board of Directors of the
Company shall have determined that such action adequately protects the interests
of the holders of Rights, the Company may, in its discretion, substitute for all
or any portion of the Preferred Shares that would otherwise be issuable (after
the Close of Business on the Distribution Date) upon the exercise of each Right
and payment of the Exercise Price (i) cash, (ii) other equity securities of the
Company, (iii) debt securities of the Company, (iv) other property or (v) any
combination of the foregoing, in each case having an aggregate Current Market
Price equal to the aggregate Current Market Price of the Preferred Shares for
which substitution is made. Subject to Section 7(d) hereof, in the event that
the Company takes any action pursuant to this Section 7(e), such action shall
apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable
Rights, with the form of election to purchase, including certificate, completed
and duly executed, with signature guaranteed, accompanied by payment of the
Exercise Price for each Right to be exercised and an amount equal to any
applicable transfer tax required to be paid by the holder of such Right
Certificate in accordance with Section 9 hereof by certified check or cashier's
check payable to the order of the Company, the Rights Agent shall thereupon
promptly (i) requisition from the transfer agent of the Preferred Shares (or,
following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event,
Common Shares and/or securities) certificates for the number of Preferred Shares
(or such other securities) to be purchased, and the Company hereby irrevocably
authorizes such transfer agent to comply with all such requests, and/or, as
provided in Section 14 hereof, requisition from the depositary agent described
therein depositary receipts representing such number of one-hundredths of a
Preferred Share (or such other securities) as are to be purchased (in which case
certificates for the Preferred Shares (or such other securities) represented by
such receipts shall be deposited by the transfer agent with such depositary
agent) and the Company hereby directs such depositary agent to comply with such
request, (ii) when appropriate, requisition from the Company the amount of cash
to be paid in lieu of issuance of fractional Preferred Shares (or such other
securities) in accordance with Section 14 hereof, (iii) after receipt of such
certificates, depositary receipts or cash, cause the same to be delivered to or
upon the order of the registered holder of such Right Certificate, registered in
such name or names as may be designated by such holder and (iv) when
appropriate, after receipt thereof, deliver such cash to or upon the order of
the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the
exercisability of the Rights shall be suspended for such period as shall
reasonably be necessary for the Company to register and qualify under the
Securities Act and any applicable securities law of any jurisdiction the
Preferred Shares and/or Common Shares or other securities to be issued pursuant
to the exercise of the Rights; provided, however, that nothing contained in this
-------- -------
Section 7 shall relieve the Company of its obligations under Section 9(c)
hereof.
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(h) In case the registered holder of any Right Certificate shall
exercise less than all of the Rights represented thereby, a new Right
Certificate representing Rights equivalent to the Rights remaining unexercised
shall be issued by the Rights Agent to the registered holder of such Right
Certificate or to such holder's duly authorized assigns, subject to the
provisions of Section 14 hereof.
Section 8. Cancellation and Destruction of Right Certificates. All Right
--------------------------------------------------
Certificates surrendered for the purpose of exercise, transfer, split up,
combination or exchange shall, if surrendered to the Company or to any of its
agents, be delivered to the Rights Agent for cancellation or in canceled form,
or, if surrendered to the Rights Agent, shall be canceled by it, and no Right
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 so cancel and retire, any other Right
Certificate purchased or acquired by the Company otherwise than upon the
exercise thereof. The Rights Agent shall deliver all canceled Right Certificates
to the Company or shall, at the written request of the Company, destroy such
canceled Right Certificates, and in such case shall deliver a certificate of
destruction thereof to the Company.
Section 9. Reservation and Availability of Capital Stock.
---------------------------------------------
(a) Subject to Sections 7(e) and 9(f) hereof, the Company shall cause
to be reserved and kept available out of its authorized and unissued equity
securities (or out of its authorized and issued equity securities held in its
treasury), the number of such equity securities that will from time to time be
sufficient to permit the exercise in full of all outstanding Rights.
(b) In the event that any securities issuable upon exercise of the
Rights are listed on any national securities exchange, the Company shall use its
best efforts, from and after such time as the Rights become exercisable, to
cause all such securities issued or reserved for such issuance to be listed on
such exchange upon official notice of issuance upon such exercise.
(c) If necessary to permit the issuance of securities upon exercise
of the Rights, the Company shall use its best efforts, from and after the
Distribution Date, to register and qualify such securities under the Securities
Act, the Exchange Act and any other applicable securities laws and to keep such
registration effective until the earlier of the Redemption Date or the Rights
Expiration Date.
(d) The Company shall take all such action as may be necessary to
ensure that all securities delivered upon exercise of the Rights shall, at the
time of delivery of the certificates for such securities (subject to payment of
the Exercise Price), be duly and validly authorized and issued and fully paid
and nonassessable securities.
(e) The Company shall pay when due and payable any and all federal
and state transfer taxes and charges that may be payable in respect of the
issuance or delivery of the Right Certificates or of any securities upon the
exercise of Rights. The Company shall not, however, be required to pay any
transfer tax that may be payable in respect of any transfer or delivery of a
Right Certificate to a Person other than, or the issuance or delivery of a
certificate for securities
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<PAGE>
in respect of a name other than that of, the registered holder of the Right
Certificate representing Rights surrendered for exercise, or to issue or deliver
any certificate for securities upon the exercise of any Right until any such tax
shall have been paid (any such tax being payable by the holder of such Right
Certificate at the time of surrender) or until it has been established to the
Company's satisfaction that no such tax is due.
(f) With respect to the Common Shares and/or other securities
issuable pursuant to Section 11(a)(ii) and (iii) hereof, the foregoing covenants
shall be applicable only upon and following the occurrence of a Section
11(a)(ii) Event.
Section 10. Securities Record Date. Each Person in whose name any
----------------------
certificate for securities of the Company is issued upon the exercise of Rights
shall for all purposes be deemed to have become the holder of record of the
securities represented thereby on, and such certificate shall be dated, the date
upon which the Right Certificate representing such Rights was duly surrendered
and payment of the Exercise Price (and any applicable transfer taxes) was made;
provided, however, that if the date of such surrender and payment is a date
- -------- -------
upon which the securities transfer books of the Company are closed, such person
shall be deemed to have become the record holder of such securities on, and such
certificate shall be dated, the next succeeding Business Day on which the
securities transfer books of the Company are open.
Section 11. Adjustment of Exercise Price, Number of Shares Issuable Upon
------------------------------------------------------------
Exercise of Rights or Number of Rights. The Exercise Price, the and
--------------------------------------
kind of securities that may be purchased upon exercise of a Right and the number
of Rights outstanding are subject to adjustment from time to time as provided in
this Section 11.
(a)(i) In the event that the Company shall at any time after the Close
of Business on the Record Date and prior to the Close of Business on the
earlier of the Redemption Date or the Rights Expiration Date (A) declare or
pay any dividend on the Preferred Shares payable in Preferred Shares or
Voting Shares, (B) subdivide the outstanding Preferred Shares, (C) combine
the outstanding Preferred Shares into a smaller number of Preferred Shares
or (D) issue Preferred Shares or other securities of the Company (other
than those for which an adjustment is required under Section 11(b) hereof)
in a reclassification of the Preferred Shares (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation) or in a reorganization
of the Company, then, and upon each such event, the number and kind of
Preferred Shares or other securities issuable upon the exercise of a Right
on the date of such event shall be proportionately adjusted so that the
holder of any Right exercised on or after such date shall be entitled to
receive, upon the exercise thereof and payment of the Exercise Price, the
aggregate number and kind of Preferred Shares or other securities or other
property, as the case may be, that, if such Right had been exercised
immediately prior to such date and at a time when such Right was
exercisable and the transfer books of the Company were open, such holder
would have owned upon such exercise and would have been entitled to receive
by virtue of such dividend, subdivision, combination or reclassification.
If an event occurs that would require an adjustment under both this Section
11(a)(i) and Section 11(a)(ii) hereof, the adjustment
35
<PAGE>
provided for in this Section 11(a)(i) shall be in addition to, and shall be
made prior to, any adjustment required pursuant to Section 11(a)(ii)
hereof.
(ii) In the event that a 15% Ownership Date shall have occurred and
neither the Redemption Date nor the Expiration Date shall have occurred
prior to the tenth Business Day following such 15% Ownership Date (a
"Section 11(a)(ii) Event"), then, and upon each such Section 11(a)(ii)
Event, proper provision shall be made so that, except as provided in
Section 7(d) hereof, each holder of a Right shall thereafter have the right
to receive, upon the exercise thereof in accordance with the terms of this
Agreement and payment of the then current Exercise Price, such number of
Common Shares of the Company as shall equal the result obtained by (A)
multiplying the then current Exercise Price by the then number of one-
hundredths of a Preferred Share for which a Right was exercisable
immediately prior to such Section 11(a)(ii) Event (or, if the Distribution
Date shall not have occurred prior to the date of such Section 11(a)(ii)
Event, the number of one-hundredths of a Preferred Share for which a Right
would have been exercisable if the Distribution Date had occurred on the
Business Day immediately preceding the date of such Section 11(a)(ii)
Event), and (B) dividing that product by 50% of the Current Market Price of
a Common Share on the date of occurrence of the relevant Section 11(a)(ii)
Event (such number of shares being hereinafter referred to as the
"Adjustment Shares"). Successive adjustments shall be made pursuant to this
paragraph each time a Section 11(a)(ii) Event occurs.
(iii) In the event that on the date of a Section 11(a)(ii) Event the
aggregate number of Common Shares that are authorized by the Company's
Certificate of Incorporation, as amended from time to time, but not
outstanding or reserved for issuance for purposes other than upon exercise
of the Rights is less than the aggregate number of Adjustment Shares
thereafter issuable upon the exercise in full of the Rights in accordance
with Section 11(a)(ii) hereof (the excess of such number of Adjustment
Shares over and above such number of Common Shares being hereinafter
referred to as the "Unavailable Adjustment Shares"), then, and upon each
such event, the Company shall substitute for the pro rata portion of the
Unavailable Adjustment Shares that would otherwise be issuable thereafter
upon the exercise of each Right and payment of the Exercise Price (A) cash,
(B) other equity securities of the Company (including, without limitation,
shares of preferred stock of the Company or units of such shares having the
same Current Market Price as one Common Share (a "Common Share
Equivalent")), (C) debt securities of the Company, (D) other property or
(E) any combination of the foregoing, in each case having an aggregate
Current Market Price equal to the aggregate Current Market Price of the
Unavailable Adjustment Shares for which substitution is made. Subject to
Section 7(d) hereof, in the event that the Company takes any action
pursuant to this Section 11(a)(iii), such action shall apply uniformly to
all outstanding Rights.
(b) In the event that the Company shall, at any time after the Close
of Business on the Record Date and prior to the Close of Business on the earlier
of the Redemption Date or the Rights Expiration Date, fix a record date for the
issuance of rights, options or warrants to all holders of Preferred Shares
entitling them initially to subscribe for or purchase
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<PAGE>
Preferred Shares (or shares having the same rights, privileges and preferences
as the Preferred Shares ("Preferred Share Equivalents")) or securities
convertible into Preferred Shares or Preferred Share Equivalents, at a price per
Preferred Share or Preferred Share Equivalent (or having a conversion price per
share, if a security convertible into Preferred Shares or Preferred Share
Equivalents) less than the Current Market Price per Preferred Share on such
record date, then, and upon each such event, the Exercise Price to be in effect
after such record date shall be determined by multiplying the Exercise Price in
effect immediately prior to such record date by a fraction, the numerator of
which shall be equal to the sum of the number of Preferred Shares outstanding on
such record date plus the number of Preferred Shares that the aggregate offering
price of the total number of Preferred Shares and/or Preferred Share Equivalents
to be so offered (and/or the aggregate initial conversion price of the
convertible securities to be so offered) would purchase at such Current Market
Price, and the denominator of which shall be equal to the number of Preferred
Shares outstanding on such record date plus the number of additional Preferred
Shares and/or Preferred Share Equivalents to be offered for subscription or
purchase (or into which the convertible securities to be so offered are
initially convertible); provided, however, that if such rights, options or
-------- -------
warrants are not exercisable immediately upon issuance but become exercisable
only upon the occurrence of a specified event or the passage of a specified
period of time, then the adjustment to the Exercise Price shall be made and
become effective only upon the occurrence of such event or such passage of time,
and such adjustment shall be made as if the record date for the issuance of such
rights, options or warrants had been the Business Day immediately preceding the
date upon which such rights, options or warrants became exercisable. Preferred
Shares owned by or held for the account of the Company shall not be deemed
outstanding for the purpose of any such computation. Such adjustment to the
Exercise Price shall be made successively whenever such a record date is fixed,
and in the event that such rights or warrants are not so issued, the Exercise
Price shall be adjusted to be the Exercise Price that would then be in effect if
such record date had not been fixed.
(c) In the event that the Company shall, at any time after the Close
of Business on the Record Date and prior to the Close of Business on the earlier
of the Redemption Date or the Rights Expiration Date, fix a record date for the
making of a distribution to all holders of the Preferred Shares (including any
such distribution made in connection with a consolidation or merger in which the
Company is the surviving corporation) of assets (other than a distribution for
which an adjustment is required under Section 11(a)(i) or (b) hereof or a
regular quarterly cash dividend), then the Exercise Price to be in effect after
such record date shall be determined by multiplying the Exercise Price in effect
immediately prior to such record date by a fraction, the numerator of which
shall be equal to the excess of the Current Market Price per Preferred Share on
such record date over and above the fair market value of the portion of the
securities or assets to be so distributed with respect to one Preferred Share,
and the denominator of which shall be equal to such Current Market Price per
Preferred Share. Such adjustments shall be made successively whenever such a
record date is fixed, and in the event that such a distribution is not so made,
the Exercise Price shall be adjusted to be the Exercise Price that would then be
in effect if such record date had not been fixed.
(d) For the purpose of any computation under this Section 11, if the
Preferred Shares are not publicly held or traded, the "Current Market Price" per
Preferred Share shall be conclusively deemed to be the Current Market Price per
Common Share multiplied by 100.
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<PAGE>
(e) No adjustment in the Exercise Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in the then
current Exercise Price; provided, however, that any adjustments that by reason
-------- -------
of this Section 11(e) are not required to be made shall be cumulated and taken
into account in any subsequent adjustment. All calculations under this Section
11 shall be made to the nearest cent or to the nearest one-thousandth of a
Common Share or other share or one-millionth of a Preferred Share, as the case
may be.
(f) If, as a result of an adjustment made pursuant to Section 11(a)
hereof, the holder of any Right shall, upon exercise thereof, be entitled to
receive any securities of the Company other than Preferred Shares, and if an
event occurs in respect of such securities that, if it were to occur in respect
of Preferred Shares, would require an adjustment under this Section 11 in
respect of Preferred Shares, then the number of such other securities so
receivable upon exercise of any Right shall be subject to adjustment from time
to time in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to Preferred Shares contained in this Section 11, and
the other provisions of this Agreement with respect to Preferred Shares shall
apply on like terms to any such other securities.
(g) All Rights originally issued by the Company subsequent to any
adjustment made to the Exercise Price hereunder shall represent the right to
purchase, at the adjusted Exercise Price, the number of one-hundredths of a
Preferred Share purchasable from time to time hereunder upon exercise of the
Rights, all subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its election as provided
in Section 11(i) below, upon each adjustment of the Exercise Price as a result
of the calculations made in Sections 11(b) and (c) hereof, each Right
outstanding immediately prior to the making of such adjustment shall thereafter
represent the right to purchase, at the adjusted Exercise Price, that number of
one-hundredths of a Preferred Share (calculated to the nearest one-millionth of
a Preferred Share) obtained by multiplying (i) the number of one-hundredths of a
Preferred Share purchasable upon the exercise of one Right immediately prior to
such adjustment of the Exercise Price by (ii) the Exercise Price in effect
immediately prior to such adjustment, and dividing the product so obtained by
the Exercise Price in effect immediately after such adjustment.
(i) The Company may elect, on or after the date of any adjustment of
the Exercise Price, to adjust the number of Rights instead of making any
adjustment in the number of Preferred Shares purchasable upon the exercise of a
Right. Each of the Rights outstanding after such adjustment of the number of
Rights shall be exercisable for the number of one-hundredths of a Preferred
Share for which a Right was exercisable immediately prior to such adjustment.
Each Right held of record prior to such adjustment of the number of Rights shall
become that number of Rights (calculated to the nearest one one-thousandth of a
Right) obtained by dividing the Exercise Price in effect immediately prior to
the adjustment of the Exercise Price by the Exercise Price in effect immediately
after such adjustment of the Exercise Price. The Company shall make a public
announcement of its election to adjust the number of Rights pursuant to this
Section 11(i), indicating the record date for the adjustment and, if known at
the time, the amount of the adjustment to be made. Such record date may be the
date on which the Exercise Price is adjusted or any day thereafter, but, if
separate Right Certificates have been issued, it shall be at
38
<PAGE>
least 10 days after the date of such public announcement. If separate Right
Certificates have been issued, upon each adjustment of the number of Rights
pursuant to this Section 11(i), the Company shall, as promptly as practicable,
cause to be distributed to holders of record of Right Certificates on such
record date Right Certificates representing, subject to Section 14 hereof, the
additional Rights to which such holders shall be entitled as a result of such
adjustment or, at the option of the Company, cause to be distributed to such
holders of record in substitution and replacement for the Right Certificates
held by such holders prior to the date of such adjustment, and upon surrender
thereof if required by the Company, new Right Certificates representing all the
Rights to which such holders shall be entitled after such adjustment. Right
Certificates to be so distributed shall be issued, executed and countersigned in
the manner provided for herein (and may bear, at the option of the Company, the
adjusted Exercise Price) and shall be registered in the names of the holders of
record of Right Certificates on the record date specified in the public
announcement.
(j) Irrespective of any adjustment or change in the Exercise Price or
the number of one-hundredths of a Preferred Share issuable upon the exercise of
one Right, the Right Certificates theretofore and thereafter issued may continue
to express the Exercise Price per one one-hundredth of a Preferred Share and the
number of Preferred Shares issuable upon the exercise of one Right that were
expressed in the initial Right Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment reducing
the Exercise Price below one one-hundredth of the then par value, if any, of the
Preferred Shares issuable upon exercise of the Rights, the Company shall take
any corporate action that may, in the advice or opinion of its counsel, be
necessary in order that the Company may validly and legally issue fully paid and
nonassessable one one-hundredths of a Preferred Share at such adjusted Exercise
Price.
(l) In any case in which this Section 11 shall require that an
adjustment in the Exercise 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
of the number of one-hundredths of a Preferred Share and other capital stock or
securities of the Company, if any, issuable upon such exercise over and above
the number of one-hundredths of a Preferred Share and other capital stock or
securities of the Company, if any, issuable upon such exercise on the basis of
the Exercise Price in effect prior to such adjustment; provided, however, that
-------- -------
the Company shall deliver to such holder a due bill or other appropriate
instrument representing 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 further adjustments in the number of one-
hundredths of a Preferred Share that may be purchased upon exercise of one
Right, and such further adjustments in the Exercise Price, in addition to those
adjustments expressly required by this Section 11, as and to the extent that the
Company in its sole discretion shall determine to be advisable in order that any
(i) consolidation or subdivision of the Preferred Shares, (ii) issuance wholly
for cash of any Preferred Shares at less than the Current Market Price thereof,
(iii) issuance wholly for cash of Preferred Shares or securities that by their
terms are convertible into or exchangeable for
39
<PAGE>
Preferred Shares, (iv) dividends on Preferred Shares payable in Preferred Shares
or (v) issuance of rights, options or warrants referred to in Section 11(b)
hereof, hereafter made by the Company to holders of its Preferred Shares shall
not be taxable to such stockholders.
(n) In the event that the Company shall, at any time after the Close
of Business on the Record Date and prior to the Close of Business on the
earliest of the date of the first Section 11(a)(ii) Event, the date of the first
Section 13(a) Event, the Redemption Date or the Rights Expiration Date, (i) pay
any dividend on the Common Shares payable in Common Shares, (ii) subdivide the
outstanding Common Shares, (iii) combine the outstanding Common Shares into a
smaller number of Common Shares or (iv) issue Common Shares in a
reclassification of the Common Shares (including any such reclassification in
connection with a consolidation or merger in which the Company is the continuing
or surviving corporation), then, and upon each such event, the Exercise Price to
be in effect after such event shall be determined by multiplying the Exercise
Price in effect immediately prior to such event by a fraction, the numerator of
which shall be equal to the number of Common Shares outstanding immediately
prior to such event and the denominator of which shall be equal to the number of
Common Shares outstanding immediately after such event. Successive adjustments
shall be made pursuant to this Section 11(n) each time such a dividend is paid
or such a subdivision, combination or reclassification is effected. If an event
occurs that would require an adjustment under both this Section 11(n) and
Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(n)
shall be in addition to, and shall be made prior to, any adjustment required
pursuant to Section 11(a)(ii) hereof.
Section 12. Certificate of Adjusted Exercise Price or Number of Shares
----------------------------------------------------------
Issuable Upon Exercise of Rights. Whenever an adjustment is made as
--------------------------------
provided in Section 11 hereof, the Company shall promptly (a) prepare a
certificate setting forth such adjustment and a brief statement of the facts
giving rise to such adjustment, (b) file with the Rights Agent and with each
transfer agent for the securities issuable upon exercise of the Rights a copy of
such certificate and (c) mail a brief summary thereof to each holder of Rights
in accordance with Section 25 hereof. Notwithstanding the foregoing sentence,
the failure of the Company to make such certification or to give such notice
shall not affect the validity or the force and effect of such adjustment. Any
adjustment to be made pursuant to Sections 11 or 13 hereof shall be effective as
of the date of the event giving rise to such adjustment. The Rights Agent shall
be fully protected in relying on any such certificate and on any adjustment
therein contained, and shall not be obligated or responsible for calculating any
adjustment nor shall it be deemed to have knowledge of such an adjustment unless
and until it shall have received such certificate.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
------------------------------------------------------
Earning Power.
-------------
(a) In the event (a "Section 13(a) Event") that, at any time on or
after the 15% Ownership Date and prior to the earlier of the Redemption Date or
the Rights Expiration Date, (1) the Company shall, directly or indirectly,
consolidate with or merge with and into any other Person and the Company shall
not be the continuing or surviving corporation in such consolidation or merger,
(2) any Person shall, directly or indirectly, consolidate with or merge
40
<PAGE>
with and into the Company and the Company shall be the continuing or surviving
corporation in such merger and, in connection with such merger, all or part of
the Common Shares shall be changed into or exchanged for stock or other
securities of any Person or cash or any other property, or (3) the Company
and/or any one or more of its Subsidiaries shall, directly or indirectly, sell
or otherwise transfer, in one or more transactions (other than transactions in
the ordinary course of business), assets or earning power aggregating more than
50% of the assets or earning power of the Company and its Subsidiaries (taken as
a whole) to any Person or Persons other than the Company or one or more of its
wholly-owned Subsidiaries (such Persons, together with the Persons described in
clauses (1) and (2) above shall be collectively referred to in this Section as
the "Surviving Person"), then, and in each such case, proper provision shall be
made so that:
(i) except as provided in Section 7(d) hereof, each holder of a Right
shall thereafter have the right to receive, upon the exercise thereof in
accordance with the terms of this Agreement and payment of the then current
Exercise Price, in lieu of the securities or other property otherwise
purchasable upon such exercise, such number of validly authorized and
issued, fully paid and nonassessable Common Shares of the Surviving Person
(and if such Surviving Person has more than one class or series of Common
Shares, such number of validly authorized and issued, fully paid and
nonassessable Common Shares of each series or class) as shall be equal to a
fraction, the numerator of which is:
(A) if a Section 11(a)(ii) Event has not occurred prior to such
Section 13(a) Event, the product of the then current Exercise Price
multiplied by the number of one-hundredths of a Preferred Share
purchasable upon the exercise of one Right immediately prior to the
first Section 13(a) Event (or, if the Distribution Date shall not have
occurred prior to the date of such Section 13(a) Event, the number of
one-hundredths of a Preferred Share that would have been so
purchasable if the Distribution Date had occurred on the Business Day
immediately preceding the date of such Section 13(a) Event), or
(B) if a Section 11(a)(ii) Event has occurred prior to such
Section 13(a) Event, the product of the Exercise Price in effect
immediately prior to such Section 11(a)(ii) Event multiplied by the
number of one-hundredths of a Preferred Share purchasable upon the
exercise of one Right immediately prior to such Section 11(a)(ii)
Event (or, if the Distribution Date shall not have occurred prior to
the date of such Section 11(a)(ii) Event, the number of one-hundredths
of a Preferred Share that would have been so purchasable if the
Distribution Date had occurred on the Business Day immediately
preceding the date of such Section 11(a)(ii) Event),
and the denominator of which is 50% of the Current Market Price per Common
Share of the Surviving Person on the date of consummation of such Section
13(a) Event;
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<PAGE>
(ii) the Surviving Person shall thereafter be liable for and shall
assume, by virtue of such consolidation, merger, sale or transfer, all the
obligations and duties of the Company pursuant to this Agreement;
(iii) the term "Company" shall thereafter be deemed to refer to the
Surviving Person; and
(iv) the Surviving Person shall take such steps (including, but not
limited to, the reservation of a sufficient number of its Common Shares in
accordance with Section 9 hereof) in connection with such consummation as
may be necessary to ensure that the provisions hereof shall thereafter be
applicable to its Common Shares thereafter deliverable upon the exercise of
Rights.
(b) Notwithstanding the foregoing, if the Section 13(a) Event is the
sale or transfer in one or more transactions of assets or earning power
aggregating more than 50% of the assets or earning power of the Company and its
Subsidiaries (taken as a whole), but less than 100% thereof, then each Person
acquiring all or a portion thereof shall assume the obligations of the Company
as to a fraction of each of the Rights equal to the fraction of the assets of
the Company and its Subsidiaries (taken as a whole) acquired by such Person, and
the obligations of the Company as to the remaining fraction of each of the
Rights shall continue to be the obligations of the Company.
(c) The Company shall not consummate a Section 13(a) Event unless
prior thereto the Company and the Surviving Person shall have executed and
delivered to the Rights Agent a supplemental agreement confirming that such
Surviving Person shall, upon consummation of such Section 13(a) Event, assume
this Agreement in accordance with Section 13 hereof, that all rights of first
refusal or preemptive rights in respect of the issuance of Common Shares of such
Surviving Person upon exercise of outstanding Rights have been waived and that
such Section 13(a) Event shall not result in a default by such Surviving Person
under this Agreement, and further providing that, as soon as practicable after
the date of consummation of such Section 13(a) Event, such Surviving Person
shall:
(i) prepare and file a registration statement under the Securities
Act with respect to the Rights and the securities purchasable upon exercise
of the Rights on an appropriate form, use its best efforts to cause such
registration statement to become effective as soon as practicable after
such filing, use its best efforts to cause such registration statement to
remain effective (with a prospectus at all times meeting the requirements
of the Securities Act) until the Rights Expiration Date, and similarly
comply with all applicable state securities laws;
(ii) use its best efforts to list (or continue the listing of) the
Rights and the Common Shares of the Surviving Person purchasable upon
exercise of the Rights on a national securities exchange, or use its best
efforts to cause the Rights and such Common Shares to meet the eligibility
requirements for quotation on NASDAQ; and
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(iii) deliver to holders of the Rights historical financial
statements for such Surviving Person that comply in all respects with the
requirements for registration on Form 10 (or any successor form) under the
Exchange Act.
(d) In the event that at any time after the occurrence of a Section
11(a)(ii) Event some or all of the Rights shall not have been exercised pursuant
to Section 11 hereof prior to the date of a Section 13(a) Event, such Rights
shall thereafter be exercisable only in the manner described in Section 13(a)
hereof. In the event that a Section 11(a)(ii) Event occurs on or after the date
of a Section 13(a) Event, Rights shall not be exercisable pursuant to Section 11
hereof but shall instead be exercisable pursuant to, and only pursuant to, this
Section 13.
(e) The provisions of this Section 13 shall apply to each successive
merger, consolidation, sale or other transfer constituting a Section 13(a)
Event.
Section 14. Fractional Rights and Fractional Shares.
---------------------------------------
(a) The Company shall not be required to issue fractions of Rights or
to distribute Right Certificates that represent fractional Rights. If the
Company shall determine not to issue such fractional Rights, the Company shall
pay to the registered holders of the Right Certificates with respect to which
such fractional Rights would otherwise be issuable, at the time such fractional
Rights would otherwise have been issued as provided herein, an amount in cash
equal to the same fraction of the Current Market Price of a whole Right on the
Business Day immediately prior to the date upon which such fractional Rights
would otherwise have been issuable.
(b) The Company shall not be required to issue fractions of Common
Shares or Preferred Shares (other than fractions that are integral multiples of
one one-hundredth of a Preferred Share) upon exercise of Rights, or to
distribute certificates that represent fractional Common Shares or Preferred
Shares (other than fractions that are integral multiples of one one-hundredth of
a Preferred Share). Fractions of Preferred Shares in integral multiples of one
one-hundredth of a Preferred Share may, at the election of the Company, be
represented by depositary receipts, pursuant to an appropriate agreement between
the Company and a depositary selected by it, provided that such agreement shall
provide that the holders of such depositary receipts shall have all the rights,
privileges and preferences to which they are entitled as beneficial owners of
Preferred Shares. If the Company shall determine not to issue fractional Common
Shares or Preferred Shares (or depositary receipts in lieu of Preferred Shares),
the Company shall pay to the registered holders of Right Certificates with
respect to which such fractional Common Shares or Preferred Shares would
otherwise be issuable, at the time such Rights are exercised as provided herein,
an amount in cash equal to the same fraction of the Current Market Price of a
whole Common Share or Preferred Share, as the case may be. For purposes of this
Section 14(b), the Current Market Price of a whole Common Share or Preferred
Share shall be the Closing Price per share for the Trading Day immediately prior
to the date of such exercise.
(c) The holder of a Right, by the acceptance of such Right, expressly
waives such holder's right to receive any fractional Rights or any fractional
Common Shares or Preferred Shares upon exercise of such Right, except as
permitted by this Section 14.
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Section 15. Rights of Action. All rights of action in respect of this
----------------
Agreement, except the rights of action given to the Rights Agent under Section
18 hereof, are vested in the respective registered holders of the Right
Certificates and certificates for Common Shares representing Rights, and any
registered holder of any Right Certificate or of such certificate for Common
Shares, without the consent of the Rights Agent or of the holder of any other
Right Certificate or any other certificate for Common Shares may, in such
holder's own behalf and for such holder's own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company to
enforce, or otherwise act in respect of, such holder's right to exercise the
Rights represented by such Right Certificate or by such certificate for Common
Shares in the manner provided in such Certificate and in this Agreement. Without
limiting the foregoing or any remedies available to the holders of Rights, it is
specifically acknowledged that the holders of Rights would not have an adequate
remedy at law for any breach of this Agreement and shall be entitled to specific
performance, and injunctive relief against actual or threatened violations, of
the obligations of any Person under 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 every other holder of a Right that:
(a) prior to the Distribution Date, the Rights shall be represented
by certificates for Common Shares registered in the name of the holders of such
Common Shares (which certificates for Common Shares shall also constitute Right
Certificates), and each such Right shall be transferable only in connection with
the transfer of such Common Shares;
(b) after the Distribution Date, the Right Certificates shall only be
transferable on the registry books of the Rights Agent if surrendered at the
principal office of the Rights Agent, duly endorsed or accompanied by a proper
instrument of transfer; and
(c) the Company and the Rights Agent may deem and treat the person in
whose name the Right Certificate is registered as the absolute owner thereof and
of the Rights represented thereby (notwithstanding any notations of ownership or
writing on the Right Certificate by anyone other than the Company or the Rights
Agent) for all purposes whatsoever, and neither the Company nor the Rights Agent
shall be affected by any notice to the contrary.
Section 17. Right Holder and Right Certificate Holder Not Deemed a
------------------------------------------------------
Stockholder. No holder, as such, of any Right or Right Certificate
-----------
shall be entitled to vote, receive dividends or be deemed for any purpose the
holder of the securities of the Company that may at any time be issuable upon
the exercise of the Rights represented thereby, nor shall anything contained
herein or in any Right Certificate be construed to confer upon the holder of any
Right or Right Certificate, as such, any of the rights of a stockholder of the
Company or any right to vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, to give or withhold consent to
any corporate action, to receive notice of meetings or other actions affecting
stockholders (except as provided in Section 25 hereof), or to receive dividends
or subscription rights, or otherwise, in each case until such Right or the
Rights represented by such Right Certificate shall have been exercised in
accordance with the provisions hereof.
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Section 18. Concerning the Rights Agent.
---------------------------
(a) The Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from time to time,
on demand of the Rights Agent, its reasonable expenses and counsel fees and
disbursements and other disbursements incurred in the administration and
execution of this Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights Agent for, and to
hold it harmless against, any loss, liability, or expense, incurred without
negligence, bad faith or willful misconduct on the part of the Rights Agent, for
anything done or omitted by the Rights Agent in connection with the acceptance
and administration of this Agreement, including the costs and expenses of
defending against any claim of liability. The costs and expenses of enforcing
this right of indemnification shall also be paid by the Company. The
indemnification provided for hereunder shall survive the expiration of the
Rights and the termination of this Agreement.
(b) The Rights Agent may conclusively rely upon and shall be
protected and shall incur no liability for or in respect of any action taken,
suffered or omitted by it in connection with its administration of this
Agreement in reliance upon any Right Certificate or certificate for Preferred
Shares or Common Shares or for other securities of the Company, instrument of
assignment or transfer, power of attorney, endorsement, affidavit, letter,
notice, direction, consent, certificate, statement or other paper or document
believed by it to be genuine and to be signed, executed and, where necessary,
verified or acknowledged, by the proper person or persons, or otherwise upon the
advice of its counsel as set forth in Section 20 hereof.
(c) Notwithstanding anything in this Agreement to the contrary, in no
event shall the Rights Agent be liable for special, indirect or consequential
loss or damage of any kind whatsoever (including but not limited to lost
profits), even if the Rights Agent has been advised of the likelihood of such
loss or damage and regardless of the form of the action.
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 that such corporation would be
eligible for appointment as a successor Rights Agent under the provisions of
Section 21 hereof. If, at the time such successor Rights Agent shall succeed to
the agency created by this Agreement, any of the Right Certificates shall have
been countersigned but not delivered, any such successor Rights Agent may adopt
the countersignature of the predecessor Rights Agent and deliver such Right
Certificates so countersigned; and if at that time any of the Right Certificates
shall not have been countersigned, any successor Rights Agent may countersign
such Right Certificates either in the name of the predecessor Rights Agent or in
the name of the successor Rights Agent; and in all such cases such Right
Certificates shall have the full force provided in such Right Certificate and in
this Agreement.
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(b) If at any time the name of the Rights Agent shall be changed, and
at such time any of the Right Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the countersignature under its prior name
and deliver Right Certificates so countersigned; and if at that time any of the
Right Certificates shall not have been countersigned, the Rights Agent may
countersign such Right Certificates either in its prior name or in its changed
name; and in all such cases such Right Certificates shall have the full force
provided in such Right Certificate and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent undertakes the
----------------------
duties and obligations imposed by this Agreement (and no implied duties or
obligations shall be read into this Agreement against the Rights Agent) upon the
following terms and conditions, by all of which the Company and the holders of
Right Certificates, by their acceptance of the Rights, shall be bound:
(a) Before the Rights Agent acts or refrains from acting, it 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 be
proved or established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively proved and
established by a certificate signed by any one of the Chairman of the Board, the
Vice Chairman of the Board, the President, any Vice President, the Treasurer,
the Secretary or any Assistant Secretary of the Company and delivered to the
Rights Agent; and such certificate shall be full authorization to the Rights
Agent for any action taken or suffered in good faith by it under the provisions
of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any
other Person only for its own negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement, or in the Right
Certificates (except its countersignature thereof), or be required to verify the
same, but all such statements and recitals are and shall be deemed to have been
made by the Company only.
(e) The Rights Agent shall not be under any responsibility in respect
of the validity of this Agreement or the execution and delivery hereof (except
the due authorization, execution and delivery hereof by the Rights Agent) or in
respect of the validity or execution of any Right Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement or in any Right
Certificate; nor shall it be responsible for any change in the exercisability of
the Rights (including any Rights becoming null and void pursuant to Section 7(d)
hereof) or any adjustment in the terms of the Rights (including the manner,
method or amount thereof) provided for in Sections 7, 11, 13 and 23 hereof, or
the ascertaining of the existence of facts that would require
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<PAGE>
any such change or adjustment (except with respect to the exercise of Rights
represented by Right Certificates after actual notice that such change or
adjustment is required); nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any
Preferred Shares or Common Shares or other securities to be issued pursuant to
this Agreement or any Right Certificate, or as to whether any Preferred Shares
or Common Shares or other securities will, when issued, be validly authorized
and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be required
by the Rights Agent for the carrying out or performing by the Rights Agent of
the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from any
one of the Chairman of the Board, the Vice Chairman, the President, any Vice
President, the Chief Financial Officer, the Secretary or the Treasurer of the
Company, and to apply to such officers for advice or instructions in connection
with its duties, and it shall not be liable for any action taken or suffered to
be taken by it in good faith in accordance with instructions of any such officer
or for any delay in acting while waiting for those 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 ten 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 from the Company in response to such application to the
contrary.
(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 Rights
Agent under this Agreement. Nothing herein shall preclude the Rights Agent from
acting in any other capacity for the Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys or agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any such act, default,
neglect or misconduct, provided that reasonable care was exercised in the
selection and continued employment thereof.
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(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) The Rights Agent shall not be required to take notice or be
deemed to have notice of any fact, event or determination (including, without
limitation, any dates or events defined in this Agreement or the designation of
any Person as a 15% Stockholder, Affiliate or Associate) under this Agreement
unless and until the Rights Agent shall be specifically notified in writing by
the Company of such fact, event or determination.
(l) 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 not been
completed, the Rights Agent shall not take any further action with respect to
such requested exercise or transfer without first consulting with the Company.
Section 21. Change of Rights Agent. The Rights Agent or any successor
----------------------
Rights Agent may resign and be discharged from its duties under this Agreement
upon 30-days' notice in writing mailed to the Company and to each transfer agent
of the Common Shares and Preferred Shares by registered or certified mail, and,
at the expense of the Company to the holders of the Right Certificates by first-
class mail. The Company may remove the Rights Agent or any successor Rights
Agent upon 30-days' notice in writing, mailed to the Rights Agent or successor
Rights Agent, as the case may be, and to each transfer agent of the Common
Shares and Preferred Shares by registered or certified mail, and to the holders
of the Right Certificates by first-class mail. If the Rights Agent shall resign
or be removed or shall otherwise become incapable of acting as such, the Company
shall appoint a successor to the Rights Agent. If the Company shall fail to
make such appointment within a period of 30 days after giving notice of such
removal or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or by the holder of a
Right Certificate (who shall, with such notice, submit such holder's Right
Certificate for inspection by the Company), then the Company shall become the
Rights Agent and the registered holder of any Right Certificate may apply to any
court of competent jurisdiction for the appointment of a new Rights Agent. Any
successor Rights Agent, whether appointed by the Company or by such a court,
shall be a corporation organized and doing business under the laws of the United
States or of the States of New York or California (or of 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 California), in good standing,
having a principal office in New York or California, that is authorized under
such laws to exercise corporate trust or stock transfer powers and is subject to
supervision or examination by federal or state authority and that has at the
time of its appointment as Rights Agent a combined capital and surplus of at
least $50,000,000. 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
48
<PAGE>
of this Agreement and so that the successor Rights Agent may appropriately act
as Rights Agent hereunder. 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 Shares and
Preferred Shares, and mail a notice thereof in writing to the registered holders
of the Right Certificates. Failure to give any notice provided for in this
Section 21, however, or any defect therein, shall not affect the legality or
validity of the resignation or removal of the Rights Agent or the appointment of
the successor Rights Agent, as the case may be.
Section 22. Issuance of New Right Certificates. Notwithstanding any of
----------------------------------
the provisions of this Agreement or of the Right Certificates to the contrary,
the Company may, at its option, issue new Right Certificates in such form as may
be approved by the Board of Directors in order to reflect any adjustment or
change in the Exercise Price and the number or kind or class of shares or other
securities or property purchasable upon exercise of the Rights in accordance
with the provisions of this Agreement.
Section 23. Redemption of Rights.
--------------------
(a) Until the earliest of (i) the date of the first Section 11(a)(ii)
Event, (ii) the date of the first Section 13(a) Event or (iii) the Rights
Expiration Date, the Board of Directors of the Company may, at its option,
authorize and direct the redemption of all, but not less than all, of the then
outstanding Rights at a redemption price of $.001 per Right, as such redemption
price shall be appropriately adjusted to reflect any stock split, stock dividend
or similar transaction occurring after the date hereof (the "Redemption Price"),
and the Company shall so redeem the Rights.
(b) Immediately upon the action of the Board of Directors of the
Company authorizing and directing the redemption of the Rights pursuant to
subsection (a) of this Section 23, or at such time and date thereafter as it may
specify, and without any further action and without any notice, the right to
exercise Rights shall terminate and the only right thereafter of the holders of
Rights shall be to receive the Redemption Price. Within ten (10) Business Days
after the date of such action, the Company shall give notice of such redemption
to the holders of Rights by mailing such notice to all holders of Rights at
their last addresses as they appear upon the registry books of the Rights Agent
or, if prior to the Distribution Date, on the registry books of the transfer
agent for the Common Shares. Any notice that is mailed in the manner herein
provided shall be deemed given, whether or not the holder receives such notice,
but neither the failure to give any such notice nor any defect therein shall
affect the legality or validity of such redemption. Each such notice of
redemption shall state the method by which the payment of the Redemption Price
will be made. Neither the Company nor any of its Affiliates or Associates may,
directly or indirectly, redeem, acquire or purchase for value any Rights in any
manner other than that specifically set forth in Section 24 hereof or in this
Section 23, or in connection with the purchase of Common Shares prior to the
earlier of the date of the first Section 11(a)(ii) Event or the date of the
first Section 13(a) Event.
(c) The Company may, at its option, pay the Redemption Price in cash,
Common Shares, Preferred Shares, other equity securities of the Company, debt
securities of the
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Company, other property or any combination of the foregoing, in each case having
an aggregate Current Market Price on the Redemption Date equal to the Redemption
Price.
Section 24. Exchange of Rights.
------------------
(a) At any time during the period of 180 days after a Section
11(a)(ii) Event, the Board of Directors of the Company may, at its option,
authorize and direct the exchange of all, but not less than all, of the then
outstanding Rights for Common Shares, one one-hundredths of Preferred Shares,
debt securities of the Company, other property, or any combination of the
foregoing, in each case having an aggregate Current Market Price equal to the
result obtained by (i) multiplying the Current Market Price per Common Share on
the record date for such exchange by the number of Common Shares for which a
Right is exercisable on such record date and (ii) subtracting from such product
the Exercise Price on such Record Date (the "Exchange Ratio"), and the Company
shall so exchange the Rights.
(b) Immediately upon the action of the Board of Directors of the
Company authorizing and directing the exchange of the Rights pursuant to
subsection (a) of this Section 24, or at such time and date thereafter as it may
specify, and without any further action and without any notice, the right to
exercise Rights shall terminate and the only right thereafter of the holders of
Rights shall be to receive the securities described in Section 24(a) in
accordance with the Exchange Ratio. Within ten (10) Business Days after the
date of such action, the Company shall give notice of such exchange to the
holders of Rights by mailing such notice to all holders of Rights at their last
addresses as they appear upon the registry books of the Rights Agent or, if
prior to the Distribution Date, on the registry books of the transfer agent for
the Common Shares. Any notice that is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives such notice, but
neither the failure to give any such notice nor any defect therein shall affect
the legality or validity of such exchange. Each such notice of exchange shall
state the method by which the Rights will be exchanged.
(c) Notwithstanding the foregoing, in the event that the aggregate
number of Common Shares that are authorized by the Company's Certificate of
Incorporation, as amended from time to time, but not outstanding or reserved for
issuance for purposes other than upon exercise or exchange of the Rights is less
than the aggregate number of Common Shares issuable upon the exchange of the
Rights in accordance with this Section 24 (the excess of such number of
authorized Common Shares over and above such number of issuable Common Shares
being hereinafter referred to as the "Unavailable Exchange Shares"), then the
Company shall substitute for the pro rata portion of the Unavailable Exchange
Shares that would otherwise be issuable upon the exchange of the Rights in
accordance with this Section 24 (i) cash, (ii) other equity securities of the
Company (including, without limitation, Common Share Equivalents), (iii) debt
securities of the Company, (iv) other property or (v) any combination of the
foregoing, in each case having an aggregate Current Market Price equal to the
aggregate Current Market Price of the Unavailable Exchange Shares for which
substitution is made. Subject to Section 7(d) hereof, in the event that the
Company takes any action pursuant to this Section 24, such action shall apply
uniformly to all outstanding Rights.
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Section 25. Notice of Certain Events.
------------------------
(a) In the event that the Company shall propose (i) to declare or pay
any dividend on or make any distribution with respect to its Common Shares or
Preferred Shares (other than a regular quarterly cash dividend), (ii) to offer
to the holders of its Common Shares or Preferred Shares options, rights or
warrants to subscribe for or to purchase any additional shares thereof or shares
of stock of any class or any other securities, rights or options, (iii) to
effect any reclassification of its Common Shares or Preferred Shares (other than
a reclassification involving only the subdivision of outstanding shares), (iv)
to effect any consolidation or merger with or into, or to effect any sale or
other transfer (or to permit one or more of its Subsidiaries to effect any sale
or other transfer), in one or more transactions, of more than 50% of the assets
or earning power of the Company and its Subsidiaries (taken as a whole) to, any
other Person or Persons, or (v) to effect the liquidation, dissolution or
winding up of the Company, then and in each such case, the Company shall give to
each holder of a Right Certificate, in accordance with Section 26 hereof, a
notice of such proposed action that shall specify the record date for the
purpose of such dividend or distribution, or the date upon which such
reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution or winding up is to take place and the date of participation therein
by the holders of record of the Common Shares or Preferred Shares, 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 Common Shares or Preferred Shares for purposes of
such action, 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 the Common Shares or Preferred Shares, whichever date
shall be the earlier. The failure to give the notice required by this Section 25
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) Upon the occurrence of each Section 11(a)(ii) Event and each
Section 13(a) Event, the Company shall as soon as practicable thereafter give to
each holder of a Right Certificate, in accordance with Section 26 hereof, a
notice of the occurrence of such event, specifying the event and the
consequences of the event to holders of Rights under Sections 11 and 13 hereof.
Section 26. Notices. Notices or demands authorized by this Agreement to
-------
be given or made by the Rights Agent or by the holder of any Right Certificate
to or on the Company shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is filed in writing with
the Rights Agent) as follows:
Bank Plus Corporation
4565 Colorado Boulevard
Los Angeles, California 90039
Attention: Secretary
Subject to the provisions of Section 21 hereof, any notice or demand authorized
by this Agreement to be given or made to or on the Rights Agent (i) by the
Company shall be sufficiently given or made if sent, postage prepaid, by
registered or certified mail, addressed to the principal office of the Rights
Agent as set forth below (until another address is filed in
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writing with the Company) or (ii) by the holder of any Right Certificate shall
be sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to the principal office of the Rights Agent as set forth below (until
another address is filed in writing with the Company), and shall be deemed given
upon actual receipt. The Company hereby agrees that it shall encourage the
holders of the Right Certificates, in any and all writings to such holders
regarding the Rights or this Agreement, to give or make any notice or demand
authorized by this Agreement by registered or certified mail, addressed to the
principal office of the Rights Agent as follows (until another address is filed
in writing with the Company):
American Stock Transfer & Trust Company
40 Wall Street, 46th Floor
New York, New York 10005
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Right Certificate shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the registry
books of the Company.
Section 27. Supplements and Amendments.
--------------------------
(a) The Board of Directors of the Company may, from time to time,
without the approval of any holders of Rights, supplement or amend any provision
of this Agreement in any manner, whether or not such supplement or amendment is
adverse to any holder of Rights, and direct the Rights Agent so to supplement or
amend such provision, and the Rights Agent shall so supplement or amend such
provision; provided, however, that from and after the earliest of (i) the date
-------- -------
of the first Section 11(a)(ii) Event, (ii) the date of the first Section 13(a)
Event, (iii) the Redemption Date or (iv) the Expiration Date, this Agreement
shall not be supplemented or amended in any manner that would materially and
adversely affect any holder of outstanding Rights other than a 15% Stockholder
or a Surviving Person.
(b) From and after the earlier of the date of the first Section
11(a)(ii) Event or the date of the first Section 13(a) Event and prior to the
Rights Expiration Date, the Company shall not effect any amendment to the
Certificate of Designations for the Preferred Shares that would materially and
adversely affect the rights, privileges or preferences of the Preferred Shares
without the prior approval of the holders of two-thirds or more of the then
outstanding Rights. Notwithstanding anything in this Agreement to the contrary,
no supplement or amendment that changes the rights and duties of the Rights
Agent under this Agreement in any manner adverse to the Rights Agent will be
effective against the Rights Agent without the execution of such supplement or
amendment by the Rights Agent.
Section 28. Certain Covenants. Subject to Section 27 hereof and the
-----------------
other provisions of this Agreement, from and after the earlier of the date of
the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event
and prior to the earlier of the Redemption Date or the Rights Expiration Date,
the Company shall not (a) issue or sell, or permit any Subsidiary to issue or
sell, to a 15% Stockholder or a Surviving Person, or any Affiliate or Associate
of a 15% Stockholder or a Surviving Person, or any Person holding Voting Shares
of the Company
52
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that are Beneficially Owned by a 15% Stockholder or a Surviving Person, (i) any
rights, options, warrants or convertible securities on terms similar to, or that
materially adversely affect the value of, the Rights or (ii) Preferred Shares,
Common Shares or shares of any other class of capital stock, if such sale is
intended to or would materially adversely affect the value of the Rights, or (b)
take any other action that is intended to or would materially adversely affect
the value of the Rights.
Section 29. Successors. All the covenants and provisions of this
----------
Agreement by or for the benefit of the Company or the Rights Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Section 30. Benefits of this Agreement. Nothing in this Agreement shall
--------------------------
be construed to give to any Person other than the Company, the Rights Agent and
the registered holders of the Right Certificates (other than those representing
Rights that have become null and void) and the certificates for Common Shares
representing Rights (other than those Rights that have become null and void) any
legal or equitable right, remedy or claim under this Agreement, and this
Agreement shall be for the sole and exclusive benefit of the Company, the Rights
Agent and such registered holders of Right Certificates and certificates for
Common Shares representing Rights.
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.
Section 32. Governing Law. This Agreement and each Right Certificate
-------------
issued hereunder shall be deemed to be a contract made under the laws of the
State of Delaware and for all purposes shall be governed by and construed in
accordance with the laws of such state applicable to contracts made and
performed entirely within such state, except as to the rights and obligations of
the Rights Agent which shall be governed by and construed in accordance with the
laws of the State of New York.
Section 33. Counterparts. This Agreement may be executed in any number of
------------
counterparts and each such counterpart shall for all purposes be deemed to be an
original and all such counterparts shall together constitute but one and the
same instrument.
Section 34. Descriptive Headings. Descriptive headings of the several
--------------------
sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
53
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
BANK PLUS CORPORATION
Attest:
By: ______________________________ By: _______________________________
Name: Name:
Title: Title:
American Stock Transfer & Trust Company,
as Rights Agent
Attest:
By: ______________________________ By: ____________________________________
Name: Name:
Title: Title:
Exhibit A
54
<PAGE>
EXHIBIT A
---------
Form of Right Certificate
Certificate No. _______ ____________ Rights
NOT EXERCISABLE AFTER THE LATER OF FEBRUARY 3, 2009 OR THE TENTH
ANNIVERSARY OF THE DISTRIBUTION DATE (AS THAT TERM IS DEFINED IN THE RIGHTS
AGREEMENT) OR EARLIER IF REDEEMED. THE RIGHTS ARE SUBJECT TO REDEMPTION AT
$.001 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER
CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY A 15% STOCKHOLDER OR AN
AFFILIATE OR ASSOCIATE OF A 15% STOCKHOLDER (AS SUCH TERMS ARE DEFINED IN
THE RIGHTS AGREEMENT AND AS THOSE CIRCUMSTANCES ARE SPECIFIED IN THE RIGHTS
AGREEMENT) OR ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND
VOID. [THE RIGHTS REPRESENTED BY THIS RIGHT CERTIFICATE WERE ISSUED TO A
PERSON WHO WAS A 15% STOCKHOLDER OR AN AFFILIATE OR ASSOCIATE OF A 15%
STOCKHOLDER. THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY
BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN THE RIGHTS AGREEMENT.]/*/
Right Certificate
BANK PLUS CORPORATION
This certifies that _______________________, or registered assigns, is
the registered owner of the number of Rights set forth above, each of which
entitles the owner thereof, subject to the terms, provisions and conditions of
the Rights Agreement dated as of ___________, 1999 (the "Rights Agreement")
between Bank Plus Corporation, a Delaware corporation (the "Company"), and
American Stock Transfer & Trust Company, a New York banking 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 5:00 P.M.,
California time, on the later of February 3, 2009 or the tenth anniversary of
the Distribution Date
- --------------------
/*/ That portion of the legend in brackets shall be inserted only if applicable
and shall replace the preceding sentence.
55
<PAGE>
at the office or agency of the Rights Agent at American Stock Transfer & Trust
Company, 40 Wall Street, 46th Floor, New York, New York 10005, or at the office
of its successors as Rights Agent, one one-hundredth of a fully paid non-
assessable share of Series C Junior Participating Cumulative Preferred Stock,
$.01 par value (the "Preferred Shares"), of the Company, at an exercise price of
$25.00 per Right (the "Exercise Price"), upon presentation and surrender of this
Right Certificate with the Form of Election to Purchase duly executed. The
number of Rights evidenced by this Right Certificate (and the number of
Preferred Shares that may be purchased upon exercise thereof) set forth above,
and the Exercise Price per share set forth above, are the number and Exercise
Price as of February 3, 1999, based on the Preferred Shares as constituted at
such date.
As provided in the Rights Agreement, the Exercise Price and the number
of Preferred Shares that may be purchased upon the exercise of the Rights
evidenced by this Right Certificate are subject to modification and adjustment
upon the happening of certain events. This Right Certificate is subject to all
of the terms, provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by reference and made a
part hereof and to which Rights Agreement reference is hereby made for a full
description of the rights, limitations of rights, obligations, duties and
immunities hereunder of the Rights Agent, the Company and the holders of the
Rights Certificates. Copies of the Rights Agreement are on file at the principal
executive offices of Bank Plus Corporation and the above-mentioned offices of
the Rights Agent.
This Right Certificate, with or without other Right Certificates, upon
surrender at the office or agency of the Rights Agent at American Stock Transfer
& Trust Company, 40 Wall Street, 46th Floor, New York, New York 10005, may be
exchanged for another Right Certificate or Right Certificates of like tenor and
date evidencing Rights entitling the holder to purchase a like aggregate number
of Preferred Shares as the Rights evidenced by the Right Certificate or Right
Certificates surrendered shall have entitled such holder to purchase. If this
Right Certificate shall be exercised in part, the holder shall be entitled to
receive upon surrender hereof another Right Certificate or Right Certificates
for the number of whole Rights not exercised. Subject to the provisions of the
Rights Agreement, the Rights evidenced by this Certificate may, but are not
required to, be redeemed by the Company at a redemption price of $.001 per
Right.
No fractional Preferred Shares will be issued upon the exercise of any
Right or Rights evidenced hereby (other than fractions that are integral
multiples of one one-hundredth of a Preferred Share, which may, at the election
of the Company, be evidenced by depositary receipts), but in lieu thereof, a
cash payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of the Preferred
Shares or of any other securities of the Company that 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
56
<PAGE>
otherwise, until the Right or Rights evidenced by this Right Certificate shall
have been exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company and
its corporate seal. Dated as of _______________.
ATTEST: BANK PLUS CORPORATION
___________________ ______________________________
Secretary President
Countersigned:
American Stock Transfer & Trust Company
By: ________________________
Title: ______________________
57
<PAGE>
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
------------------
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED _______________________________________ hereby sells,
assigns and transfers unto ___________________________________________________
(Please print name and address of transferee)
______________________________________________________________________________
___________ this Right Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint ____________________
Attorney, to transfer the within Right Certificate on the books of the within-
named Company, with full power of substitution.
Dated: ____________________, ____
_____________________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of Securities
Dealers, Inc. or a commercial bank or trust company having an office or
correspondent in the United States.
- --------------------------------------------------------------------------------
The undersigned hereby certifies that the Rights evidenced by this Right
Certificate are not Beneficially Owned by a 15% Stockholder or an Affiliate or
Associate thereof (as defined in the Rights Agreement).
________________________________
Signature
(Signature must conform in all respects
to name of holder as specified on the
face of this Right Certificate in every
particular, without alteration or
enlargement or any change whatsoever)
- --------------------------------------------------------------------------------
58
<PAGE>
Form of Reverse Side of Right Certificate -- continued
FORM OF ELECTION TO PURCHASE
----------------------------
(To be executed if holder desires to
exercise the Right Certificate.)
TO BANK PLUS CORPORATION
The undersigned hereby irrevocably elects to exercise ________________
Rights represented by this Right Certificate to purchase the Preferred Shares or
other securities issuable upon the exercise of such Rights and requests that
certificates for such Preferred Shares or other securities be issued in the
following name:
(please print name, address and social security,
tax identification or other identifying number:
____________________________________________
____________________________________________
____________________________________________
____________________________________________
If such number of Rights shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance remaining of such Rights
shall be registered in the name of and delivered to:
(please print name, address and social security,
tax identification or other identifying number:
____________________________________________
____________________________________________
____________________________________________
____________________________________________
Dated: __________________
______________________________
Signature
59
<PAGE>
(Signature must conform in all respects
to name of holder as specified on the
face of this Right Certificate in every
particular, without alteration or
enlargement or any change whatsoever)
Form of Reverse Side of Right Certificate -- continued
Signature Guarantee:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of Securities
Dealers, Inc. or a commercial bank or trust company having an office or
correspondent in the United States.
- --------------------------------------------------------------------------------
The undersigned hereby certifies that the Rights evidenced by this Right
Certificate are not Beneficially Owned by a 15% Stockholder or an Affiliate or
Associate thereof (as defined in the Rights Agreement).
________________________________
Signature
(Signature must conform in all respects
to name of holder as specified on the
face of this Right Certificate in every
particular, without alteration or
enlargement or any change whatsoever)
- --------------------------------------------------------------------------------
NOTICE
------
The signatures in the foregoing Forms of Assignment and Election must
correspond to the name as written upon the face of this Right Certificate in
every particular, without alteration or enlargement or any change whatsoever.
In the event the certification set forth above in the Forms of
Assignment and Election is not completed, the Company will deem the Beneficial
Owner of the Rights evidenced by this Right Certificate to be a 15% Stockholder
or an Affiliate or Associate thereof (as defined in the Rights Agreement) and,
in the case of an Assignment, will affix a legend to that effect on any Right
Certificates issued in exchange for this Right Certificate.
60
<PAGE>
EXHIBIT 5
Amended and Restated By-Laws
----------------------------
61
<PAGE>
BY-LAWS
OF
BANK PLUS CORPORATION
ARTICLE I
STOCKHOLDERS
------------
Section 1.1. Annual Meetings. An annual meeting of stockholders
---------------
shall be held for the election of directors at such date, time and place either
within or without the State of Delaware as may be designated by the Board of
Directors from time to time. Any other proper business may be transacted at
the annual meeting.
Section 1.2. Special Meetings. Special meetings of stockholders
----------------
may be called at any time by the Chairman of the Board, if any, the Vice
Chairman of the Board, if any, the President or the Board of Directors, to be
held at such date, time and place either within or without the State of Delaware
as may be stated in the notice of the meeting.
Section 1.3. Notice of Meetings. Whenever stockholders are
------------------
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which shall state the place, date and hour of the
meeting, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called. Unless otherwise provided by law, the written
notice of any meeting shall be given not less than ten nor more than sixty days
before the date of the meeting to each stockholder entitled to vote at such
meeting. If mailed, such notice shall be deemed to be given when deposited in
the United States mail, postage prepaid, directed to the stockholder at such
stockholder's address as it appears on the records of the Corporation.
Section 1.4. Adjournments. Any meeting of stockholders, annual or
------------
special, may be adjourned from time to time, to reconvene at the same or some
other place, and notice need not be given of any such adjourned meeting if the
time and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the Corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than thirty days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given as
in the case of an original meeting to each stockholder of record entitled to
vote at the meeting.
Section 1.5. Quorum. At each meeting of stockholders, except where
------
otherwise provided by law or the certificate of incorporation or these by-laws,
the holders of a majority of the outstanding shares of stock entitled to vote on
a matter at the meeting, present in person or represented by proxy, shall
constitute a quorum. For purposes of the foregoing, where a separate vote by
class or classes is required for any matter, the holders of a majority of the
outstanding
62
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shares of such class or classes, present in person or represented by proxy,
shall constitute a quorum to take action with respect to that vote on that
matter. Two or more classes or series of stock shall be considered a single
class if the holders thereof are entitled to vote together as a single class at
the meeting. In the absence of a quorum of the holders of any class or classes
of stock entitled to vote on a matter, the holders of such class or classes so
present or represented may, by majority vote, adjourn the meeting of such class
or classes from time to time in the manner provided by Section 1.4 of these by-
laws until a quorum of such class or classes shall be so present or represented.
Shares of its own capital stock belonging on the record date for the meeting to
the Corporation or to another corporation, if a majority of the shares entitled
to vote in the election of directors of such other corporation is held, directly
or indirectly, by the Corporation, shall neither be entitled to vote nor be
counted for quorum purposes; provided, however, that the foregoing shall not
limit the right of the Corporation to vote stock, including but not limited to
its own stock, held by it in a fiduciary capacity.
Section 1.6. Organization. Meetings of stockholders shall be
------------
presided over by the Chairman of the Board; if any, or in the absence of the
Chairman of the Board by the Vice Chairman of the Board, if any, or in the
absence of the Vice Chairman of the Board by the President, or in the absence of
the President by a Vice President, or in the absence of the foregoing persons by
a chairman designated by the Board of Directors, or in the absence of such
designation by a chairman chosen at the meeting. The Secretary, or in the
absence of the Secretary an Assistant Secretary, shall act as secretary of the
meeting, but in the absence of the Secretary and any Assistant Secretary the
chairman of the meeting may appoint any person to act as secretary of the
meeting.
The order of business at each such meeting shall be as determined by
the chairman of the meeting. The chairman of the meeting shall have the right
and authority to prescribe such rules, regulations and procedures and to do all
such acts and things as are necessary or desirable for the proper conduct of the
meeting, including, without limitation, the establishment of procedures for the
maintenance of order and safety, limitations on the time allotted to questions
or comments on the affairs of the Corporation, restrictions on entry to such
meeting after the time prescribed for the commencement thereof and the opening
and closing of the voting polls.
Section 1.7. Inspectors. Prior to any meeting of stockholders, the
----------
Board of Directors or the President shall appoint one or more inspectors to act
at such meeting and make a written report thereof and may designate one or more
persons as alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at the meeting of stockholders, the person
presiding at the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before entering upon the discharge of his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspectors shall ascertain the number of shares outstanding and the
voting power of each, determine the shares represented at the meeting and the
validity of proxies and ballots, count all votes and ballots, determine and
retain for a reasonable period a record of the disposition of any challenges
made to any determination by the inspectors and certify their determination of
the number of shares represented at the meeting and their count of
63
<PAGE>
all votes and ballots. The inspectors may appoint or retain other persons to
assist them in the performance of their duties. The data and time of the
opening and closing of the polls for each matter upon which the stockholders
will vote at a meeting shall be announced at the meeting. No ballot, proxy or
vote, nor any revocation thereof or change thereto, shall be accepted by the
inspectors after the closing of the polls.
Section 1.8. Voting; Proxies. Unless otherwise provided in the
---------------
certificate of incorporation, each stockholder entitled to vote at any meeting
of stockholders shall be entitled to one vote for each share of stock held by
such stockholder which has voting power upon the matter in question. Each
stockholder entitled to vote at a meeting of stockholders or to express consent
or dissent to corporate action in writing without a meeting may authorize
another person or persons to act for such stockholder by proxy, but no such
proxy shall be voted or acted upon after three years from the date of its
execution unless the proxy provides for a longer period. A duly executed proxy
shall be irrevocable if it states that it is irrevocable and if, and only as
long as, it is coupled with an interest sufficient in law to support an
irrevocable power, regardless of whether the interest with which it is coupled
is an interest in the stock itself or an interest in the Corporation generally.
A stockholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing an instrument in writing revoking the
proxy or another duly executed proxy bearing a later date with the Secretary of
the Corporation. Voting at meetings of stockholders need not be by written
ballot unless the holders of a majority of the outstanding shares of all classes
of stock entitled to vote thereon present in person or represented by proxy at
such meeting shall so determine. Directors shall be elected by a majority of the
votes of the shares present in person or represented by proxy at the meeting and
entitled to vote on the election of directors. In all other matters, unless
otherwise provided by law or by the certificate of incorporation or these by-
laws, the affirmative vote of the holders of a majority of the shares present in
person or represented by proxy at the meeting and entitled to vote on the
subject matter shall be the act of the stockholders. Where a separate vote by
class or classes is required, the affirmative vote of the holders of a majority
of the shares of such class or classes present in person or represented by proxy
at the meeting shall be the act of such class or classes, except as otherwise
provided by law or by the certificate of incorporation or these by-laws.
Section 1.9. Fixing Date for Determination of Stockholders of
------------------------------------------------
Record. In order that the Corporation may determine the stockholders entitled
- ------
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors, and which record date shall not be more than sixty
nor less than ten days before the date of such meeting. If no record date is
fixed by the Board of Directors, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the day next preceding the
day on which the meeting is held. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
64
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In order that the Corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than ten days after the date upon
which the resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of Directors, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the Board of Directors is
required by law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Corporation by delivery to its registered office in the State of Delaware, its
principal place of business, or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. If no record date
has been fixed by the Board of Directors and prior action by the Board of
Directors is required by law, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting shall be at
the close of business on the day on which the board of Directors adopts the
resolution taking such prior action.
In order that the Corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment of any
rights or the stockholders entitled to exercise any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other lawful
action, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty days prior to such
action. If no record date is fixed, the record date for determining stockholders
for any such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
Section 1.10. List of Stockholders Entitled to Vote. The Secretary
-------------------------------------
shall prepare and make, at least ten days before every meeting of stockholders,
a complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof and may be inspected by any stockholder who is present.
Section 1.11. Advance Notice of Stockholder Proposals. Nominations
---------------------------------------
of persons for election to the Board and the proposal of business to be
transacted by the stockholders may be made at an annual meeting of stockholders
(a) pursuant to the Corporation's notice with respect to such meeting, (b) by or
at the direction of the Board or (c) by any stockholder of record of the
Corporation who was a stockholder of record at the time of the
65
<PAGE>
giving of the notice provided for in the following paragraph, who is entitled to
vote at the meeting and who has complied with the notice procedures set forth in
this section.
For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (c) of the foregoing
paragraph, (1) the stockholder must have given timely notice thereof in writing
to the Secretary of the Corporation, (2) such business must be a proper matter
for stockholder action under the Delaware General Corporation Law, (3) if the
stockholder, or the beneficial owner on whose behalf any such proposal or
nomination is made, has provided the Corporation with a Solicitation Notice, as
that term is defined in subclause (c)(iii) of this paragraph, such stockholder
or beneficial owner must, in the case of a proposal, have delivered a proxy
statement and form of proxy to holders of at least the percentage of the
Corporation's voting shares required under applicable law to carry any such
proposal, or, in the case of a nomination or nominations, have delivered a proxy
statement and form of proxy to holders of a percentage of the Corporation's
voting shares reasonably believed by such stockholder or beneficial holder to be
sufficient to elect the nominee or nominees proposed to be nominated by such
stockholder, and must, in either case, have included in such materials the
Solicitation Notice and (4) if no Solicitation Notice relating thereto has been
timely provided pursuant to this section, the stockholder or beneficial owner
proposing such business or nomination must not have solicited a number of
proxies sufficient to have required the delivery of such a Solicitation Notice
under this section. To be timely, a stockholder's notice shall be delivered to
the Secretary at the principal executive offices of the Corporation (A) for the
1999 annual meeting, not later than February 28, 1999, and (B) for all
subsequent annual meetings, not less than 45 or more than 75 days prior to the
first anniversary (the "Anniversary") of the date on which the Corporation first
mailed its proxy materials for the preceding year's annual meeting of
stockholders; provided, however, that if the date of the annual meeting is
advanced more than 30 days prior to or delayed by more than 30 days after the
anniversary of the preceding year's annual meeting, notice by the stockholder to
be timely must be so delivered not later than the close of business on the later
of (i) the 90th day prior to such annual meeting or (ii) the 10th day following
the day on which public announcement of the date of such meeting is first made.
Such stockholder's notice shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or reelection as a director all
information relating to such person as would be required to be disclosed in
solicitations of proxies for the election of such nominees as directors pursuant
to Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and such person's written consent to serve as a director if
elected; (b) as to any other business that the stockholder proposes to bring
before the meeting, a brief description of such business, the reasons for
conducting such business at the meeting and any material interest in such
business of such stockholder and the beneficial owner, if any, on whose behalf
the proposal is made; (c) as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf nomination or proposal is made (i) the
name and address of such stockholder, as they appear on the Corporation's books,
and of such beneficial owner, (ii) the class and number of shares of the
Corporation that are owned beneficially and of record by such stockholder and
such beneficial owner, and (iii) whether either such stockholder or beneficial
owner intends to deliver a proxy statement and form of proxy to holders of, in
the case of a proposal, at least the percentage of the Corporation's voting
shares required under applicable law to carry the proposal
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or, in the case of a nomination or nominations, a sufficient number of holders
of the Corporation's voting shares to elect such nominee or nominees (an
affirmative statement of such intent, a "Solicitation Notice").
Notwithstanding anything in the second sentence of the second
paragraph of this Section 1.11 to the contrary, in the event that the number of
directors to be elected to the Board is increased and there is no public
announcement naming all of the nominees for director or specifying the size of
the increased Board made by the Corporation at least 55 days prior to the
Anniversary, a stockholder's notice required by this Bylaw shall also be
considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the 10th day following the day on which such public announcement is
first made by the Corporation.
Only persons nominated in accordance with the procedures set forth in
this Section 1.11 shall be eligible to serve as directors and only such business
shall be conducted at an annual meeting of stockholders as shall have been
brought before the meeting in accordance with the procedures set forth in this
section. The chair of the meeting shall have the power and the duty to determine
whether a nomination or any business proposed to procedures set forth in these
by-laws and, if any proposed nomination or business is not in compliance with
these by-laws, to declare that such defective proposed business or nomination
shall not be presented for stockholder action at the meeting and shall be
disregarded.
Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting. Nominations of persons for election to the
Board may be made at a special meeting of stockholders at which directors are to
be elected pursuant to the Corporation's notice of meeting (a) by or at the
direction of the Board or (b) by any stockholder of record of the Corporation
who is a stockholder of record at the time of giving of notice provided for in
this paragraph, who shall be entitled to vote at the meeting and who complies
with the notice procedures set forth in this Section 1.11. Nominations by
stockholders of persons for election to the Board may be made at such a special
meeting of stockholders if the stockholder's notice required by the second
paragraph of this Section 1.11 shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the later of the 90th day prior to such special meeting or the 10th
day following the day on which public announcement is first made of the date of
the special meeting and of the nominees proposed by the Board to be elected at
such meeting.
For purposes of this section, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or a comparable national news service or in a document publicly filed by
the Corporation with the Securities and Exchange Commission pursuant to Section
13, 14 or 15(d) of the Exchange Act.
Notwithstanding the foregoing provisions of this Section 1.11, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations
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thereunder with respect to matters set forth in this Section 1.11. Nothing in
this Section 1.11 shall be deemed to affect any rights of stockholders to
request inclusion of proposals in the Corporation's proxy statement pursuant to
Rule 14a-8 under the Exchange Act.
ARTICLE II
BOARD OF DIRECTORS
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Section 2.1. Powers; Number; Qualifications. The business and
------------------------------
affairs of the Corporation shall be managed by or under the direction of the
Board of Directors, except as may be otherwise provided by law or in the
certificate of incorporation. The Board of Directors shall consist of one or
more members, the number thereof to be determined from time to time by the
Board. Directors need not be stockholders.
Section 2.2. Election; Term of Office; Resignation; Removal;
-----------------------------------------------
Vacancies. Each director shall hold office until the next election of the
- ---------
class for which such director shall have been chosen, and until his or her
successor is elected and qualified or until his or her earlier resignation or
removal. Any director may resign at any time upon written notice to the Board of
Directors or to the President or the Secretary of the Corporation. Such
resignation shall take effect at the time specified therein, and unless
otherwise specified therein no acceptance of such resignation shall be necessary
to make it effective. Any director or the entire Board of Directors may be
removed, for cause, by the holders of a majority of the shares then entitled to
vote at an election of directors. Unless otherwise provided in the certificate
of incorporation or these by-laws, vacancies and newly created directorships
resulting from any increase in the authorized number of directors elected by all
of the stockholders having the right to vote as a single class or from any other
cause may be filled by a majority of the directors then in office, although less
than a quorum, or by the sole remaining director.
Section 2.3. Regular Meetings. Regular meetings of the Board of
----------------
Directors may be held at such places within or without the State of Delaware and
at such times as the Board may from time to time determine, and if so determined
additional notice thereof need not be given.
Section 2.4. Special Meetings. Special meetings of the Board of
----------------
Directors may be held at any time or place within or without the State of
Delaware whenever called by the Chairman of the Board, if any, by the Vice
Chairman of the Board, if any, by the President or by a majority of the
directors. Reasonable notice thereof shall be given by the person or persons
calling the meeting.
Section 2.5. Participation in Meetings by Conference Telephone
-------------------------------------------------
Permitted. Unless otherwise restricted by the certificate of incorporation or
- ---------
these by-laws, members of the Board of Directors, or any committee designated by
the Board, may participate in a meeting of the Board or of such committee, as
the case may be, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
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each other, and participation in a meeting pursuant to this by-law shall
constitute presence in person at such meeting.
Section 2.6. Quorum; Vote Required for Action. At all meetings of
--------------------------------
the Board of Directors a majority of the entire Board shall constitute a quorum
for the transaction of business. The vote of a majority of the directors present
at a meeting at which a quorum is present shall be the act of the Board unless
the certificate of incorporation or these by-laws shall require a vote of a
greater number. In case at any meeting of the Board a quorum shall not be
present, the members of the Board present may adjourn the meeting from time to
time until a quorum shall be present.
Section 2.7. Organization. Meetings of the Board of Directors
------------
shall be presided over by the Chairman of the Board, if any, or in the absence
of the Chairman of the Board by the Vice Chairman of the Board, if any, or in
the absence of the Vice Chairman of the Board by the President, or in their
absence by a chairman chosen at the meeting. The Secretary, or in the absence of
the Secretary an Assistant Secretary, shall act as secretary of the meeting, but
in the absence of the Secretary and any Assistant Secretary the chairman of the
meeting may appoint any person to act as secretary of the meeting.
Section 2.8. Action by Directors Without a Meeting. Unless
-------------------------------------
otherwise restricted by the certificate of incorporation or these by-laws, any
action required or permitted to be taken at any meeting of the Board of
Directors, or of any committee thereof, may be taken without a meeting if all
members of the Board or of such committee, as the case may be, consent thereto
in writing, and the writing or writings are filed with the minutes of
proceedings of the Board or committee,
Section 2.9. Compensation of Directors. Unless otherwise
-------------------------
restricted by the certificate of incorporation or these by-laws, the Board of
Directors shall have the authority to fix the compensation of directors.
ARTICLE III
COMMITTEES
----------
Section 3.1. Committees. The Board of Directors may designate one
----------
or more committees, each committee to consist of one or more of the directors of
the Corporation. The Board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of the committee. In the absence or disqualification of a member of
a committee, the member or members present at any meeting and not disqualified
from voting, whether or not such member or members constitute a quorum, may
unanimously appoint another member of the Board to act at the meeting in the
place of any such absent or disqualified member. Any such committee, to the
extent provided in the resolution of the Board of Directors or in these by-laws,
shall have and may exercise all of the powers and authority of the Board of
Directors in the management of the business and affairs of the
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Corporation and may authorize the seal of the Corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to the following matter: (a) approving or adopting or
recommending to the stockholders, any action or matter expressly required by the
Delaware General Corporation Law to be submitted to stockholders for approval or
(b) adopting, amending or repealing any bylaw of the Corporation.
Section 3.2. Committee Rules. Unless the Board of Directors
---------------
otherwise provides, each committee designated by the Board may adopt, amend and
repeal rules for the conduct of its business. In the absence of a provision by
the Board or a provision in the rules of such committee to the contrary, a
majority of the entire authorized number of members of such committee shall
constitute a quorum for the transaction of business, the vote of a majority of
the members present at a meeting at the time of such vote if a quorum is then
present shall be the act of such committee, and in other respects each committee
shall conduct its business in the same manner as the Board conducts its business
pursuant to Article II of these by-laws.
ARTICLE IV
OFFICERS
--------
Section 4.1. Officers; Election. As soon as practicable after the
------------------
annual meeting of stockholders in each year, the Board of Directors shall elect
a President and a Secretary, and it may, if it so determines, elect from among
its members a Chairman of the Board and a Vice Chairman of the Board. The Board
may also elect one or more Vice Presidents, one or more Assistant Vice
Presidents, one or more Assistant Secretaries, a Treasurer and one or more
Assistant Treasurers and such other officers as the Board may deem desirable or
appropriate and may give any of them such further designations or alternate
titles as it considers desirable. Any number of offices may be held by the same
person unless the certificate of incorporation or these by-laws otherwise
provide.
Section 4.2. Term of Office; Resignation; Removal; Vacancies.
-----------------------------------------------
Unless otherwise provided in the resolution of the Board of Directors electing
any officer, each officer shall hold office until his or her successor is
elected and qualified or until his or her earlier resignation or removal. Any
officer may resign at any time upon written notice to the Board or to the
President or the Secretary of the Corporation. Such resignation shall take
effect at the time specified therein, and unless otherwise specified therein no
acceptance of such resignation shall be necessary to make it effective. The
Board may remove any officer with or without cause at any time. Any such removal
shall be without prejudice to the contractual rights of such officer, if any,
with the Corporation, but the election of an officer shall not of itself create
contractual rights. Any vacancy occurring in any office of the Corporation by
death, resignation, removal or otherwise may be filled by the Board at any
regular or special meeting.
Section 4.3. Powers and Duties. The officers of the Corporation
-----------------
shall have such powers and duties in the management of the Corporation as shall
be stated in these by-laws or in a resolution of the Board of Directors which is
not inconsistent with these by-laws and, to
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the extent not so stated, as generally pertain to their respective offices,
subject to the control of the Board The Secretary shall have the duty to record
the proceedings of the meetings of the stockholders, the Board of Directors and
any committees In a book to be kept for that purpose. The Board may require any
officer, agent or employee to give security for the faithful performance of his
or her duties.
ARTICLE V
STOCK
-----
Section 5.1. Certificates. Every holder of stock in the
------------
Corporation shall be entitled to have a certificate signed by or in the name of
the Corporation by the Chairman or Vice Chairman of the Board of Directors, if
any, or the President or a Vice President, and by the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary, of the Corporation,
representing the number of shares of stock in the Corporation owned by such
holder. If such certificate is manually signed by one officer or manually
countersigned by a transfer agent or by a registrar, any other signature on the
certificate may be a facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if such person were such officer, transfer agent or registrar at the date of
issue.
If the Corporation is authorized to issue more than one class of stock
or more than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualifications or restrictions of such preferences
and/or rights shall be set forth in full or summarized on the face or back of
the certificate which the Corporation shall issue to represent such class or
series of stock, provided that, except as otherwise provided by law, in lieu of
the foregoing requirements, there may be set forth on the face or back of the
certificate which the Corporation shall issue to represent such class or series
of stock a statement that the Corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
Except as otherwise expressly provided by law, the rights and
obligations of the holders of uncertificated shares and the rights and
obligations of the holders of certificates representing stock of the same class
and series shall be identical.
Section 5.2. Lost, Stolen or Destroyed Stock Certificates;
---------------------------------------------
Issuance of New Certificates. The Corporation may issue a new certificate of
- -----------------------------
stock [or uncertificated shares] in the place of any certificate theretofore
issued by it, alleged to have been lost, stolen or destroyed, and the
Corporation may require the owner of the lost, stolen or destroyed certificate,
or such owner's legal representative, to give the Corporation a bond sufficient
to indemnify it against any
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claim that may be made against it on account of the alleged loss, theft or
destruction of any such certificate or the issuance of such new certificate.
ARTICLE VI
MISCELLANEOUS
-------------
Section 6.1. Fiscal Year. The fiscal year of the Corporation shall
-----------
be determined by the Board of Directors.
Section 6.2. Seal. The Corporation may have a corporate seal which
----
shall have the name of the Corporation inscribed thereon and shall be in such
form as may be approved from time to time by the Board of Directors. The
corporate seal may be used by causing it or a facsimile thereof to be impressed
or affixed or in any other manner reproduced.
Section 6.3. Waiver of Notice of Meetings of Stockholders,
---------------------------------------------
Directors and Committees. Whenever notice is required to be given by law or
- ------------------------
under any provision of the certificate of incorporation or these by-laws, a
written waiver thereof, signed by the person entitled to notice, whether before
or after the time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting shall constitute a waiver of notice of such
meeting, except when the person attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
stockholders, directors or members of a committee of directors need be specified
in any written waiver of notice unless so required by the certificate of
incorporation or these by-laws.
Section 6.4. Indemnification of Directors, Officers and Employees.
----------------------------------------------------
The Corporation shall indemnify to the full extent permitted by law any person
made or threatened to be made a party to any action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that
such person or such person's testator or intestate is or was a director, officer
or employee of the Corporation or serves or served at the request of the
Corporation any other enterprise as a director, officer or employee. Expenses,
including attorneys' fees, incurred by any such person in defending any such
action, suit or proceeding shall be paid or reimbursed by the Corporation
promptly upon receipt by it of an undertaking of such person to repay such
expenses if it shall ultimately be determined that such person is not entitled
to be indemnified by the Corporation. The rights provided to any person by this
by-law shall be enforceable against the Corporation by such person who shall be
presumed to have relied upon it in serving or continuing to serve as a director,
officer or employee as provided above. No amendment of this by-law shall impair
the rights of any person arising at any time with respect to events occurring
prior to such amendment. For purposes of this by-law, the term "Corporation"
shall include any predecessor of the Corporation and any constituent corporation
(including any constituent of a constituent) absorbed by the Corporation in a
consolidation or merger; the term "other enterprise" shall include any
corporation, partnership, joint venture, trust or employee
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benefit plan; service "at the request of the Corporation" shall include service
as a director, officer or employee of the Corporation which imposes duties on,
or involves services by, such director, officer or employee with respect to an
employee benefit plan, its participants or beneficiaries; any excise taxes
assessed on a person with respect to an employee benefit plan shall be deemed to
be indemnifiable expenses; and action by a person with respect to an employee
benefit plan which such person reasonably believes to be in the interest of the
participants and beneficiaries of such plan shall be deemed to be action not
opposed to the best interests of the Corporation.
Section 6.5. Interested Directors; Quorum. No contract or
----------------------------
transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership,
association or other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because the director or officer is
present at or participates in the meeting of the Board of Directors or committee
thereof which authorizes the contract or transaction, or solely because his or
her or their votes are counted for such purpose, if: (1) the material facts as
to his or her relationship or interest and as to the contract or transaction are
disclosed or are known to the Board or the committee, and the Board or committee
in good faith authorizes the contract or transaction by the affirmative votes of
a majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or (2) the material facts as to his or her
relationship or interest and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the stockholders;
or (3) the contract or transaction is fair as to the Corporation as of the time
it is authorized, approved or ratified, by the Board, a committee thereof or the
stockholders. Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
Section 6.6. Form of Records. Any records maintained by the
---------------
Corporation in the regular course of its business, including its stock ledger,
books of account and minute books, may be kept on, or be in the form of, punch
cards, magnetic tape, photographs, microphotographs or any other information
storage device, provided that the records so kept can be converted into clearly
legible form within a reasonable time. The Corporation shall so convert any
records so kept upon the request of any person entitled to inspect the same.
Section 6.7. Amendment of By-Laws. These by-laws may be amended or
--------------------
repealed, and new by-laws adopted, by the Board of Directors, but the
stockholders entitled to vote may adopt additional by-laws and may amend or
repeal any by-law whether or not adopted by them.
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