SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report: September 28, 1999
USX Corporation
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(Exact name of registrant as specified in its charter)
Delaware 1-5153 25-0996816
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(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
600 Grant Street
Pittsburgh, Pennsylvania 15219-4776
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number including area code: (412) 433-1121
Not Applicable
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(Former name or former address, if changed since last report)
Item 5. Other Events.
On September 28, 1999, the Board of Directors of USX
Corporation (the "Company") approved the extension of the benefits afforded
by the Company's existing rights plan by adopting a new stockholder rights
plan. The new plan, like the existing plan, is intended to deter coercive
or partial offers which will not provide fair value to all stockholders and
enhance the Board's ability to represent all stockholders and thereby
maximize stockholder values.
Pursuant to the new Rights Agreement between the Company and
ChaseMellon Shareholder Services, L.L.C., as Rights Agent, (i) one USX-U.S.
Steel Group Right (a "Steel Right") will be issued for each outstanding
share of USX-U.S. Steel Group Common Stock ("Steel Stock") and (ii) one
USX-Marathon Group Right (a "Marathon Right" and, together with the Steel
Rights, the "Rights") will be issued for each share of USX-Marathon Group
Common Stock ("Marathon Stock" and, together with the Steel Stock, the
"Voting Stock") to stockholders of record at the close of business on
October 9, 1999, the day the existing rights will expire. Each of the new
Rights will entitle the registered holder to purchase from the Company one
one-hundredth of a share of Series A Junior Preferred Stock, without par
value, of the Company, at a price of $110 per one one-hundredth of a share,
subject to adjustment. The Rights generally will not become exercisable
unless and until, among other things, any person acquires 15% or more of
the voting power of the outstanding Voting Stock. Like the existing plan,
the new rights plan contains a "qualifying offer" feature that exempts
fully financed all-cash tender offers for all outstanding Voting Stock that
satisfy certain defined conditions. The new Rights are redeemable under
certain circumstances at $.01 per Right and will expire, unless earlier
redeemed or extended, on October 9, 2009.
The description and terms of the new Rights are set forth in
the 1999 Rights Agreement, a copy of which is filed herewith and is
incorporated herein by reference.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
Exhibit No. Exhibit
- ----------- -------
4 Rights Agreement, dated as of September 28, 1999, between USX
Corporation and ChaseMellon Shareholder Services, L.L.C., as
Rights Agent, which includes as Exhibit A thereto, a Summary
of Rights to Purchase Preferred Stock and as Exhibit B
thereto, the Form of Rights Certificate.
SIGNATURES
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.
USX CORPORATION
By: /s/ Kenneth L. Matheny
____________________________
Name: Kenneth L. Matheny
Title:Vice President & Comptroller
Date: September 28, 1999
INDEX TO EXHIBITS
Exhibit No. Exhibit Page
----------- ------- ----
4 Rights Agreement, dated as of September 28, 1999,
between USX Corporation and ChaseMellon Shareholder
Services, L.L.C., as Rights Agent, which includes
as Exhibit A thereto, a Summary of Rights to
Purchase Preferred Stock and as Exhibit B thereto,
the Form of Rights Certificate.
USX CORPORATION
and
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
Rights Agent
Rights Agreement,
Dated as of September 28, 1999
TABLE OF CONTENTS
Section 1. Certain Definitions ................................. 2
Section 2. Appointment of Rights Agent ......................... 9
Section 3. Issue of Rights Certificates ........................ 9
Section 4. Form of Rights Certificates ........................ 11
Section 5. Countersignature and Registration .................. 12
Section 6. Transfer, Split Up, Combination and Exchange
of Rights Certificates; Mutilated, Destroyed,
Lost or Stolen Rights Certificates ................. 13
Section 7. Exercise of Rights; Purchase Price; Expiration
Date of Rights ..................................... 14
Section 8. Cancellation and Destruction of Rights
Certificates ....................................... 16
Section 9. Reservation and Availability of Capital Stock ...... 17
Section 10. Preferred Stock Record Date ........................ 19
Section 11. Adjustment of Purchase Price, Number and
Kind of Shares or Number of Rights ................. 19
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares ................................... 31
Section 13. Consolidation, Merger or Sale or Transfer
of Assets or Earning Power ......................... 32
Section 14. Fractional Rights and Fractional Shares ............ 35
Section 15. Rights of Action ................................... 36
Section 16. Agreement of Rights Holders ........................ 37
Section 17. Rights Certificate Holder Not Deemed a
Stockholder ........................................ 38
Section 18. Concerning the Rights Agent ........................ 38
Section 19. Merger or Consolidation or Change of Name of Rights
Agent .............................................. 40
Section 20. Duties of Rights Agent ............................. 39
Section 21. Change of Rights Agent ............................. 42
Section 22. Issuance of New Rights Certificates ................ 43
Section 23. Redemption and Termination ......................... 44
Section 24. Notice of Certain Events ........................... 45
Section 25. Notices ............................................ 46
Section 26. Supplements and Amendments ......................... 47
Section 27. Successors ......................................... 47
Section 28. Determinations and Actions by the
Board of Directors, etc. ........................... 47
Section 29. Exchange ........................................... 48
Section 30. Benefits of this Agreement ......................... 50
Section 31. Severability ....................................... 50
Section 32. Governing Law ...................................... 51
Section 33. Counterparts ....................................... 51
Section 34. Descriptive Headings ............................... 51
RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of September 28, 1999 (the "Agreement"),
between USX Corporation, a Delaware corporation (the "Company"), and
ChaseMellon Shareholder Services, L.L.C., a New Jersey limited liability
company (the "Rights Agent").
W I T N E S S E T H
WHEREAS, the Board of Directors of the Company (the "Board of
Directors") heretofore authorized the Rights Agreement, originally dated as
of October 10, 1989 and as subsequently amended (the "Original Rights
Agreement");
WHEREAS, on September 28, 1999, the Board of Directors determined it
desirable and in the best interests of the Company and its stockholders for
the Company to extend the benefits afforded by the Original Agreement and
to implement such extension by executing this Agreement;
WHEREAS, on September 28, 1999 (the "Rights Dividend Declaration
Date"), the Board of Directors authorized and declared a dividend
distribution of one USX-U.S. Steel Group Right (a "Steel Right") for each
share of Steel Stock (as defined herein) outstanding upon the close of
business on October 9, 1999 (the "Record Date"), and has authorized the
issuance of one Steel Right (as such number may hereinafter be adjusted
pursuant to the provisions of Section 11(p) hereof) for each share of Steel
Stock issued (whether as an original issuance or from the Company's
treasury) between the Record Date and the Distribution Date (as hereinafter
defined) and in certain other circumstances provided herein;
WHEREAS, on the Rights Dividend Declaration Date, the Board of
Directors authorized and declared a dividend distribution of one USX-
Marathon Group Right (a "Marathon Right") for each share of Marathon Stock
(as defined herein) outstanding upon the close of business on the Record
Date, and has authorized the issuance of one Marathon Right (as such number
may hereinafter be adjusted pursuant to the provisions of Section 11(p)
hereof) for each share of Marathon Stock issued (whether as an original
issuance or from the Company's treasury) between the Record Date and the
Distribution Date and in certain other circumstances provided herein; and
WHEREAS, each Marathon Right and Steel Right (together, the "Rights")
initially represent the right to purchase one one-hundredth of a share of
Series A Junior Preferred Stock of the Company, upon the terms and subject
to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who or which,
together with any of its Affiliates and Associates, shall be the Beneficial
Owner of shares of Voting Stock representing 15% or more of the outstanding
Voting Power of the Company, but shall not include (i) the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or of
any Subsidiary of the Company, or any Person or entity organized, appointed
or established by the Company for or pursuant to the terms of any such
plan, (ii) any Person whose ownership of shares of Voting Stock
representing 15% or more of the outstanding Voting Power of the Company
results solely from the Company's calculation from time to time of the
relative voting rights of the Marathon Stock and Steel Stock, unless and
until such Person, after becoming aware that such Person has become the
Beneficial Owner of fifteen percent (15%) or more of the outstanding shares
of Voting Stock, acquires Beneficial Ownership of additional shares of
Voting Stock representing one percent (1%) or more of the shares of Voting
Stock then outstanding, (iii) any Person who becomes the Beneficial Owner
of shares representing fifteen percent (15%) or more of the outstanding
Voting Power of the Company solely as a result of a reduction in the number
of shares of Voting Stock outstanding due to the repurchase of shares of
Voting Stock by the Company, unless and until such Person, after becoming
aware that such Person has become the Beneficial Owner of fifteen percent
(15%) or more of the then outstanding shares of Voting Stock, acquires
Beneficial Ownership of additional shares of Voting Stock representing one
percent (1%) or more of the shares of Voting Stock then outstanding, or
(iv) any such Person who has reported or is required to report such
ownership (but less than twenty percent (20%)) on Schedule 13G under the
Securities Exchange Act of 1934, as amended and in effect on the date of
the Agreement (the "Exchange Act") (or any comparable or successor report)
or on Schedule 13D under the Exchange Act (or any comparable or successor
report) which Schedule 13D does not state any intention to or reserve the
right to control or influence the management or policies of the Company or
engage in any of the actions specified in Item 4 of such schedule (other
than the disposition of the Voting Stock) and, within ten Business Days of
being requested by the Company to advise it regarding the same, certifies
to the Company that such Person acquired shares of Voting Stock in excess
of 14.9% inadvertently or without knowledge of the terms of the Rights and
who, together with all Affiliates and Associates, thereafter does not
acquire additional shares of Voting Stock while remaining the Beneficial
Owner of 15% or more of the shares of Voting Stock then outstanding;
provided, however, that if the Person requested to so certify fails to do
so within ten Business Days, then such Person shall become an Acquiring
Person immediately after such ten Business Day period.
(b) "Act" shall have the meaning set forth in Section 9(c)
hereof.
(c) "Adjustment Shares" shall have the meaning set forth in
Section 11(a)(ii) hereof.
(d) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Exchange Act.
(e) "Agreement" shall have the meaning set forth in the
recitals to this Agreement.
(f) A Person shall be deemed the "Beneficial Owner" of, and
shall be deemed to "beneficially own," any securities
(i) which such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has the right to
acquire (whether such right is exercisable immediately or only after
the passage of time) pursuant to any agreement, arrangement or
understanding (whether or not in writing) or upon the exercise of
conversion rights, exchange rights, rights, warrants or options, or
otherwise; provided, however, that a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially own," (A) securities
tendered pursuant to a tender or exchange offer made by such Person or
any of such Person's Affiliates or Associates until such tendered
securities are accepted for purchase or exchange, (B) securities
issuable upon exercise of Rights at any time prior to the occurrence
of a Triggering Event, or (C) securities issuable upon exercise of
Rights from and after the occurrence of a Triggering Event which
Rights were acquired by such Person or any of such Person's Affiliates
or Associates prior to the Distribution Date or pursuant to Section
3(a) or Section 22 hereof (the "Original Rights") or pursuant to
Section 11(i) hereof in connection with an adjustment made with
respect to any Original Rights;
(ii) which such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has the right to
vote or dispose of or has "beneficial ownership" of (as determined
pursuant to Rule 13d-3 of the General Rules and Regulations under the
Exchange Act), including pursuant to any agreement, arrangement or
understanding, whether or not in writing; provided, however, that a
Person shall not be deemed the "Beneficial Owner" of, or to
"beneficially own," any security under this subparagraph (ii) as a
result of an agreement, arrangement or understanding to vote such
security if such agreement, arrangement or understanding: (A) arises
solely from a revocable proxy given in response to a public proxy or
consent solicitation made pursuant to, and in accordance with, the
applicable provisions of the General Rules and Regulations under the
Exchange Act, (B) is not also then reportable by such Person on
Schedule 13D under the Exchange Act (or any comparable or successor
report) and (C) does not constitute a trust, proxy, power of attorney
or other device with the purpose or effect of allowing two or more
persons, acting in concert, to avoid being deemed "beneficial owners"
of such security or otherwise avoid the status of "Acquiring Person"
under the terms of this Agreement or as part of a plan or scheme to
avoid the reporting requirements under Schedule 13D or Sections 13(d)
or 13(g) of the Exchange Act; or
(iii) which are beneficially owned, directly or
indirectly, by any other Person (or any Affiliate or Associate
thereof) with which such Person (or any of such Person's Affiliates or
Associates) has any agreement, arrangement or understanding (whether
or not in writing), for the purpose of acquiring, holding, voting
(except pursuant to a revocable proxy as described in the proviso to
subparagraph (ii) of this paragraph (f)) or disposing of any voting
securities of the Company; provided, however, that nothing in this
paragraph (f) shall cause a Person engaged in business as an
underwriter of securities to be the "Beneficial Owner" of, or to
"beneficially own," any securities acquired through such Person's
participation in good faith in a firm commitment underwriting until
the expiration of forty days after the date of such acquisition, and
then only if such securities continue to be owned by such Person at
such expiration of forty days.
(g) "Board of Directors" shall have the meaning set forth
in the recitals to this Agreement.
(h) "Business Day" shall mean any day other than a
Saturday, Sunday or a day on which banking institutions in the jurisdiction
of the formation of the Rights Agent are authorized or obligated by law or
executive order to close.
(i) "Close of business" on any given date shall mean
5:00 P.M., New York City time, on such date; provided, however, that if
such date is not a Business Day it shall mean 5:00 P.M., New York City
time, on the next succeeding Business Day.
(j) "Common Stock" when used with reference to any Person,
shall mean the capital stock of such Person with the greatest voting power,
or the equity securities or other equity interest having power to control
or direct the management, of such Person.
(k) "Common Stock Equivalents" shall have the meaning set
forth in Section 11(a)(iii) hereof.
(l) "Company" shall have the meaning set forth in the
recitals to this Agreement.
(m) "Current Market Price" shall have the meaning set forth
in Section 11(d)(i) hereof.
(n) "Current Value" shall have the meaning set forth in
Section 11(a)(iii) hereof.
(o) "Distribution Date" shall have the meaning set forth in
Section 3(a) hereof.
(p) "Equivalent Preferred Stock" shall have the meaning set
forth in Section 11(b) hereof.
(q) "Exchange Act" shall have the meaning set forth in
Section l(a) hereof.
(r) "Exchange Ratio" shall have the meaning set forth in
Section 29(a) hereof.
(s) "Expiration Date" shall have the meaning set forth in
Section 7(a) hereof.
(t) "Final Expiration Date" shall have the meaning set
forth in Section 7(a) hereof.
(u) "Marathon Right" shall have the meaning set forth in
the recitals to this Agreement.
(v) "Marathon Rights Certificates" shall have the meaning
set forth in Section 3(a) hereof.
(w) "Marathon Stock" shall mean the USX-Marathon Group
Common Stock, par value $1.00 per share, of the Company.
(x) "NASDAQ" shall have the meaning set forth in Section
11(d)(i) hereof.
(y) "Original Rights" shall have the meaning set forth in
Section 1(f) hereof.
(z) "Original Rights Agreement" shall have the meaning set
forth in the recitals to this Agreement.
(aa) "Person" shall mean any individual, firm, corporation,
partnership, limited liability company or other entity.
(bb) "Preferred Stock" shall mean shares of Series A Junior
Preferred Stock, without par value, of the Company, and, to the extent that
there are not a sufficient number of shares of Series A Junior Preferred
Stock authorized to permit the full exercise of the Rights, any other
series of Preferred Stock, without par value, of the Company designated for
such purpose containing terms substantially similar to the terms of the
Series A Junior Preferred Stock.
(cc) "Principal Party" shall have the meaning set forth in
Section 13(b) hereof.
(dd) "Purchase Price" shall have the meaning set forth in
Section 4(a) hereof.
(ee) "Qualifying Offer" shall have the meaning set forth in
Section 11(a)(ii) hereof.
(ff) "Record Date" shall have the meaning set forth in the
recitals to this Agreement.
(gg) "Redemption Price" shall have the meaning set forth in
Section 23(a) hereof.
(hh) "Rights" shall have the meaning set forth in the
recitals to this Agreement.
(ii) "Rights Agent" shall have the meaning set forth in the
recitals to this Agreement.
(jj) "Rights Certificates" shall have the meaning set forth
in Section 3(a) hereof.
(kk) "Rights Dividend Declaration Date" shall have the
meaning set forth in the recitals to this Agreement.
(ll) "Section 11(a)(ii) Event" shall mean any event
described in Section 11(a)(ii) hereof.
(mm) "Section 11(a)(ii) Trigger Date" shall have the meaning
set forth in Section 11(a)(iii) hereof.
(nn) "Section 13 Event" shall mean any event described in
clause (x), (y) or (z) of Section 13(a) hereof.
(oo) "Spread" shall have the meaning set forth in Section
11(a)(iii) hereof.
(pp) "Steel Right" shall have the meaning set forth in the
recitals to this Agreement.
(qq) "Steel Rights Certificates" shall have the meaning set
forth in Section 3(a) hereof.
(rr) "Steel Stock" shall mean the USX-U.S. Steel Group
Common Stock, par value $1.00 per share, of the Company.
(ss) "Stock Acquisition Date" shall mean the first date of
public announcement (which, for purposes of this definition, shall include,
without limitation, a report filed or amended pursuant to Section 13(d)
under the Exchange Act) by the Company or an Acquiring Person that an
Acquiring Person has become such, other than pursuant to a Qualifying
Offer.
(tt) "Subsidiary" shall mean, with reference to any Person,
any corporation of which an amount of voting securities sufficient to elect
at least a majority of the directors of such corporation is beneficially
owned, directly or indirectly, by such Person, or otherwise controlled by
such Person.
(uu) "Substitution Period" shall have the meaning set forth
in Section 11(a)(iii) hereof.
(vv) "Summary of Rights" shall have the meaning set forth in
Section 3(b) hereof.
(ww) "Trading Day" shall have the meaning set forth in
Section 11(d)(i) hereof.
(xx) "Triggering Event" shall mean any Section 11(a)(ii)
Event or any Section 13 Event.
(yy) "Voting Power" shall mean the total voting power
represented by the outstanding Marathon Stock and the outstanding Steel
Stock.
(zz) "Voting Stock" shall mean the Marathon Stock and the
Steel Stock.
Section 2. Appointment of Rights Agent. The Company hereby
appoints the Rights Agent to act as agent for the Company and the holders
of the Rights in accordance with the terms and conditions hereof, and the
Rights Agent hereby accepts such appointment. The Company may from time to
time appoint such Co-Rights Agents as it may deem necessary or desirable.
Section 3. Issue of Rights Certificates.
(a) Until the earlier of (i) the close of business on the
tenth Business Day after the Stock Acquisition Date (or, if the tenth
Business Day after the Stock Acquisition Date occurs before the Record
Date, the close of business on the Record Date) or (ii) the close of
business on the tenth Business Day (or such later date as may be determined
by the Board of Directors) after the date that a tender or exchange offer
by any Person (other than the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or of any Subsidiary of the Company,
or any Person or entity organized, appointed or established by the Company
for or pursuant to the terms of any such plan) is first published or sent
or given within the meaning of Rule 14d-2(a) of the General Rules and
Regulations under the Exchange Act, if, upon consummation thereof, such
Person would become an Acquiring Person, in either instance, other than
pursuant to a Qualifying Offer (the earlier of (i) and (ii) being herein
referred to as the "Distribution Date"), (x) the Marathon Rights and Steel
Rights will be evidenced (subject to the provisions of paragraph (b) of
this Section 3) by the certificates for the Marathon Stock and Steel Stock,
respectively, registered in the names of the holders of such Voting Stock
(which certificates for Marathon Stock and Steel Stock shall be deemed also
to be certificates for Marathon Rights and Steel Rights, respectively) and
not by separate certificates, and (y) the Rights will be transferable only
in connection with the transfer of the underlying shares of Voting Stock
(including a transfer to the Company). As soon as practicable after the
Distribution Date, the Company shall promptly notify the Rights Agent
thereof and provide the Rights Agent with a shareholders list of Marathon
Stock and Steel Stock, and the Rights Agent will send or cause to be sent
by first-class, insured, postage prepaid mail, to each record holder of (i)
the Marathon Stock as of the close of business on the Distribution Date, at
the address of such holder shown on the records of the Company, one or more
rights certificates, in substantially the form of Exhibit B-1 hereto (the
"Marathon Rights Certificates"), evidencing one Marathon Right for each
share of Marathon Stock so held, subject to adjustment as provided herein
and (ii) the Steel Stock as of the close of business on the Distribution
Date, at the address of such holder shown on the records of the Company,
one or more rights certificates, in substantially the form of Exhibit B-2
hereto (the "Steel Rights Certificates" and, together with the Marathon
Rights Certificates, the "Rights Certificates"), evidencing one Steel Right
for each share of Steel Stock so held, subject to adjustment as provided
herein. In the event that an adjustment in the number of Rights per share
of Voting Stock has been made pursuant to Section 11(p) hereof, at the time
of distribution of the Rights Certificates, the Company shall make the
necessary and appropriate rounding adjustments (in accordance with Section
14(a) hereof) so that Rights Certificates representing only whole numbers
of Rights are distributed and cash is paid in lieu of any fractional
Rights. As of and after the Distribution Date, the Rights will be
evidenced solely by such Rights Certificates.
(b) The Company will make available, as promptly as
practicable following the Record Date, a copy of a Summary of Rights, in
substantially the form attached hereto as Exhibit A (the "Summary of
Rights"), to any holder of Rights who may so request from time to time
prior to the Expiration Date. With respect to certificates for the Voting
Stock outstanding as of the Record Date, until the Distribution Date, the
Rights will be evidenced by such certificates for the Voting Stock and the
registered holders of Voting Stock shall also be the registered holders of
the associated Rights. Until the earlier of the Distribution Date or the
Expiration Date, the transfer of any certificates representing shares of
Voting Stock in respect of which Rights have been issued shall also
constitute the transfer of the Rights associated with such shares of Voting
Stock.
(c) Rights shall be issued in respect of all shares of
Voting Stock which are issued (whether originally issued or from the
Company's treasury) after the Record Date but prior to the earlier of the
Distribution Date or the Expiration Date. Certificates representing such
shares of Voting Stock shall also be deemed to be certificates for Rights,
and shall bear either (i) the legend set forth in the Original Rights
Agreement or (ii) the following legend:
This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in the Rights Agreement (the "Rights
Agreement") between USX Corporation (the "Company") and the Rights
Agent thereunder (the "Rights Agent"), the terms of which are hereby
incorporated herein by reference and a copy of which is on file at the
principal offices of the Company. Under certain circumstances, as set
forth in the Rights Agreement, such Rights will be evidenced by
separate certificates and will no longer be evidenced by this
certificate. The Company will mail to the holder of this certificate
a copy of the Rights Agreement, as in effect on the date of mailing,
without charge promptly after receipt of a written request therefor.
Under certain circumstances set forth in the Rights Agreement, Rights
issued to, or held by, any Person who is, was or becomes an Acquiring
Person, or any Affiliate or Associate thereof (as such terms are
defined in the Rights Agreement), whether currently held by or on
behalf of such Person or by any subsequent holder, may become null and
void.
With respect to such certificates containing the foregoing legend (or the
legend required under the Original Rights Agreement), until the earlier of
(i) the Distribution Date or (ii) the Expiration Date, the Rights
associated with the Voting Stock represented by such certificates shall be
evidenced by such certificates alone and registered holders of Voting Stock
shall also be the registered holders of the associated Rights, and the
transfer of any of such certificates shall also constitute the transfer of
the Rights associated with the Voting Stock represented by such
certificates.
Section 4. Form of Rights Certificates.
(a) The Marathon Rights Certificates and Steel Rights
Certificates (and the forms of election to purchase and of assignment to be
printed on the reverse thereof) shall each be substantially in the form set
forth in Exhibit B-1 and Exhibit B-2, respectively, 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 and which do not
adversely affect the rights, duties or responsibilities of the Rights
Agent, or as may be required to comply with any applicable law or with any
rule or regulation made pursuant thereto or with any rule or regulation of
any stock exchange on which the Rights may from time to time be listed, or
to conform to usage. Subject to the provisions of Section 11 and Section
22 hereof, the Rights Certificates, whenever distributed, shall be dated as
of the Record Date and on their face shall entitle the holders thereof to
purchase such number of one one-hundredths of a share of Preferred Stock as
shall be set forth therein at the price set forth therein (such exercise
price per one one-hundredth of a share, the "Purchase Price"), but the
amount and type of securities purchasable upon the exercise of each Right
and the Purchase Price thereof shall be subject to adjustment as provided
herein.
(b) Any Rights Certificate issued pursuant to Section 3(a),
Section 11(a)(i) or Section 22 hereof that represents Rights beneficially
owned by (i) an Acquiring Person or any Associate or Affiliate of an
Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee after such Acquiring
Person becomes such, or (iii) a transferee of an Acquiring Person (or of
any such Associate or Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person becoming such and receives such
Rights pursuant to either (A) a transfer (whether or not for consideration)
from the Acquiring Person to holders of equity interests in such Acquiring
Person or to any Person with whom such Acquiring Person has any continuing
agreement, arrangement or understanding regarding the transferred Rights or
(B) a transfer which the Board of Directors has determined is part of a
plan, arrangement or understanding which has as a primary purpose or effect
avoidance of Section 7(e) hereof, and, provided that the Company shall have
notified the Rights Agent that this Section 4(b) applies, any Rights
Certificate issued pursuant to Section 6 or Section 11 hereof upon
transfer, exchange, replacement or adjustment of any other Rights
Certificate referred to in this sentence, shall contain (to the extent
feasible) the following legend:
The Rights represented by this Rights Certificate are or were
beneficially owned by a Person who was or became an Acquiring Person
or an Affiliate or Associate thereof (as such terms are defined in the
Rights Agreement). Accordingly, this Rights Certificate and the
Rights represented hereby may become null and void in the
circumstances specified in Section 7(e) of such Agreement.
Section 5. Countersignature and Registration.
(a) The Rights Certificates shall be executed on behalf of
the Company by its Chairman of the Board, its Vice Chairman or any Vice
President, either manually or by facsimile signature, and shall have
affixed thereto the Company's seal or a facsimile thereof which shall be
attested by the Secretary or an Assistant Secretary of the Company, either
manually or by facsimile signature. The Rights Certificates shall be
countersigned by the Rights Agent, either manually or by facsimile
signature, and shall not be valid for any purpose unless so countersigned.
In case any officer of the Company who shall have signed any of the Rights
Certificates shall cease to be such officer of the Company before
countersignature by the Rights Agent and issuance and delivery by the
Company, such Rights Certificates, nevertheless, may be countersigned by
the Rights Agent and issued and delivered by the Company with the same
force and effect as though the person who signed such Rights Certificates
had not ceased to be such officer of the Company; and any Rights
Certificates may be signed on behalf of the Company by any person who, at
the actual date of the execution of such Rights Certificate, shall be a
proper officer of the Company to sign such Rights Certificate, although at
the date of the execution of this Rights Agreement any such person was not
such an officer.
(b) Following the Distribution Date and receipt by the
Rights Agent of all relevant information, the Rights Agent will keep or
cause to be kept, at its office designated pursuant to Section 25 hereof,
books for registration and transfer of the Rights Certificates issued
hereunder. Such books shall show the names and addresses of the respective
holders of the Rights Certificates, the number of Rights evidenced on its
face by each of the Rights Certificates and the date of each of the Rights
Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of
Rights Certificates; Mutilated, Destroyed, Lost or Stolen Rights
Certificates.
(a) Subject to the provisions of Section 4(b), Section 7(e)
and Section 14 hereof, at any time after the close of business on the
Distribution Date, and at or prior to the close of business on the
Expiration Date, any Rights Certificate or Certificates (other than Rights
Certificates that may have been exchanged pursuant to Section 29 hereof)
may be transferred, split up, combined or exchanged for another Rights
Certificate or Certificates, entitling the registered holder to purchase a
like number of one one-hundredths of a share of Preferred Stock (or,
following a Triggering Event, Marathon Stock, Steel Stock, other
securities, cash or other assets, as the case may be) as the Rights
Certificate or Certificates surrendered then entitled such holder (or
former holder in the case of a transfer) to purchase. Any registered
holder desiring to transfer, split up, combine or exchange any Rights
Certificate or Certificates shall make such request in writing delivered to
the Rights Agent, and shall surrender the Rights Certificate or
Certificates to be transferred, split up, combined or exchanged at the
principal office or offices of the Rights Agent designated for such
purpose. Neither the Rights Agent nor the Company shall be obligated to
take any action whatsoever with respect to the transfer of any such
surrendered Rights Certificate until the registered holder shall have
completed and signed the certificate contained in the form of assignment on
the reverse side of such Rights Certificate and shall have provided such
additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as the Company or the
Rights Agent shall reasonably request. Thereupon the Rights Agent shall,
subject to Section 4(b), Section 7(e), Section 14 and Section 29 hereof,
countersign and deliver to the Person entitled thereto a Rights Certificate
or Rights Certificates, as the case may be, as so requested. The Company
may require payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer, split up,
combination or exchange of Rights Certificates.
(b) Upon receipt by the Company and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft, destruction or
mutilation of a Rights Certificate, and, in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to them, and
reimbursement to the Company and the Rights Agent of all reasonable
expenses incidental thereto, and upon surrender to the Rights Agent and
cancellation of the Rights Certificate if mutilated, the Company will
execute and deliver a new Rights Certificate of like tenor to the Rights
Agent for countersignature and delivery to the registered owner in lieu of
the Rights Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration
Date of Rights.
(a) Subject to Section 7(e) hereof, the registered holder
of any Rights Certificate may exercise the Rights evidenced thereby (except
as otherwise provided herein including, without limitation, the
restrictions on exercisability set forth in Section 9(c), Section
11(a)(iii) and Section 23(a) hereof and the exchange provisions set forth
in Section 29 hereof) in whole or in part at any time after the
Distribution Date upon surrender of the Rights Certificate, with the form
of election to purchase and the certificate on the reverse side thereof
duly executed, to the Rights Agent at the office or offices of the Rights
Agent designated for such purpose, together with payment of the aggregate
Purchase Price with respect to the total number of one one-hundredths of a
share (or other securities, cash or other assets, as the case may be) as to
which such surrendered Rights are then exercisable, at or prior to the
earlier of (i) the close of business on October 9, 2009, or such later date
as may be established by the Board of Directors prior to the expiration of
the Rights (the "Final Expiration Date"), or (ii) the time at which the
Rights are redeemed or exchanged as provided in Section 23 and Section 29
hereof (the earlier of (i) and (ii) being herein referred to as the
"Expiration Date").
(b) The Purchase Price for each one one-hundredth of a
share of Preferred Stock pursuant to the exercise of a Right shall
initially be $110, and shall be subject to adjustment from time to time as
provided in Sections 11 and 13(a) hereof and shall be payable in accordance
with paragraph (c) below.
(c) Upon receipt of a Rights Certificate representing
exercisable Rights, with the form of election to purchase and the
certificate duly executed, accompanied by payment, with respect to each
Right so exercised, of the Purchase Price per one one-hundredth of a share
of Preferred Stock (or other shares, securities, cash or other assets, as
the case may be) to be purchased as set forth below and an amount equal to
any applicable transfer tax, the Rights Agent shall, subject to Section
20(k) hereof, thereupon promptly (i) (A) requisition from any transfer
agent of the shares of Preferred Stock (or make available, if the Rights
Agent is the transfer agent for such shares) certificates for the total
number of one one-hundredths of a share of Preferred Stock to be purchased
and the Company hereby irrevocably authorizes its transfer agent to comply
with all such requests, or (B) if the Company shall have elected to deposit
the total number of shares of Preferred Stock issuable upon exercise of the
Rights hereunder with a depository agent (which may include the Company),
requisition from the depository agent depository receipts representing such
number of one one-hundredths of a share of Preferred Stock as are to be
purchased (in which case certificates for the shares of Preferred Stock
represented by such receipts shall be deposited by the transfer agent with
the depository agent) and the Company will direct the depository agent to
comply with such request, (ii) requisition from the Company the amount of
cash, if any, to be paid in lieu of fractional shares in accordance with
Section 14 hereof, (iii) after receipt of such certificates or depository
receipts, cause the same to be delivered to or upon the order of the
registered holder of such Rights Certificate, registered in such name or
names as may be designated by such holder, and (iv) after receipt thereof,
deliver such cash, if any, to or upon the order of the registered holder of
such Rights Certificate. The payment of the Purchase Price (as such amount
may be reduced pursuant to Section 11(a)(iii) hereof) shall be made in cash
or by certified bank check or bank draft payable to the order of the
Company. In the event that the Company is obligated to issue other
securities (including Marathon Stock or Steel Stock) of the Company, pay
cash and/or distribute other property pursuant to Section 11(a) hereof, the
Company will make all arrangements necessary so that such other securities,
cash and/or other property are available for distribution by the Rights
Agent, if and when appropriate. The Company reserves the right to require
prior to the occurrence of a Triggering Event that, upon exercise of
Rights, a number of Rights be exercised so that only whole shares of
Preferred Stock would be issued.
(d) In case the registered holder of any Rights Certificate
shall exercise less than all the Rights evidenced thereby, a new Rights
Certificate evidencing Rights equivalent to the Rights remaining
unexercised shall be issued by the Rights Agent and delivered to, or upon
the order of, the registered holder of such Rights Certificate, registered
in such name or names as may be designated by such holder, subject to the
provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the
contrary, from and after the first occurrence of a Section 11(a)(ii) Event,
any Rights beneficially owned by (i) an Acquiring Person or an Associate or
Affiliate of an Acquiring Person, (ii) a direct or indirect transferee of
an Acquiring Person (or of any such Associate or Affiliate) who becomes a
transferee after the Acquiring Person becomes such, or (iii) a transferee
of an Acquiring Person (or of any such Associate or Affiliate) who becomes
a transferee prior to or concurrently with the Acquiring Person becoming
such and receives such Rights pursuant to either (A) a transfer (whether or
not for consideration) from the Acquiring Person to holders of equity
interests in such Acquiring Person or to any Person with whom the Acquiring
Person has any continuing agreement, arrangement or understanding regarding
the transferred Rights or (B) a transfer which the Board of Directors has
determined is part of a plan, arrangement or understanding which has as a
primary purpose or effect the avoidance of this Section 7(e), shall become
null and void without any further action and no holder of such Rights shall
have any rights whatsoever with respect to such Rights, whether under any
provision of this Agreement or otherwise. The Company shall notify the
Rights Agent when this Section 7(e) applies and shall use all reasonable
efforts to insure that the provisions of this Section 7(e) and Section 4(b)
hereof are complied with, but neither the Company nor the Rights Agent
shall have any liability to any holder of Rights Certificates or other
Person as a result of the Company's failure to make any determinations with
respect to an Acquiring Person or its Affiliates, Associates or transferees
hereunder.
(f) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Company shall be obligated to
undertake any action with respect to a registered holder upon the
occurrence of any purported exercise as set forth in this Section 7 unless
such registered holder shall have (i) completed and signed the certificate
contained in the form of election to purchase set forth on the reverse side
of the Rights Certificate surrendered for such exercise, and (ii) provided
such additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as the Company shall
reasonably request.
Section 8. Cancellation and Destruction of Rights
Certificates. All Rights Certificates surrendered for the purpose of
exercise, transfer, split up, combination or exchange shall, if surrendered
to the Company or any of its agents, be delivered to the Rights Agent for
cancellation or in cancelled form, or, if surrendered to the Rights Agent,
shall be cancelled by it, and no Rights Certificates shall be issued in
lieu thereof except as expressly permitted by any of the provisions of this
Agreement. The Company shall deliver to the Rights Agent for cancellation
and retirement, and the Rights Agent shall so cancel and retire, any other
Rights Certificate purchased or acquired by the Company otherwise than upon
the exercise thereof. The Rights Agent shall deliver all cancelled Rights
Certificates to the Company, or shall, at the written request of the
Company, destroy such cancelled Rights Certificates, and in such case shall
deliver a certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Capital Stock.
(a) The Company covenants and agrees that it will cause to
be reserved and kept available out of its authorized and unissued shares of
Preferred Stock (and, following the occurrence of a Triggering Event, out
of its authorized and unissued shares of Marathon Stock, Steel Stock and/or
other securities, or out of its authorized and issued shares held in its
treasury), the number of shares of Preferred Stock (and, following the
occurrence of a Triggering Event, Marathon Stock, Steel Stock and/or other
securities) that, as provided in this Agreement including Section
11(a)(iii) hereof, will be sufficient to permit the exercise in full of all
outstanding Rights.
(b) So long as the shares of Preferred Stock (and,
following the occurrence of a Triggering Event, Marathon Stock, Steel Stock
and/or other securities) issuable and deliverable upon the exercise of the
Rights may be listed on any national securities exchange, the Company shall
use its best efforts to cause, from and after such time as the Rights
become exercisable, all shares reserved for such issuance to be listed on
such exchange upon official notice of issuance upon such exercise.
(c) The Company shall use its best efforts to (i) file, as
soon as practicable following the earliest date after the first occurrence
of a Section 11(a)(ii) Event on which the consideration to be delivered by
the Company upon exercise of the Rights has been determined in accordance
with Section 11(a)(iii) hereof, a registration statement under the
Securities Act of 1933 (the "Act"), with respect to the securities
purchasable upon exercise of the Rights on an appropriate form, (ii) cause
such registration statement to become effective as soon as practicable
after such filing, and (iii) cause such registration statement to remain
effective (with a prospectus at all times meeting the requirements of the
Act) until the earlier of (A) the date as of which the Rights are no longer
exercisable for such securities, and (B) the date of the expiration of the
Rights, The Company will also take such action as may be appropriate under,
or to ensure compliance with, the securities or "blue sky" laws of the
various states in connection with the exercisability of the Rights. The
Company may temporarily suspend, for a period of time not to exceed ninety
(90) days after the date set forth in clause (i) of the first sentence of
this Section 9(c), the exercisability of the Rights in order to prepare and
file such registration statement and permit it to become effective. Upon
any such suspension, the Company shall issue a public announcement stating
that the exercisability of the Rights has been temporarily suspended, as
well as a public announcement at such time as the suspension is no longer
in effect. In addition, if the Company shall determine that a registration
statement is required following the Distribution Date, the Company may
temporarily suspend the exercisability of the Rights until such time as a
registration statement has been declared effective. Notwithstanding any
provision of this Agreement to the contrary, the Rights shall not be
exercisable in any jurisdiction if the requisite qualification in such
jurisdiction shall not have been obtained, the exercise thereof shall not
be permitted by applicable law or a registration statement shall not have
been declared effective.
(d) The Company covenants and agrees that it will take all
such action as may be necessary to ensure that all one one-hundredths of a
share of Preferred Stock (and, following the occurrence of a Triggering
Event, Marathon Stock, Steel Stock and/or other securities) delivered upon
exercise of Rights shall, at the time of delivery of the certificates for
such shares (subject to payment of the Purchase Price), be duly and validly
authorized and issued and fully paid and nonassessable.
(e) The Company further covenants and agrees that it will
pay when due and payable any and all federal and state transfer taxes and
charges which may be payable in respect of the issuance or delivery of the
Rights Certificates and of any certificates for a number of one one-
hundredths of a share of Preferred Stock (or Marathon Stock, Steel Stock
and/or other securities, as the case may be) upon the exercise of Rights.
The Company shall not, however, be required to pay any transfer tax which
may be payable in respect of any transfer or delivery of Rights
Certificates to a Person other than, or the issuance or delivery of a
number of one one-hundredths of a share of Preferred Stock (or Marathon
Stock, Steel Stock and/or other securities, as the case may be) in respect
of a name other than that of, the registered holder of the Rights
Certificates evidencing Rights surrendered for exercise or to issue or
deliver any certificates for a number of one one-hundredths of a share of
Preferred Stock (or Marathon Stock, Steel Stock and/or other securities, as
the case may be) in a name other than that of the registered holder upon
the exercise of any Rights until such tax shall have been paid (any such
tax being payable by the holder of such Rights Certificate at the time of
surrender) or until it has been established to the Company's satisfaction
that no such tax is due.
Section 10. Preferred Stock Record Date. Each person in whose
name any certificate for a number of one one-hundredths of a share of
Preferred Stock (or Marathon Stock, Steel Stock and/or other securities, as
the case may be) is issued upon the exercise of Rights shall for all
purposes be deemed to have become the holder of record of such fractional
shares of Preferred Stock (or Marathon Stock, Steel Stock and/or other
securities, as the case may be) represented thereby on, and such
certificate shall be dated, the date upon which the Rights Certificate
evidencing such Rights was duly surrendered and payment of the Purchase
Price (and all applicable transfer taxes) was made; provided, however, that
if the date of such surrender and payment is a date upon which the
Preferred Stock (or Marathon Stock, Steel Stock and/or other securities, as
the case may be) transfer books of the Company are closed, such Person
shall be deemed to have become the record holder of such shares (fractional
or otherwise) on, and such certificate shall be dated, the next succeeding
Business Day on which the Preferred Stock (or Marathon Stock, Steel Stock
and/or other securities, as the case may be) transfer books of the Company
are open. Prior to the exercise of the Rights evidenced thereby, the
holder of a Rights Certificate shall not be entitled to any rights of a
stockholder of the Company with respect to shares for which the Rights
shall be exercisable, including, without limitation, the right to vote, to
receive dividends or other distributions or to exercise any preemptive
rights, and shall not be entitled to receive any notice of any proceedings
of the Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number and Kind of
Shares or Number of Rights. The Purchase Price, the number and kind of
shares covered by each Right and the number of Rights outstanding are
subject to adjustment from time to time as provided in this Section 11.
(a) (i) In the event the Company shall at any time after
the date of this Agreement (A) declare a dividend on the Preferred Stock
payable in shares of Preferred Stock, (B) subdivide the outstanding
Preferred Stock, (C) combine the outstanding Preferred Stock into a smaller
number of shares, or (D) issue any shares of its capital stock in a
reclassification of the Preferred Stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation), except as otherwise
provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price
in effect at the time of the record date for such dividend or of the
effective date of such subdivision, combination or reclassification, and
the number and kind of shares of Preferred Stock or capital stock, as the
case may be, issuable on such date, shall be proportionately adjusted so
that the holder of any Right exercised after such time shall be entitled to
receive, upon payment of the Purchase Price then in effect, the aggregate
number and kind of shares of Preferred Stock or capital stock, as the case
may be, which, if such Right had been exercised immediately prior to such
date and at a time when the Preferred Stock transfer books of the Company
were open, such holder would have owned upon such exercise and been
entitled to receive by virtue of such dividend, subdivision, combination or
reclassification. If an event occurs which would require an adjustment
under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the
adjustment provided for in this Section 11(a)(i) shall be in addition to,
and shall be made prior to, any adjustment required pursuant to Section
11(a)(ii) hereof.
(ii) In the event that any Person shall at any time
after the Rights Dividend Declaration Date become an Acquiring Person,
unless the event causing such Person to become an Acquiring Person is
a transaction set forth in Section 13(a) hereof, or is an acquisition
of shares of Voting Stock pursuant to a cash tender offer for all
outstanding shares of Voting Stock which meets all of the following
requirements:
(1) on or prior to the date such offer is
commenced within the meaning of Rule 14d-2(a) of the General
Rules and Regulations under the Exchange Act, such Person has,
and has provided to the Company, firm written commitments from
responsible financial institutions, which have been accepted by
such Person (or one of its Affiliates), to provide, subject only
to customary terms and conditions, funds for such offer which,
when added to the amount of cash and cash equivalents which such
Person then has available and has irrevocably committed in
writing to the Company to utilize for purposes of such offer,
will be sufficient to pay for all shares of Voting Stock
outstanding on a fully diluted basis and all related expenses;
(2) shares of Voting Stock representing a
majority of the Voting Power as of the day immediately prior to
the date of announcement of such offer (other than Voting Stock
beneficially owned by such Person immediately prior to such
offer) are tendered and purchased pursuant to such offer;
(3) such offer remains open for at least 45
Business Days; provided, that (x) if there is any increase in the
cash price of such offer, such offer must remain open for at
least an additional 20 Business Days after the last such
increase, (y) such offer must remain open for at least 20
Business Days after the date that any bona fide alternative offer
is made which, in the opinion of one or more investment banking
firms designated by the Company, provides for consideration per
share of Marathon Stock and Steel Stock, respectively, in excess
of that provided for in such offer, and (z) such offer must
remain open for at least 20 Business Days after the date on which
such Person reduces the per share price offered in accordance
with clause (4)(y) of this Section 11(a)(ii) (provided, in the
case of each of clause (x), (y) and (z) above, in no event will
such offer have been outstanding for less than 45 Business Days);
provided further, however, that such offer need not remain open,
as a result of this clause (3), beyond (i) the time which any
other offer satisfying the criteria for a Qualifying Offer is
then required to be kept open under this clause (3), or (ii) the
scheduled expiration date, as such date may be extended by public
announcement prior to the then scheduled expiration date, of any
other offer with respect to which the Board of Directors has
agreed to redeem the Rights immediately prior to acceptance for
payment of shares thereunder (unless such other offer is
terminated prior to its expiration without any shares having been
purchased thereunder); and
(4) prior to or on the date that such offer
is commenced within the meaning of Rule 14d-2(a) of the General
Rules and Regulations under the Exchange Act, such Person makes
an irrevocable written commitment to the Company (x) to
consummate an all-cash transaction or transactions promptly upon
the completion of such offer, whereby all shares of Voting Stock
not purchased in such offer will be acquired at the same price
per share of Marathon Stock and Steel Stock, respectively, paid
in such offer, provided that the Board of Directors shall have
granted any approvals required to enable such Person to
consummate such transaction or transactions following
consummation of such offer without obtaining the vote of any
other stockholder, (y) that such Person will not make any
amendment to the original offer which reduces the per share price
offered (other than a reduction to reflect any dividend declared
by the Company after the commencement of such offer or any
material change in the capital structure of the Company initiated
by the Company after the commencement of such offer, whether by
way of recapitalization, reorganization, repurchase or
otherwise), changes the form of consideration offered, reduces
the number of shares being sought or which is in any other
respect materially adverse to the holders of Voting Stock, and
(z) that neither such Person nor any of its Affiliates or
Associates will make any offer for any equity securities of the
Company for a period of one year after the commencement of the
original offer if such original offer does not result in the
tender of the number of shares of Voting Stock required to be
purchased pursuant to clause (2) above, unless another all cash
tender offer for all outstanding shares of Voting Stock is
commenced (a) at a price per share of Marathon Stock and Steel
Stock, respectively, in excess of that provided for in such
original offer or (b) with the approval of the Board of Directors
(in which event, any new offer by such Person or of any of its
Affiliates or Associates must be at a price not less than that
provided for in such approved offer);
(an offer meeting the requirements set forth above being referred
to herein as a "Qualifying Offer"), then, promptly following five
(5) days after the date of the first occurrence of such an event,
proper provision shall be made so that each holder of a Marathon
Right or a Steel Right (except as provided below and in Section
7(e) hereof), as the case may be, shall thereafter have the right
to receive, upon exercise thereof at the then current Purchase
Price in accordance with the terms of this Agreement, in lieu of
a number of one one-hundredths of a share of Preferred Stock,
such number of shares of Marathon Stock or Steel Stock,
respectively, as shall equal the result obtained by (x)
multiplying the then current Purchase Price by the then number of
one one-hundredths of a share of Preferred Stock for which a
Right was exercisable immediately prior to the first occurrence
of a Section 11(a)(ii) Event, and (y) dividing that product
(which, following such first occurrence, shall thereafter be
referred to as the "Purchase Price" for each Right and for all
purposes of this Agreement) by 50% of the Current Market Price
per share of Marathon Stock, in the case of a Marathon Right, or
Steel Stock, in the case of a Steel Right, on the date of such
first occurrence (such number of shares of Marathon Stock or
Steel Stock, as the case may be, being referred to as the
"Adjustment Shares").
(iii) In the event that the number of shares of
Marathon Stock and/or Steel Stock which are authorized by the
Company's Restated Certificate of Incorporation but that are not
outstanding or reserved for issuance for purposes other than upon
exercise of the Rights are not sufficient to permit the exercise in
full of the Rights in accordance with the foregoing subparagraph (ii)
of this Section 11(a), the Company shall (A) determine the excess of
(1) the value of the Adjustment Shares issuable upon the exercise of a
Right (the "Current Value") over (2) the Purchase Price (such excess,
the "Spread"), and (B) with respect to each Right (subject to Section
7(e) hereof), make adequate provision to substitute for the Adjustment
Shares, upon exercise of a Right and payment of the applicable
Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3)
Marathon Stock or Steel Stock, or other equity securities of the
Company (including, without limitation, shares, or units of shares, of
preferred stock (irrespective of the voting rights associated with any
units or shares of preferred stock) which the Board of Directors has
deemed to have the same value as shares of Marathon Stock or Steel
Stock (such shares of preferred stock, "Common Stock Equivalents")),
(4) debt securities of the Company, (5) other assets, or (6) any
combination of the foregoing, having an aggregate value equal to the
Current Value, where such aggregate value has been determined by the
Board of Directors based upon the advice of a nationally recognized
investment banking firm selected by the Board of Directors; provided,
however, if the Company shall not have made adequate provision to
deliver value pursuant to clause (B) above within thirty (30) days
following the later of (x) the first occurrence of a Section 11(a)(ii)
Event and (y) the date on which the Company's right of redemption
pursuant to Section 23(a) expires (the later of (x) and (y) being
referred to herein as the "Section 11(a)(ii) Trigger Date"), then the
Company shall be obligated to deliver, upon the surrender for exercise
of a Right and without requiring payment of the Purchase Price, shares
of Marathon Stock or Steel Stock (to the extent available), as the
case may be, and then, if necessary, cash, which shares and/or cash
have an aggregate value equal to the Spread. If the Board of
Directors shall determine in good faith that it is likely that
sufficient additional shares of Marathon Stock or Steel Stock could be
authorized for issuance upon exercise in full of the Rights, the
thirty (30) day period set forth above may be extended to the extent
necessary, but not more than ninety (90) days after the Section
11(a)(ii) Trigger Date, in order that the Company may seek stockholder
approval for the authorization of such additional shares (such period,
as it may be extended, the "Substitution Period"). To the extent that
the Company determines that some action need be taken pursuant to the
first and/or second sentences of this Section 11(a)(iii), the Company
(x) shall provide, subject to Section 7(e) hereof, that such action
shall apply uniformly to all outstanding Rights, and (y) may suspend
the exercisability of the Rights until the expiration of the
Substitution Period in order to seek any authorization of additional
shares and/or to decide the appropriate form of distribution to be
made pursuant to such first sentence and to determine the value
thereof. In the event of any such suspension, the Company shall issue
a public announcement stating that the exercisability of the Rights
has been temporarily suspended, as well as a public announcement at
such time as the suspension is no longer in effect. For purposes of
this Section 11(a)(iii), the value of each Adjustment Share shall be
the Current Market Price per share of the Marathon Stock or Steel
Stock, as the case may be, on the Section 11(a)(ii) Trigger Date and
the value of any Common Stock Equivalent shall be deemed to equal the
Current Market Price per share of the Marathon Stock or Steel Stock,
as the case may be, on such date.
(b) In case the Company shall fix a record date for the
issuance of rights, options or warrants to all holders of Preferred Stock
entitling them to subscribe for or purchase (for a period expiring within
forty-five (45) calendar days after such record date) Preferred Stock (or
shares having the same rights, privileges and preferences as the shares of
Preferred Stock ("Equivalent Preferred Stock")) or securities convertible
into Preferred Stock or Equivalent Preferred Stock at a price per share of
Preferred Stock or per share of Equivalent Preferred Stock (or having a
conversion price per share, if a security convertible into Preferred Stock
or Equivalent Preferred Stock) less than the Current Market Price per share
of Preferred Stock on such record date, the Purchase Price to be in effect
after such record date shall be determined by multiplying the Purchase
Price in effect immediately prior to such record date by a fraction, the
numerator of which shall be the number of shares of Preferred Stock
outstanding on such record date, plus the number of shares of Preferred
Stock which the aggregate offering price of the total number of shares of
Preferred Stock and/or Equivalent Preferred Stock so to be offered (and/or
the aggregate initial conversion price of the convertible securities so to
be offered) would purchase at such current market price, and the
denominator of which shall be the number of shares of Preferred Stock
outstanding on such record date, plus the number of additional shares of
Preferred Stock and/or Equivalent Preferred Stock to be offered for
subscription or purchase (or into which the convertible securities so to be
offered are initially convertible). In case such subscription price may be
paid by delivery of consideration part or all of which may be in a form
other than cash, the value of such consideration shall be as determined in
good faith by the Board of Directors, whose determination shall be
described in a statement filed with the Rights Agent and shall be binding
on the Rights Agent and the holders of the Rights. Shares of Preferred
Stock owned by or held for the account of the Company shall not be deemed
outstanding for the purpose of any such computation. Such adjustment shall
be made successively whenever such a record date is fixed, and in the event
that such rights or warrants are not so issued, the Purchase Price shall be
adjusted to be the Purchase Price which would then be in effect if such
record date had not been fixed.
(c) In case the Company shall fix a record date for a
distribution to all holders of Preferred Stock (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing corporation) of evidences of indebtedness, cash
(other than a regular quarterly cash dividend out of the earnings or
retained earnings of the Company), assets (other than a dividend payable in
Preferred Stock, but including any dividend payable in stock other than
Preferred Stock) or subscription rights or warrants (excluding those
referred to in Section 11(b) hereof), the Purchase Price to be in effect
after such record date shall be determined by multiplying the Purchase
Price in effect immediately prior to such record date by a fraction, the
numerator of which shall be the Current Market Price per share of Preferred
Stock on such record date, less the fair market value (as determined in
good faith by the Board of Directors, whose determination shall be
described in a statement filed with the Rights Agent) of the portion of the
cash, assets or evidences of indebtedness so to be distributed or of such
subscription rights or warrants applicable to a share of Preferred Stock
and the denominator of which shall be such Current Market Price per share
of Preferred Stock. Such adjustments shall be made successively whenever
such a record date is fixed, and in the event that such distribution is not
so made, the Purchase Price shall be adjusted to be the Purchase Price
which would have been in effect if such record date had not been fixed.
(d) (i) For the purpose of any computation hereunder, other
than computations made pursuant to Section 11(a)(iii) hereof, the "Current
Market Price" per share of Marathon Stock or Steel Stock on any date shall
be deemed to be the average of the daily closing prices per share of such
Marathon Stock or Steel Stock, respectively, for the thirty (30)
consecutive Trading Days immediately prior to such date, and for purposes
of computations made pursuant to Section 11(a)(iii) hereof, the Current
Market Price per share of Marathon Stock or Steel Stock, as the case may
be, on any date shall be deemed to be the average of the daily closing
prices per share of such Marathon Stock or Steel Stock, respectively, for
the ten (10) consecutive Trading Days immediately following such date;
provided, however, that in the event that the Current Market Price per
share of the Marathon Stock or Steel Stock is determined during a period
following the announcement by the issuer of such Marathon Stock or Steel
Stock, as the case may be, of (A) a dividend or distribution on such
Marathon Stock or Steel Stock payable in shares of such Marathon Stock or
Steel Stock or securities convertible into shares of such Marathon Stock or
Steel Stock (other than the Rights), or (B) any subdivision, combination or
reclassification of such Marathon Stock or Steel Stock, and the ex-dividend
date for such dividend or distribution, or the record date for such
subdivision, combination or reclassification shall not have occurred prior
to the commencement of the requisite thirty (30) Trading Day period or ten
(10) Trading Day period, as set forth above; then, and in each such case,
the Current Market Price shall be properly adjusted to take into account
ex-dividend trading. The closing price for each day shall be the last sale
price, regular way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the New York Stock
Exchange or, if the shares of Marathon Stock or Steel Stock, as the case
may be, are not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated transaction reporting
system with respect to securities listed on the principal national
securities exchange on which the shares of Marathon Stock or Steel Stock,
as the case may be, are listed or admitted to trading or, if the shares of
Marathon Stock or Steel Stock, as the case may be, are not listed or
admitted to trading on any national securities exchange, the last quoted
price or, if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated Quotation System
("NASDAQ") or such other system then in use, or, if on any such date the
shares of Marathon Stock or Steel Stock, as the case may be, are not quoted
by any such organization, the average of the closing bid and asked prices
as furnished by a professional market maker making a market in the Marathon
Stock or Steel Stock, as the case may be, selected by the Board of
Directors. If on any such date no market maker is making a market in the
Marathon Stock or Steel Stock, as the case may be, the fair value of such
shares on such date as determined in good faith by the Board of Directors
shall be used. The term "Trading Day" shall mean a day on which the
principal national securities exchange on which the shares of Marathon
Stock or Steel Stock, as the case may be, are listed or admitted to trading
is open for the transaction of business or, if the shares of Marathon Stock
or Steel Stock, as the case may be, are not listed or admitted to trading
on any national securities exchange, a Business Day. If the Marathon Stock
or Steel Stock, as the case may be, are not publicly held or not so listed
or traded, Current Market Price per share shall mean the fair value per
share as determined in good faith by the Board of Directors, whose
determination shall be described in a statement filed with the Rights Agent
and shall be conclusive for all purposes.
(ii) For the purpose of any computation hereunder, the
Current Market Price per share of Preferred Stock shall be determined
in the same manner as set forth above for the Voting Stock in clause
(i) of this Section 11(d) (other than the last sentence thereof). If
the Current Market Price per share of Preferred Stock cannot be
determined in the manner provided above or if the Preferred Stock is
not publicly held or listed or traded in a manner described in clause
(i) of this Section 11(d), the Current Market Price per share of
Preferred Stock shall be conclusively deemed to be an amount equal to
100 (as such number may be appropriately adjusted for such events as
stock splits, stock dividends and recapitalizations with respect to
the Voting Stock occurring after the date of this Agreement)
multiplied by an amount equal to the product of (x) the sum of (1) the
Current Market Price per share of the Marathon Stock and (2) the
Current Market Price per share of the Steel Stock multiplied by (y)
0.5. If none of the Marathon Stock, the Steel Stock, or the Preferred
Stock are publicly held or so listed or traded, Current Market Price
per share of the Preferred Stock shall mean the fair value per share
as determined in good faith by the Board of Directors, whose
determination shall be described in a statement filed with the Rights
Agent and shall be conclusive for all purposes. For all purposes of
this Agreement, the Current Market Price of one one-hundredth of a
share of Preferred Stock shall be equal to the Current Market Price of
one share of Preferred Stock divided by 100.
(e) Anything herein to the contrary notwithstanding, no
adjustment in the Purchase Price shall be required unless such adjustment
would require an increase or decrease of at least one percent (1%) in the
Purchase Price; provided, however, that any adjustments which by reason of
this Section 11(e) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under
this Section 11 shall be made to the nearest cent or to the nearest ten-
thousandth of a share of Marathon Stock or Steel Stock, or other share or
one-millionth of a share of Preferred Stock, as the case may be.
Notwithstanding the first sentence of this Section 11(e), any adjustment
required by this Section 11 shall be made no later than the earlier of
(i) three (3) years from the date of the transaction which mandates such
adjustment, or (ii) the Expiration Date.
(f) If as a result of an adjustment made pursuant to
Section 11(a)(ii) or Section 13(a) hereof, the holder of any Right
thereafter exercised shall become entitled to receive any shares of capital
stock other than Preferred Stock, thereafter the number of such other
shares so receivable upon exercise of any Right and the Purchase Price
thereof shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to
the Preferred Stock contained in Sections 11(a), (b), (c), (e), (g), (h),
(i), (j), (k) and (m), and the provisions of Sections 7, 9, 10, 13 and 14
hereof with respect to the Preferred Stock shall apply on like terms to any
such other shares.
(g) All Rights originally issued by the Company subsequent
to any adjustment made to the Purchase Price hereunder shall evidence the
right to purchase, at the adjusted Purchase Price, the number of one one-
hundredths of a share of Preferred Stock purchasable from time to time
hereunder upon exercise of the Rights, all subject to further adjustment as
provided herein.
(h) Unless the Company shall have exercised its election as
provided in Section 11(i), upon each adjustment of the Purchase Price as a
result of the calculations made in Sections 11(b) and (c), each Right
outstanding immediately prior to the making of such adjustment shall
thereafter evidence the right to purchase, at the adjusted Purchase Price,
that number of one one-hundredths of a share of Preferred Stock (calculated
to the nearest one-millionth) obtained by (i) multiplying (x) the number of
one one-hundredths of a share covered by a Right immediately prior to this
adjustment, by (y) the Purchase Price in effect immediately prior to such
adjustment of the Purchase Price, and (ii) dividing the product so obtained
by the Purchase Price in effect immediately after such adjustment of the
Purchase Price.
(i) The Company may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of Rights, in lieu of
any adjustment in the number of one one-hundredths of a share of Preferred
Stock purchasable upon the exercise of a Right. Each of the Rights
outstanding after the adjustment in the number of Rights shall be
exercisable for the number of one one-hundredths of a share of Preferred
Stock for which a Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such adjustment of the
number of Rights shall become that number of Rights (calculated to the
nearest one-ten-thousandth) obtained by dividing the Purchase Price in
effect immediately prior to adjustment of the Purchase Price by the
Purchase Price in effect immediately after adjustment of the Purchase
Price. The Company shall make a public announcement of its election to
adjust the number of Rights, indicating the record date for the adjustment,
and, if known at the time, the amount of the adjustment to be made. This
record date may be the date on which the Purchase Price is adjusted or any
day thereafter, but, if the Rights Certificates have been issued, shall be
at least ten (10) days later than the date of the public announcement. If
Rights Certificates have been issued, upon each adjustment of the number of
Rights pursuant to this Section 11(i), the Company shall, as promptly as
practicable, cause to be distributed to holders of record of Rights
Certificates on such record date Rights Certificates evidencing, subject to
Section 14 hereof, the additional Rights to which such holders shall be
entitled as a result of such adjustment, or, at the option of the Company,
shall cause to be distributed to such holders of record in substitution and
replacement for the Rights Certificates held by such holders prior to the
date of adjustment, and upon surrender thereof, if required by the Company,
new Rights Certificates evidencing all the Rights to which such holders
shall be entitled after such adjustment. Rights Certificates so to be
distributed shall be issued, executed and countersigned in the manner
provided for herein (and may bear, at the option of the Company, the
adjusted Purchase Price) and shall be registered in the names of the
holders of record of Rights Certificates on the record date specified in
the public announcement.
(j) Irrespective of any adjustment or change in the
Purchase Price or the number of one one-hundredths of a share of Preferred
Stock issuable upon the exercise of the Rights, the Rights Certificates
theretofore and thereafter issued may continue to express the Purchase
Price per one one-hundredths of a share and the number of one one-
hundredths of a share which were expressed in the initial Rights
Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below the then stated value, if any, of the
number of one one-hundredths of a share of Preferred Stock issuable upon
exercise of the Rights, the Company shall take any corporate action which
may, in the opinion of its counsel, be necessary in order that the Company
may validly and legally issue fully paid and nonassessable such number of
one one-hundredths of a share of Preferred Stock at such adjusted Purchase
Price.
(l) In any case in which this Section 11 shall require that
an adjustment in the Purchase Price be made effective as of a record date
for a specified event, the Company may elect to defer (with prompt notice
thereof to the Rights Agent) until the occurrence of such event the
issuance to the holder of any Right exercised after such record date the
number of one one-hundredths of a share of Preferred Stock and other
capital stock or securities of the Company, if any, issuable upon such
exercise over and above the number of one one-hundredths of a share of
Preferred Stock and other capital stock or securities of the Company, if
any, issuable upon such exercise on the basis of the Purchase Price in
effect prior to such adjustment; provided, however, that the Company shall
deliver to such holder a due bill or other appropriate instrument
evidencing such holder's right to receive such additional shares
(fractional or otherwise) or securities upon the occurrence of the event
requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such reductions in
the Purchase Price, in addition to those adjustments expressly required by
this Section 11, as and to the extent that in their good faith judgment the
Board of Directors shall determine to be advisable in order that any (i)
consolidation or subdivision of the Preferred Stock, (ii) issuance wholly
for cash of any shares of Preferred Stock at less than the Current Market
Price, (iii) issuance wholly for cash of shares of Preferred Stock or
securities which by their terms are convertible into or exchangeable for
shares of Preferred Stock, (iv) stock dividends or (v) issuance of rights,
options or warrants referred to in this Section 11, hereafter made by the
Company to holders of its Preferred Stock shall not be taxable to such
stockholders.
(n) The Company covenants and agrees that it shall not, at
any time after the Distribution Date, (i) consolidate with any other Person
(other than a Subsidiary of the Company in a transaction which complies
with Section 11(o) hereof), (ii) merge with or into any other Person (other
than a Subsidiary of the Company in a transaction which complies with
Section 11(o) hereof), or (iii) sell or transfer (or permit any Subsidiary
to sell or transfer), in one transaction, or a series of related
transactions, assets, earning power or cash flow aggregating more than 50%
of the assets, earning power or cash flow of the Company and its
Subsidiaries (taken as a whole) to any other Person or Persons (other than
the Company and/or any of its Subsidiaries in one or more transactions each
of which complies with Section 11(o) hereof), if (x) at the time of or
immediately after such consolidation, merger or sale there are any rights,
warrants or other instruments or securities outstanding or agreements in
effect which would substantially diminish or otherwise eliminate the
benefits intended to be afforded by the Rights or (y) prior to,
simultaneously with or immediately after such consolidation, merger or
sale, the shareholders of the Person who constitutes, or would constitute,
the "Principal Party" for purposes of Section 13(a) hereof shall have
received a distribution of Rights previously owned by such Person or any of
its Affiliates and Associates.
(o) The Company covenants and agrees that, after the
Distribution Date, it will not, except as permitted by Section 23 or
Section 26 hereof, take (or permit any Subsidiary to take) any action if at
the time such action is taken it is reasonably foreseeable that such action
will diminish substantially or otherwise eliminate the benefits intended to
be afforded by the Rights.
(p) Anything in this Agreement to the contrary
notwithstanding, in the event that the Company shall at any time after the
Rights Dividend Declaration Date and prior to the Distribution Date (i)
declare a dividend on the outstanding shares of any class of Voting Stock
payable in shares of any class of Voting Stock, (ii) subdivide the
outstanding shares of any class of Voting Stock, or (iii) combine the
outstanding shares of any class of Voting Stock into a smaller number of
shares, the number of Rights associated with each share of such class of
Voting Stock then outstanding, or issued or delivered thereafter but prior
to the Distribution Date, shall be proportionately adjusted so that the
number of Rights thereafter associated with each share of such class of
Voting Stock following any such event shall equal the result obtained by
multiplying the number of Rights associated with each share of such class
of Voting Stock immediately prior to such event by a fraction the numerator
of which shall be the total number of shares of such class of Voting Stock
outstanding immediately prior to the occurrence of the event and the
denominator of which shall be the total number of shares of such class of
Voting Stock outstanding immediately following the occurrence of such
event.
Section 12. Certificate of Adjusted Purchase Price or Number
of Shares. Whenever an adjustment is made as provided in Section 11 and
Section 13 hereof, the Company shall (a) promptly prepare a certificate
setting forth such adjustment and a brief statement of the facts accounting
for such adjustment, (b) promptly file with the Rights Agent, and with each
transfer agent for the Preferred Stock, the Marathon Stock and the Steel
Stock, a copy of such certificate, and (c) mail, or cause to be mailed, a
brief summary thereof to each holder of a Rights Certificate in accordance
with Section 25 hereof. The Rights Agent shall be fully protected in
relying on any such certificate and on any adjustment therein contained.
Section 13. Consolidation, Merger or Sale or Transfer of
Assets or Earning Power.
(a) In the event that, following the Stock Acquisition
Date, directly or indirectly, (x) the Company shall consolidate with, or
merge with and into, any other Person (other than a Subsidiary of the
Company in a transaction which complies with Section 11(o) hereof), and the
Company shall not be the continuing or surviving corporation of such
consolidation or merger, (y) any Person (other than a Subsidiary of the
Company in a transaction which complies with Section 11(o) hereof) shall
consolidate with, or merge with or into, the Company, and the Company shall
be the continuing or surviving corporation of such consolidation or merger
and, in connection with such consolidation or merger, all or part of the
outstanding shares of Voting Stock shall be changed into or exchanged for
stock or other securities of any other Person or cash or any other
property, or (z) the Company shall sell or otherwise transfer (or one or
more of its Subsidiaries shall sell or otherwise transfer), in one
transaction or a series of related transactions, assets, earning power or
cash flow aggregating more than 50% of the assets, earning power or cash
flow of the Company and its Subsidiaries (taken as a whole) to any Person
or Persons (other than the Company or any Subsidiary of the Company in one
or more transactions each of which complies with Section 11(o) hereof),
then, and in each such case (except as may be contemplated by Section 13(d)
hereof), proper provision shall be made so that: (i) each holder of a
Right, except as provided in Section 7(e) hereof, shall thereafter have the
right to receive, upon the exercise thereof at the then current Purchase
Price in accordance with the terms of this Agreement, such number of
validly authorized and issued, fully paid, non-assessable and freely
tradeable shares of Common Stock of the Principal Party (as such term is
hereinafter defined), not subject to any liens, encumbrances, rights of
first refusal or other adverse claims, as shall be equal to the result
obtained by (1) multiplying the then current Purchase Price by the number
of one one-hundredths of a share of Preferred Stock for which a Right is
exercisable immediately prior to the first occurrence of a Section 13 Event
(or, if a Section 11(a)(ii) Event has occurred prior to the first
occurrence of a Section 13 Event, multiplying the number of such one one-
hundredths of a share for which a Right was exercisable immediately prior
to the first occurrence of a Section 11(a)(ii) Event by the Purchase Price
in effect immediately prior to such first occurrence), and dividing that
product (which, following the first occurrence of a Section 13 Event, shall
be referred to as the "Purchase Price" for each Right and for all purposes
of this Agreement) by (2) 50% of the Current Market Price per share of the
Common Stock of such Principal Party on the date of consummation of such
Section 13 Event; (ii) such Principal Party shall thereafter be liable for,
and shall assume, by virtue of such Section 13 Event, all the obligations
and duties of the Company pursuant to this Agreement; (iii) the term
"Company" shall thereafter be deemed to refer to such Principal Party, it
being specifically intended that the provisions of Section 11 hereof shall
apply only to such Principal Party following the first occurrence of a
Section 13 Event; (iv) such Principal Party shall take such steps
(including, but not limited to, the reservation of a sufficient number of
shares of its Common Stock) in connection with the consummation of any such
transaction as may be necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in relation to
its shares of Common Stock thereafter deliverable upon the exercise of the
Rights; and (v) the provisions of Section 11(a)(ii) hereof shall be of no
effect following the first occurrence of any Section 13 Event.
(b) "Principal Party" shall mean
(i) in the case of any transaction described in clause
(x) or (y) of the first sentence of Section 13(a), the Person that is
the issuer of any securities into which shares of Voting Stock are
converted in such merger or consolidation, and if no securities are so
issued, the Person that is the other party to such merger or
consolidation; and
(ii) in the case of any transaction described in clause
(z) of the first sentence of Section 13(a), the Person that is the
party receiving the greatest portion of the assets or earning power
transferred pursuant to such transaction or transactions;
provided, however, that in any such case, (1) if the Common Stock of such
Person is not at such time and has not been continuously over the preceding
twelve (12) month period registered under Section 12 of the Exchange Act,
and such Person is a direct or indirect Subsidiary of another Person the
Common Stock of which is and has been so registered, "Principal Party"
shall refer to such other Person; and (2) in case such Person is a
Subsidiary, directly or indirectly, of more than one Person, the Common
Stocks of two or more of which are and have been so registered, "Principal
Party" shall refer to whichever of such Persons is the issuer of the Common
Stock having the greatest aggregate market value.
(c) The Company shall not consummate any such
consolidation, merger, sale or transfer unless the Principal Party shall
have a sufficient number of authorized shares of its Common Stock which
have not been issued or reserved for issuance to permit the exercise in
full of the Rights in accordance with this Section 13 and unless prior
thereto the Company and such Principal Party shall have executed and
delivered to the Rights Agent a supplemental agreement providing for the
terms set forth in paragraphs (a) and (b) of this Section 13 and further
providing that, as soon as practicable after the date of any consolidation,
merger or sale of assets mentioned in paragraph (a) of this Section 13, the
Principal Party will
(i) prepare and file a registration statement under
the Act, with respect to the Rights and the securities purchasable
upon exercise of the Rights on an appropriate form, and will use its
best efforts to cause such registration statement to (A) become
effective as soon as practicable after such filing and (B) remain
effective (with a prospectus at all times meeting the requirements of
the Act) until the Expiration Date;
(ii) take all such other action as may be necessary to
enable the Principal Party to issue the securities purchasable upon
exercise of the Rights, including, but not limited to, the
registration or qualification of such securities under all requisite
securities laws of jurisdictions of the various states and the listing
of such securities on such exchanges and trading markets as may be
necessary or appropriate; and
(iii) deliver to holders of the Rights historical
financial statements for the Principal Party and each of its
Affiliates which comply in all respects with the requirements for
registration on Form 10 under the Exchange Act.
The provisions of this Section 13 shall similarly apply to successive
mergers or consolidations or sales or other transfers. In the event that a
Section 13 Event shall occur at any time after the occurrence of a Section
11(a)(ii) Event, the Rights which have not theretofore been exercised shall
thereafter become exercisable in the manner described in Section 13(a).
(d) Notwithstanding anything in this Agreement to the
contrary, Section 13 shall not be applicable to a transaction described in
subparagraphs (x) and (y) of Section 13(a) hereof if (i) such transaction
is consummated with a Person or Persons who acquired shares of Voting Stock
pursuant to a Qualifying Offer (or a wholly owned subsidiary of any such
Person or Persons), (ii) the price per share of Marathon Stock and Steel
Stock offered in such transaction is not less than the price per share of
Marathon Stock and Steel Stock, respectively, paid to all holders of shares
of Marathon Stock and Steel Stock whose shares were purchased pursuant to
such Qualifying Offer and (iii) the form of consideration being offered to
the remaining holders of shares of Voting Stock pursuant to such
transaction is cash. Upon consummation of any such transaction
contemplated by this Section 13(d), all Rights hereunder shall expire.
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of
Rights, except prior to the Distribution Date as provided in Section 11(p)
hereof, or to distribute Rights Certificates which evidence fractional
Rights. In lieu of such fractional Rights, there shall be paid to the
registered holders of the Rights Certificates with regard to which such
fractional Rights would otherwise be issuable, an amount in cash equal to
the same fraction of the current market value of a whole Right. For
purposes of this Section 14(a), the current market value of a whole Right
shall be the closing price of the Rights for the Trading Day immediately
prior to the date on which such fractional Rights would have been otherwise
issuable. The closing price of the Rights for any day shall be the last
sale price, regular way, or, in case no such sale takes place on such day,
the average of the closing bid and asked prices, regular way, in either
case as reported in the principal consolidated transaction reporting system
with respect to securities listed or admitted to trading on the New York
Stock Exchange or, if the Rights are not listed or admitted to trading on
the New York Stock Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities listed on the
principal national securities exchange on which the Rights are listed or
admitted to trading, or if the Rights are not listed or admitted to trading
on any national securities exchange, the last quoted price or, if not so
quoted, the average of the high bid and low asked prices in the over-the-
counter market, as reported by NASDAQ or such other system then in use or,
if on any such date the Rights are not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a professional
market maker making a market in the Rights selected by the Board of
Directors. If on any such date no such market maker is making a market in
the Rights the fair value of the Rights on such date as determined in good
faith by the Board of Directors shall be used.
(b) The Company shall not be required to issue fractions of
shares of Preferred Stock (other than fractions which are integral
multiples of one one-hundredth of a share of Preferred Stock) upon exercise
of the Rights or to distribute certificates which evidence fractional
shares of Preferred Stock (other than fractions which are integral
multiples of one one-hundredth of a share of Preferred Stock). In lieu of
fractional shares of Preferred Stock that are not integral multiples of one
one-hundredth of a share of Preferred Stock, the Company may pay to the
registered holders of Rights Certificates at the time such Rights are
exercised as herein provided an amount in cash equal to the same fraction
of the current market value of one one-hundredth of a share of Preferred
Stock. For purposes of this Section 14(b), the current market value of one
one-hundredth of a share of Preferred Stock shall be one one-hundredth of
the closing price of a share of Preferred Stock (as determined pursuant to
Section 11(d)(ii) hereof) for the Trading Day immediately prior to the date
of such exercise.
(c) Following the occurrence of a Triggering Event, the
Company shall not be required to issue fractions of shares of Voting Stock
upon exercise of the Rights or to distribute certificates which evidence
fractional shares of Voting Stock. In lieu of fractional shares of Voting
Stock, the Company may pay to the registered holders of Rights Certificates
at the time such Rights are exercised as herein provided an amount in cash
equal to the same fraction of the current market value of one (1) share of
Marathon Stock or one (1) share of Steel Stock, as the case may be. For
purposes of this Section 14(c), the Current Market Value of one share of
Marathon Stock or Steel Stock, as the case may be, shall be the closing
price of one share of such Marathon Stock or Steel Stock for the Trading
Day immediately prior to the date of such exercise.
(d) The holder of a Right by the acceptance of the Rights
expressly waives his right to receive any fractional Rights or any
fractional shares upon exercise of a Right, except as permitted by this
Section 14.
Section 15. Rights of Action. All rights of action in respect
of this Agreement are vested in the respective registered holders of the
Rights Certificates (and, prior to the Distribution Date, the registered
holders of the Voting Stock); and any registered holder of any Rights
Certificate (or, prior to the Distribution Date, of the Voting Stock),
without the consent of the Rights Agent or of the holder of any other
Rights Certificate (or, prior to the Distribution Date, of the Voting
Stock), may, in his own behalf and for his own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
to enforce, or otherwise act in respect of, his right to exercise the
Rights evidenced by such Rights Certificate in the manner provided in such
Rights Certificate and in this Agreement. Without limiting the foregoing
or any remedies available to the holders of Rights, it is specifically
acknowledged that the holders of Rights would not have an adequate remedy
at law for any breach of this Agreement and shall be entitled to specific
performance of the obligations hereunder and injunctive relief against
actual or threatened violations of the obligations hereunder of any Person
subject to this Agreement.
Section 16. Agreement of Rights Holders. Every holder of a
Right by accepting the same consents and agrees with the Company and the
Rights Agent and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of Voting Stock;
(b) after the Distribution Date, the Rights Certificates
are transferable only on the registry books of the Rights Agent if
surrendered at the office or offices of the Rights Agent designated for
such purposes, duly endorsed or accompanied by a proper instrument of
transfer and with the appropriate forms and certificates fully executed;
(c) subject to Section 6(a) and Section 7(f) hereof, the
Company and the Rights Agent may deem and treat the person in whose name a
Rights Certificate (or, prior to the Distribution Date, the associated
Voting Stock certificate) is registered as the absolute owner thereof and
of the Rights evidenced thereby (notwithstanding any notations of ownership
or writing on the Rights Certificates or the associated Voting Stock
certificate made by anyone other than the Company or the Rights Agent) for
all purposes whatsoever, and neither the Company nor the Rights Agent,
subject to the last sentence of Section 7(e) hereof, shall be required to
be affected by any notice to the contrary; and
(d) notwithstanding anything in this Agreement to the
contrary, neither the Company nor the Rights Agent shall have any liability
to any holder of a Right or other Person as a result of its inability to
perform any of its obligations under this Agreement by reason of any
preliminary or permanent injunction or other order, decree or ruling issued
by a court of competent jurisdiction or by a governmental, regulatory or
administrative agency or commission, or any statute, rule, regulation or
executive order promulgated or enacted by any governmental authority,
prohibiting or otherwise restraining performance of such obligation;
provided, however, the Company must use its best efforts to have any such
order, decree or ruling lifted or otherwise overturned as soon as possible.
Section 17. Rights Certificate Holder Not Deemed a
Stockholder. No holder, as such, of any Rights Certificate shall be
entitled to vote, receive dividends or be deemed for any purpose the holder
of the number of one one-hundredths of a share of Preferred Stock or any
other securities of the Company which may at any time be issuable on the
exercise of the Rights represented thereby, nor shall anything contained
herein or in any Rights Certificate be construed to confer upon the holder
of any Rights Certificate, as such, any of the rights of a stockholder of
the Company or any right to vote for the election of directors or upon any
matter submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of meetings
or other actions affecting stockholders (except as provided in Section 24
hereof), or to receive dividends or subscription rights, or otherwise,
until the Right or Rights evidenced by such Rights Certificate shall have
been exercised in accordance with the provisions hereof.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the Rights Agent
reasonable compensation for all services rendered by it hereunder and, from
time to time, on demand of the Rights Agent, its reasonable expenses and
counsel fees and disbursements and other disbursements incurred in the
administration, execution or amendment of this Agreement and the exercise
and performance of its duties hereunder. The Company also agrees to
indemnify the Rights Agent for, and to hold it harmless against, any loss,
liability, damage, judgment, fine, penalty, claim, demand, settlement, cost
or expense, incurred without negligence, bad faith or willful misconduct
(as finally determined by a court of competent jurisdiction) 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 in the premises.
(b) The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or omitted by it
in connection with its administration of this Agreement in reliance upon
any Rights Certificate or certificate for Voting Stock or for other
securities of the Company, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement, or other paper or document believed by it to be
genuine and to be signed, executed and, where necessary, verified or
acknowledged, by the proper Person or Persons.
(c) Anything in this Agreement to the contrary
notwithstanding, in no event shall the Rights Agent be liable for special,
punitive, indirect, incidental 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 possibility of such loss or damage.
Section 19. Merger or Consolidation or Change of Name of
Rights Agent.
(a) Any Person into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any
Person resulting from any merger or consolidation to which the Rights Agent
or any successor Rights Agent shall be a party, or any Person succeeding to
the shareholder services business of the Rights Agent or any successor
Rights Agent, shall be the successor to the Rights Agent under this
Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto; provided, however, that such
Person would be eligible for appointment as a successor Rights Agent under
the provisions of Section 21 hereof. In case at the time such successor
Rights Agent shall succeed to the agency created by this Agreement, any of
the Rights Certificates shall have been countersigned but not delivered,
any such successor Rights Agent may adopt the countersignature of a
predecessor Rights Agent and deliver such Rights Certificates so
countersigned; and in case at that time any of the Rights Certificates
shall not have been countersigned, any successor Rights Agent may
countersign such Rights Certificates either in the name of the predecessor
or in the name of the successor Rights Agent; and in all such cases such
Rights Certificates shall have the full force provided in the Rights
Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent shall
be changed and at such time any of the Rights Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Rights Certificates so
countersigned; and in case at that time any of the Rights Certificates
shall not have been countersigned, the Rights Agent may countersign such
Rights Certificates either in its prior name or in its changed name; and in
all such cases such Rights Certificates shall have the full force provided
in the Rights Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations imposed by this Agreement upon the
following terms and conditions, by all of which the Company and the holders
of Rights Certificates, by their acceptance thereof, shall be bound.
(a) The Rights Agent may consult with legal counsel (who
may be legal counsel for the Company), and the advice or opinion of such
counsel shall be full and complete authorization and protection to the
Rights Agent, and the Rights Agent shall incur no liability for or in
respect of, any action taken or omitted by it in good faith and in
accordance with such advice or opinion.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent shall deem it necessary or desirable that any
fact or matter (including, without limitation, the identity of any
Acquiring Person and the determination of Current Market Price) be proved
or established by the Company prior to taking 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 the Chairman of the Board, the
President, any Vice President, the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of the Company and delivered to the
Rights Agent; and such certificate shall be full authorization and
protection to the Rights Agent, and the Rights Agent shall incur no
liability for or in respect of, 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 only for its
own negligence, bad faith or willful misconduct (as finally determined by a
court of competent jurisdiction).
(d) The Rights Agent shall not be liable for or by reason
of any of the statements of fact or recitals contained in this Agreement or
in the Rights Certificates or be required to verify the same (except as to
its countersignature on such Rights Certificates), but all such statements
and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility
in respect of the validity of this Agreement or the execution and delivery
hereof (except the due execution hereof by the Rights Agent) or in respect
of the validity or execution of any Rights Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by
the Company of any covenant or condition contained in this Agreement or in
any Rights Certificate; nor shall it be responsible for any adjustment
required under the provisions of Section 11 or Section 13 hereof or
responsible for the manner, method or amount of any such adjustment or the
ascertaining of the existence of facts that would require any such
adjustment (except with respect to the exercise of Rights evidenced by
Rights Certificates after actual notice of any such adjustment); nor shall
it by any act hereunder be deemed to make any representation or warranty as
to the authorization or reservation of any shares of Voting Stock or
Preferred Stock to be issued pursuant to this Agreement or any Rights
Certificate or as to whether any shares of Voting Stock or Preferred Stock
will, when so issued, be validly authorized and issued, fully paid and
nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed, acknowledged
and delivered all such further and other acts, instruments and assurances
as may reasonably be required by the Rights Agent for the carrying out or
performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties hereunder
from the Chairman of the Board, the President, any Vice President, the
Secretary, any Assistant Secretary, the Treasurer or any Assistant
Treasurer of the Company, and to apply to such officers for advice or
instructions in connection with its duties, and 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.
(h) The Rights Agent and any stockholder, affiliate,
director, officer or employee of the Rights Agent may buy, sell or deal in
any of the Rights or other securities of the Company or become pecuniarily
interested in any transaction in which the Company may be interested, or
contract with or lend money to the Company or otherwise act as fully and
freely as though it were not Rights Agent under this Agreement. Nothing
herein shall preclude the Rights Agent from acting in any other capacity
for the Company or for any other Person.
(i) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder either
itself or by or through its attorneys or agents, and the Rights Agent shall
not be answerable or accountable for any act, default, neglect or
misconduct of any such attorneys or agents or for any loss to the Company
or any other Person resulting from any such act, default, neglect or
misconduct; provided, however, reasonable care was exercised in the
selection and continued employment thereof.
(j) No provision of this Agreement shall require the Rights
Agent to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the
exercise of its rights if there shall be reasonable grounds for believing
that repayment of such funds or adequate indemnification against such risk
or liability is not reasonably assured to it.
(k) If, with respect to any Rights Certificate surrendered
to the Rights Agent for exercise or transfer, the certificate attached to
the form of assignment or form of election to purchase, as the case may be,
has either not been completed or indicates an affirmative response to
clause 1 and/or 2 thereof, the Rights Agent shall not take any further
action with respect to such requested exercise of transfer without first
consulting with the Company.
Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under
this Agreement upon thirty (30) days' notice in writing mailed to the
Company, and to each transfer agent of the Marathon Stock, Steel Stock and
Preferred Stock, by registered or certified mail, and to the holders of the
Rights Certificates by first-class mail. The Company may remove the Rights
Agent or any successor Rights Agent upon thirty (30) days' notice in
writing, mailed to the Rights Agent or successor Rights Agent, as the case
may be, and to each transfer agent of the Marathon Stock, Steel Stock and
Preferred Stock, by registered or certified mail, and to the holders of the
Rights Certificates by first-class mail. If the Rights Agent shall resign
or be removed or shall otherwise become incapable of acting, the Company
shall appoint a successor to the Rights Agent. If the Company shall fail
to make such appointment within a period of thirty (30) days after giving
notice of such removal or after it has been notified in writing of such
resignation or incapacity by the resigning or incapacitated Rights Agent or
by the holder of a Rights Certificate (who shall, with such notice, submit
his Rights Certificate for inspection by the Company), then any registered
holder of any Rights Certificate may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any successor
Rights Agent, whether appointed by the Company or by such a court, shall be
(a) a Person organized and doing business under the laws of the United
States or of any state thereof so long as such Person is authorized to do
business in the State of New York and is subject to supervision or
examination by federal or state authority and which has at the time of its
appointment as Rights Agent a combined capital and surplus of at least
$50,000,000 or (b) any affiliate thereof. After appointment, the successor
Rights Agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Rights Agent without
further act or deed; but the predecessor Rights Agent shall deliver and
transfer to the successor Rights Agent any property at the time held by it
hereunder, and execute and deliver any further assurance, conveyance, act
or deed necessary for the purpose. Not later than the effective date of
any such appointment, the Company shall file notice thereof in writing with
the predecessor Rights Agent and each transfer agent of the Marathon Stock,
Steel Stock and the Preferred Stock, and mail a notice thereof in writing
to the registered holders of the Rights Certificates. Failure to give any
notice provided for in this Section 21, however, or any defect therein,
shall not affect the legality or validity of the resignation or removal of
the Rights Agent or the appointment of the successor Rights Agent, as the
case may be.
Section 22. Issuance of New Rights Certificates.
Notwithstanding any of the provisions of this Agreement or of the Rights to
the contrary, the Company may, at its option, issue new Rights Certificates
evidencing Rights in such form as may be approved by its Board of Directors
to reflect any adjustment or change in the Purchase Price and the number or
kind or class of shares or other securities or property purchasable under
the Rights Certificates made in accordance with the provisions of this
Agreement. In addition, in connection with the issuance or sale of shares
of Voting Stock following the Distribution Date and prior to the redemption
or expiration of the Rights, the Company (a) shall, with respect to shares
of Voting Stock so issued or sold pursuant to the exercise of stock options
or under any employee plan or arrangement outstanding, granted or awarded
prior to the Distribution Date, or upon the exercise, conversion or
exchange of securities hereinafter issued by the Company, and (b) may, in
any other case, if deemed necessary or appropriate by the Board of
Directors, issue Rights Certificates representing the appropriate number of
Rights in connection with such issuance or sale; provided, however, that
(i) no such Rights Certificate shall be issued if, and to the extent that,
the Company shall be advised by counsel that such issuance would create a
significant risk of material adverse tax consequences to the Company or the
Person to whom such Rights Certificate would be issued, and (ii) no such
Rights Certificate shall be issued if, and to the extent that, appropriate
adjustment shall otherwise have been made in lieu of the issuance thereof.
Section 23. Redemption and Termination.
(a) The Board of Directors may, at its option, at any time
prior to the earlier of (i) the close of business on the tenth Business Day
following the Stock Acquisition Date (or, if the Stock Acquisition Date
shall have occurred prior to the Record Date, the close of business on the
tenth Business Day following the Record Date), or (ii) the Final Expiration
Date, redeem all but not less than all of the then outstanding Rights at a
redemption price of $.0l per Right, as such amount may be appropriately
adjusted to reflect any stock split, stock dividend or similar transaction
occurring after the date hereof (such redemption price being hereinafter
referred to as the "Redemption Price"). To encourage third parties seeking
to acquire the Company to make a non-coercive offer which will maximize
value for all stockholders, the Board of Directors shall consider, in
determining whether to redeem the Rights in connection with any proposal or
offer, whether such proposal or offer meets the requirements of a
Qualifying Offer, and, if not, in which respects such offer or proposal
fails to meet such requirements. The Company may, at its option, pay the
Redemption Price in cash, shares of Marathon Stock or Steel Stock (based on
the Current Market Price of such shares at the time of redemption) or any
other form of consideration deemed appropriate by the Board of Directors.
Notwithstanding anything contained in this Agreement to the contrary, the
Rights shall not be exercisable after the first occurrence of a Section
11(a)(ii) Event until such time as the Company's right of redemption
hereunder has expired.
(b) Immediately upon the action of the Board of Directors
ordering the redemption of the Rights, evidence of which shall have been
filed with the Rights Agent and without any further action and without any
notice, the right to exercise the Rights will terminate and the only right
thereafter of the holders of Rights shall be to receive the Redemption
Price for each Right so held. Promptly after the action of the Board of
Directors ordering the redemption of the Rights, the Company shall give
notice of such redemption to the Rights Agent and the holders of the then
outstanding Rights by mailing such notice to all such holders at each
holder's last address as it appears upon the registry books of the Rights
Agent or, prior to the Distribution Date, on the registry books of the
Transfer Agent for each of the Marathon Stock and Steel Stock. Any notice
which is mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. Each such notice of
redemption will state the method by which the payment of the Redemption
Price will be made.
Section 24. Notice of Certain Events.
(a) In case the Company shall propose, at any time after
the Distribution Date, (i) to pay any dividend payable in stock of any
class to the holders of Preferred Stock or to make any other distribution
to the holders of Preferred Stock (other than a regular quarterly cash
dividend out of earnings or retained earnings of the Company), or (ii) to
offer to the holders of Preferred Stock rights or warrants to subscribe for
or to purchase any additional shares of Preferred Stock or shares of stock
of any class or any other securities, rights or options, or (iii) to effect
any reclassification of its Preferred Stock (other than a reclassification
involving only the subdivision of outstanding shares of Preferred Stock),
or (iv) to effect any consolidation or merger into or with any other Person
(other than a Subsidiary of the Company in a transaction which complies
with Section 11(o) hereof), or to effect any sale or other transfer (or to
permit one or more of its Subsidiaries to effect any sale or other
transfer), in one transaction or a series of related transactions, of more
than 50% of the assets, earning power or cash flow of the Company and its
Subsidiaries (taken as a whole) to any other Person or Persons (other than
the Company and/or any of its Subsidiaries in one or more transactions each
of which complies with Section 11(o) hereof), or (v) to effect the
liquidation, dissolution or winding up of the Company, then, in each such
case, the Company shall give to each holder of a Rights Certificate, to the
extent feasible and in accordance with Section 25 hereof, a notice of such
proposed action, which shall specify the record date for the purposes of
such stock dividend, distribution of rights or warrants, or the date on
which such reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution, or winding up is to take place and the date of
participation therein by the holders of the shares of Preferred Stock, if
any such date is to be fixed, and such notice shall be so given in the case
of any action covered by clause (i) or (ii) above at least twenty (20) days
prior to the record date for determining holders of the shares of Preferred
Stock for purposes of such action, and in the case of any such other
action, at least twenty (20) days prior to the date of the taking of such
proposed action or the date of participation therein by the holders of the
shares of Preferred Stock, whichever shall be the earlier.
(b) In case any Section 11(a)(ii) Event hereof shall occur,
then, in any such case, (i) the Company shall as soon as practicable
thereafter give to each holder of a Rights Certificate, to the extent
feasible and in accordance with Section 25 hereof, a notice of the
occurrence of such event, which shall specify the event and the
consequences of the event to holders of Rights under Section 11(a)(ii)
hereof, and (ii) all references in the preceding paragraph to Preferred
Stock shall be deemed thereafter to refer to Voting Stock and/or, if
appropriate, other securities.
Section 25. Notices. Notices or demands authorized by this
Agreement to be given or made by the Rights Agent or by the holder of any
Rights Certificate to or on the Company shall be sufficiently given or made
if sent by first-class mail, postage prepaid, addressed (until another
address is filed in writing with the Rights Agent) as follows:
USX Corporation
600 Grant Street
Pittsburgh, Pennsylvania 15219-4776
Attention: Corporate Secretary
Subject to the provisions of Section 21, any notice or demand authorized by
this Agreement to be given or made by the Company or by the holder of any
Rights Certificate to or on the Rights Agent shall be sufficiently given or
made if sent by first-class mail, postage prepaid, addressed (until another
address is filed in writing with the Company) as follows:
ChaseMellon Shareholder Services, L.L.C.
One Mellon Bank Center
500 Grant Street
Room 2122
Pittsburgh, Pennsylvania 15258-0001
Attention: Relationship Manager
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Rights Certificate (or, if
prior to the Distribution Date, to the holder of certificates representing
shares of Voting Stock) shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed to such holder at the address
of such holder as shown on the registry books of the Company.
In the event that the Company is required to make a public announcement or
provide notice to the holders of Rights Certificates pursuant to any
provision of this Agreement, it shall provide such announcement or notice
to the Rights Agent on or prior to the date of such announcement or
provision of notice.
Section 26. Supplements and Amendments. Prior to the
Distribution Date, and subject to the last sentence of this Section 26, the
Company and the Rights Agent shall, if the Company so directs, supplement
or amend any provision of this Agreement without the approval of any
holders of certificates representing shares of Voting Stock. From and
after the Distribution Date, the Company and the Rights Agent shall, if the
Company so directs, supplement or amend this Agreement without the approval
of any holders of Rights Certificates in order (i) to cure any ambiguity,
(ii) to correct or supplement any provision contained herein which may be
defective or inconsistent with any other provisions herein, (iii) to
shorten or lengthen any time period hereunder, or (iv) to change or
supplement the provisions hereunder in any manner which the Company may
deem necessary or desirable and which shall not adversely affect the
interests of the Rights Agent or the holders of Rights Certificates (other
than an Acquiring Person or an Affiliate or Associate of an Acquiring
Person); provided, this Agreement may not be supplemented or amended to
lengthen, pursuant to clause (iii) of this sentence, (A) a time period
relating to when the Rights may be redeemed at such time as the Rights are
not then redeemable, or (B) any other time period, unless such lengthening
is for the purpose of protecting, enhancing or clarifying the rights of,
and/or the benefits to, the holders of Rights. Upon the delivery of a
certificate from an appropriate officer of the Company which states that
the proposed supplement or amendment is in compliance with the terms of
this Section 26 and provided such supplement or amendment does not
adversely affect the Rights Agent's duties, liabilities or obligations
hereunder, the Rights Agent shall execute such supplement or amendment.
Prior to the Distribution Date, the interests of the holders of Rights
shall be deemed coincident with the interests of the holders of Voting
Stock. Notwithstanding anything herein to the contrary, this Agreement may
not be amended at a time when the Rights are not redeemable.
Section 27. 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 28. Determinations and Actions by the Board of
Directors, etc. For all purposes of this Agreement, any calculation of the
Voting Power or the number of shares of Voting Stock outstanding at any
particular time, including for purposes of determining the particular
percentage of Voting Power or such outstanding shares of Voting Stock of
which any Person is the Beneficial Owner, shall be made in accordance with
the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and
Regulations under the Exchange Act. The Board of Directors shall have the
exclusive power and authority to administer this Agreement and to exercise
all rights and powers specifically granted to the Board of Directors or to
the Company, or as may be necessary or advisable in the administration of
this Agreement, including, without limitation, the right and power to (i)
interpret the provisions of this Agreement, (ii) make all determinations
deemed necessary or advisable for the administration of this Agreement
(including a determination to redeem or not redeem the Rights or to amend
the Agreement) and (iii) calculate from time to time the Voting Power and
the relative voting power of the Marathon Stock and the Steel Stock, in
accordance with the Company's Restated Certificate of Incorporation. All
such actions, calculations, interpretations and determinations (including,
for purposes of clause (y) below, all omissions with respect to the
foregoing) which are done or made by the Board of Directors in good faith,
shall (x) be final, conclusive and binding on the Company, the Rights
Agent, the holders of the Rights and all other Persons, and (y) not subject
the Board of Directors or any directors on the Board of Directors to any
liability to the holders of the Rights. Nothing contained in this
Agreement shall be deemed to be in derogation of the obligation of the
Board of Directors to exercise its fiduciary duty or shall be construed to
suggest or imply that the Board of Directors shall not be entitled to
reject any Qualifying Offer, or to recommend that holders of shares of
Voting Stock reject any Qualifying Offer, or to take any other action
(including, without limitation, commencing, prosecuting, defending or
settling any litigation, recommending that stockholders tender into any
other offer, taking any action permitted under any applicable state laws or
proposing or engaging, at any time, in any acquisition, disposition or
other transfer of any securities of the Company, any merger or
consolidation involving the Company, any sale or other transfer of assets
of the Company, any recapitalization, liquidation, dissolution or winding
up of the Company, or any other business combination or other transaction)
with respect to any Qualifying Offer that the Board of Directors believes
is necessary or appropriate in the exercise of such fiduciary duty.
Section 29. Exchange.
(a) The Board of Directors may, at its option, at any time
after any Person becomes an Acquiring Person, exchange all or part of the
then outstanding and exercisable Marathon Rights and Steel Rights (which
shall not include Rights that have become void pursuant to the provision of
Section 7(e) hereof), as the case may be, for shares of Marathon Stock or
Steel Stock, respectively, at an exchange ratio of one share of Marathon
Stock per Marathon Right and one share of Steel Stock per Steel Right, and
appropriately adjusted to reflect any stock split, stock dividend or
similar transaction occurring after the date hereof (such exchange ratio
being hereinafter referred to as the "Exchange Ratio"). Notwithstanding
the foregoing, the Board of Directors shall not be empowered to effect such
exchange at any time after any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or any
such Subsidiary, or any entity holding shares of Voting Stock for or
pursuant to the terms of any such plan), together with all Affiliates and
Associates of such Person, becomes the Beneficial Owner of shares of Voting
Stock representing 50% or more of the Voting Power of the Company.
(b) Immediately upon the action of the Board of Directors
ordering the exchange of any Rights pursuant to subsection (a) of this
Section 29 and without any further action and without any notice, the right
to exercise such Rights shall terminate and the only right thereafter of a
holder of such Marathon Rights and Steel Rights, as the case may be, shall
be to receive that number of shares of Marathon Stock and Steel Stock,
respectively, equal to the number of such Rights held by such holder
multiplied by the Exchange Ratio. The Company shall promptly give public
notice of any such exchange; provided, however, that the failure to give,
or any defect in, such notice shall not affect the validity of such
exchange. The Company promptly shall mail a notice of any such exchange to
all of the holders of such Rights at their last addresses as they appear
upon the registry books of the Rights Agent. Any notice which is mailed in
the manner herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of exchange will state the method by
which the exchange of the shares of Voting Stock for Rights will be
effected and, in the event of any partial exchange, the number of Rights
which will be exchanged. Any partial exchange shall be affected pro rata
based on the number of Rights (other than Rights which have become void
pursuant to the provisions of Section 7(e) hereof) held by each holder of
Rights.
(c) In any exchange pursuant to this Section 29, the
Company, at its option, may substitute Preferred Stock (or Equivalent
Preferred Stock, as such term is defined in Section 11(b) hereof) for
shares of Voting Stock exchangeable for Rights, at the initial rate of one
one-hundredths of a share of Preferred Stock (or Equivalent Preferred
Stock) for each share of Voting Stock, as appropriately adjusted to reflect
stock splits, stock dividends or other similar transactions after the date
hereof.
(d) In the event that there shall not be sufficient shares
of Voting Stock issued but not outstanding or authorized but unissued to
permit any exchange of Rights as contemplated in accordance with this
Section 29, the Company shall take all such action as may be necessary to
authorize additional shares of Marathon Stock or Steel Stock, as the case
may be, for issuance upon exchange of the Rights.
(e) The Company shall not be required to issue fractions of
shares of Voting Stock or to distribute certificates which evidence
fractional shares of Voting Stock. In lieu of such fractional shares of
Voting Stock, there shall be paid to the registered holders of the Rights
Certificates with regard to which such fractional shares of Voting Stock
would otherwise be issuable, an amount in cash equal to the same fraction
of the current market value of a whole share of Marathon Stock or Steel
Stock, as the case may be. For the purposes of this subsection (e), the
current market value of a whole share of Marathon Stock or Steel Stock
shall be the closing price of such share of Marathon Stock or Steel Stock
(as determined pursuant to Section 11(d)(i) hereof) for the Trading Day
immediately prior to the date of exchange pursuant to this Section 29.
Section 30. Benefits of this Agreement. Nothing in this
Agreement shall be construed to give to any Person other than the Company,
the Rights Agent and the registered holders of the Rights Certificates
(and, prior to the Distribution Date, registered holders of the Voting
Stock) any legal or equitable right, remedy or claim under this Agreement;
but this Agreement shall be for the sole and exclusive benefit of the
Company, the Rights Agent and the registered holders of the Rights
Certificates (and, prior to the Distribution Date, registered holders of
the Voting Stock).
Section 31. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction
or other authority to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Agreement shall
remain in full force and effect and shall in no way be affected, impaired
or invalidated; provided, however, that notwithstanding anything in this
Agreement to the contrary, if any such term, provision, covenant or
restriction is held by such court or authority to be invalid, void or
unenforceable and the Board of Directors determines in its good faith
judgment that severing the invalid language from this Agreement would
adversely affect the purpose or effect of this Agreement, the right of
redemption set forth in Section 23 hereof (if it has expired) shall be
reinstated and shall not expire until the close of business on the tenth
day following the date of such determination by the Board of Directors and
the Company shall promptly notify the Rights Agent of such reinstatement.
Section 32. Governing Law. This Agreement, each Right and
each Rights Certificate issued hereunder shall be deemed to be a contract
made under the laws of the State of Delaware and for all purposes shall be
governed by and construed in accordance with the laws of such State
applicable to contracts made and to be performed entirely within such
State; provided, however, that all provisions regarding the rights, duties
and obligations of the Rights Agent shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts
made and to be performed entirely within such State.
Section 33. Counterparts. This Agreement may be executed in
any number of counterparts and each of such counterparts shall for all
purposes be deemed to be an original, and all such counterparts shall
together constitute 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.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
USX CORPORATION
By: /s/ Kenneth L. Matheny
_______________________________
Name: Kenneth L. Matheny
Title: Vice President & Comptroller
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
By: /s/ Marilyn Spisak
_______________________________
Name: Marilyn Spisak
Title: Vice President
Exhibit A
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED STOCK
On September 28, 1999, the Board of Directors of USX Corporation (the
"Company") adopted a Stockholder Rights Plan and declared a dividend
distribution of (i) one USX-U.S. Steel Group Right (a "Steel Right") for
each outstanding share of USX-U.S. Steel Group Common Stock ("Steel Stock")
and (ii) one USX-Marathon Group Right (a "Marathon Right" and, together
with the Steel Rights, the "Rights") for each share of USX-Marathon Group
Common Stock ("Marathon Stock" and, together with the Steel Stock, the
"Voting Stock") to stockholders of record at the close of business on
October 9, 1999 (the "Record Date"). Each Right entitles the registered
holder to purchase from the Company a unit consisting of one one-hundredth
of a share (a "Unit") of Series A Junior Preferred Stock, no par value (the
"Preferred Stock"), at a Purchase Price of $110 in cash per Unit, subject
to adjustment. The description and terms of the Rights are set forth in a
Rights Agreement (the "Rights Agreement") between the Company and
ChaseMellon Shareholder Services, L.L.C., a New Jersey limited liability
company, as Rights Agent.
Initially, the Marathon Rights and the Steel Rights will be attached
to all certificates representing shares of Marathon Stock and Steel Stock,
respectively, then outstanding, and no separate Rights Certificates will be
distributed. Subject to certain exceptions specified in the Rights
Agreement, the Marathon Rights and the Steel Rights will separate from the
certificates representing shares of Marathon Stock and Steel Stock,
respectively, and a Distribution Date will occur upon the earlier of (i) 10
business days following a public announcement that a person or group of
affiliated or associated persons (an "Acquiring Person") has acquired, or
obtained the right to acquire, beneficial ownership of Voting Stock
representing 15% or more of the outstanding Voting Power of the Company
(the "Stock Acquisition Date") other than as a result of the Company's
calculation from time to time of the relative voting rights of the Marathon
Stock and Steel Stock, repurchases of stock by the Company or certain
inadvertent actions by institutional or certain other stockholders, or (ii)
10 business days (or such later date as the Board of Directors shall
determine) following the commencement of a tender offer or exchange offer
that would result in a person or group becoming an Acquiring Person. Until
the Distribution Date, (i) the Marathon Rights and the Steel Rights will be
evidenced by the certificates representing shares of Marathon Stock and
Steel Stock, respectively, and will be transferred with and only with such
certificates, (ii) new Marathon Stock and Steel Stock certificates issued
after the Record Date will contain a notation incorporating the Rights
Agreement by reference and (iii) the surrender for transfer of any
certificates for Marathon Stock and Steel Stock outstanding will also
constitute the transfer of the Marathon Rights and Steel Rights,
respectively, associated with the Marathon Stock and Steel Stock
represented by such certificate.
The Rights are not exercisable until the Distribution Date and will
expire at the close of business on October 9, 2009, unless such date is
extended or the Rights are earlier redeemed or exchanged by the Company as
described below. Pursuant to the Rights Agreement, the Company reserves
the right to require prior to the occurrence of a Triggering Event (as
defined below) that, upon any exercise of Rights, a number of Rights be
exercised so that only whole shares (or fractions which are integral
multiples of one one-hundredth of a share) of Preferred Stock will be
issued.
As soon as practicable after the Distribution Date, Certificates for
Marathon Rights and Steel Rights will be mailed to holders of record of the
Marathon Stock and Steel Stock, respectively, as of the close of business
on the Distribution Date and, thereafter, the separate Certificates for
Marathon Rights and Steel Rights alone will represent the Marathon Rights
and Steel Rights, respectively. Except as otherwise determined by the
Board of Directors, Rights will be issued in connection with all shares of
Voting Stock issued by the Company, including shares of Voting Stock issued
upon the exercise of employee stock options or the conversion of
convertible securities issued after October 9, 1999 but prior to the
Distribution Date.
In the event that a Person becomes an Acquiring Person, except
pursuant to a Qualifying Offer (as defined below), each holder of a
Marathon Right or Steel Right (other than the Acquiring Person and certain
related parties) will thereafter have the right to receive, upon exercise,
Marathon Stock or Steel Stock, respectively (or, in certain circumstances,
cash, property or other securities of the Company) having a value equal to
two times the exercise price of the Marathon Right or Steel Right.
However, Rights are not exercisable until such time as the Rights are no
longer redeemable by the Company, as set forth below. A "Qualifying Offer"
is defined as an all-cash tender offer for all outstanding Marathon Stock
and Steel Stock that is fully financed, remains open for a period of at
least 45 Business Days, results in the offeror owning shares of Voting
Stock representing a majority of the Voting Power as of the day immediately
prior to the date of announcement of such offer, assures a prompt second-
step acquisition of shares not purchased in the initial offer at the same
price as the initial offer and meets certain other requirements.
For example, at an exercise price of $110 per Right, each Marathon
Right or Steel Right not owned by an Acquiring Person (or by certain
related parties) following an event set forth in the preceding paragraph
would entitle its holder to purchase $220 worth of Marathon Stock or Steel
Stock, respectively (or other consideration, as noted above) for $110.
Assuming that the Marathon Stock or Steel Stock, respectively, as the case
may be, had a per share value of $55 at such time, the holder of each valid
Marathon Right or Steel Right would be entitled to purchase four shares of
Marathon Stock or Steel Stock, respectively, for $110.
In the event that, at any time following the Stock Acquisition Date,
(i) the Company engages in a merger or other business combination
transaction in which the Company is not the surviving corporation, (ii) the
Company engages in a merger or other business transaction in which the
Company is the surviving corporation and the Voting Stock is changed or
exchanged, or (iii) 50% or more of the Company's assets or earning power is
sold or transferred, each holder of a Right (other than Rights that
previously have been voided as set forth above) shall thereafter have the
right to receive, upon exercise, Common Stock of the acquiring company
having a value equal to two times the exercise price of the Right. The
events set forth in this paragraph and in the second preceding paragraph
are referred to as the "Triggering Events."
The Purchase Price payable, and the number of Units of Preferred Stock
or other securities or property issuable, upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution (i) in the
event of a stock dividend on, or a subdivision, combination or
reclassification of, the Preferred Stock, (ii) if holders of the Preferred
Stock are granted certain rights or warrants to subscribe for Preferred
Stock or convertible securities at less than the Current Market Price of
the Preferred Stock, or (iii) upon the distribution to holders of the
Preferred Stock of evidences of indebtedness or assets (excluding regular
quarterly cash dividends) or of subscription rights or warrants (other than
those referred to above).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments amount to at least 1% of the Purchase
Price. No fractional Units will be issued and, in lieu thereof, an
adjustment in cash will be made based on the market price of the Preferred
Stock on the last trading date prior to the date of exercise.
Up to and including the tenth business day after the Stock Acquisition
Date (subject to extension), the Company may redeem the Rights in whole,
but not in part, at a price of $.01 per Right payable in stock or cash or
any other form of consideration deemed appropriate by the Board of
Directors (the "Redemption Price"). Immediately upon the action of the
Board of Directors ordering redemption of the Rights, the Rights will
terminate and the only right of the holders of Rights will be to receive
the Redemption Price.
The Board of Directors may, at its option, at any time after any
Person becomes an Acquiring Person, exchange all or part of the outstanding
and exercisable Marathon Rights and Steel Rights (other than Rights held by
the Acquiring Person and certain related parties) for shares of Marathon
Stock or Steel Stock, respectively, at an exchange ratio of one share of
Marathon Stock or Steel Stock per Marathon Right or Steel Right,
respectively (subject to certain anti-dilution adjustments). However, the
Board of Directors may not effect such an exchange at any time any Person
or group owns Voting Stock representing 50% or more of the Voting Power of
the Company then outstanding. Immediately after the Board of Directors
orders such an exchange, the right to exercise the Marathon Rights and
Steel Rights shall terminate and the holders of Marathon Rights and Steel
Rights shall thereafter only be entitled to receive shares of Marathon
Stock and Steel Stock, respectively, at the applicable exchange ratio.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the
right to vote or to receive dividends. While the distribution of the
Rights will not be taxable to stockholders or to the Company, stockholders
may, depending upon the circumstances, recognize taxable income in the
event that the Marathon Rights and Steel Rights become exercisable for
Marathon Stock or Steel Stock, respectively (or other consideration), of
the Company or for Common Stock of the acquiring company as set forth
above.
Any of the provisions of the Rights Agreement may be amended by the
Board of Directors prior to the Distribution Date. After the Distribution
Date, the provisions of the Rights Agreement may be amended by the Board of
Directors in order to cure any ambiguity, to make changes which do not
adversely affect the interests of holders of Rights, or to shorten or
lengthen any time period under the Rights Agreement. The foregoing
notwithstanding, no amendment may be made at such time as the Rights are
not redeemable.
A copy of the Rights Agreement is being filed with the Securities and
Exchange Commission as an Exhibit to a Registration Statement on Form 8-A.
A copy of the Rights Agreement is available free of charge from the Rights
Agent. This summary description of the Rights does not purport to be
complete and is qualified in its entirety by reference to the Rights
Agreement, which is incorporated herein by reference.
Exhibit B
[Form of Rights Certificate]
Certificate No- R- _________ Rights
NOT EXERCISABLE AFTER OCTOBER 9, 2009 UNLESS EXTENDED PRIOR THERETO BY THE
BOARD OF DIRECTORS OR EARLIER IF REDEEMED BY THE COMPANY. THE RIGHTS ARE
SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.0l PER RIGHT ON
THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES,
RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED
IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY
BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE
ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING
PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS
ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE
AND THE RIGHTS REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE
CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF SUCH AGREEMENT.] 1
__________________
1
The portion of the legend in brackets shall be inserted only if
applicable and shall replace the preceding sentence.
Rights Certificate
USX 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
September 28, 1999 (the "Rights Agreement"), between USX Corporation, a
Delaware corporation (the "Company"), and ChaseMellon Shareholder Services,
L.L.C., a New Jersey limited liability company (the "Rights Agent"), to
purchase from the Company at any time prior to 5:00 P.M. (New York City
time) on October 9, 2009 (unless extended prior thereto by the Board of
Directors) at the office or offices of the Rights Agent designated for such
purpose, or its successors as Rights Agent, one one-hundredth of a fully
paid, non-assessable share of Series A Junior Preferred Stock (the
"Preferred Stock") of the Company, at a purchase price of $110 in cash per
one one-hundredth of a share (the "Purchase Price"), upon presentation and
surrender of this Rights Certificate with the Form of Election to Purchase
and related Certificate duly executed. The number of Rights evidenced by
this Rights Certificate (and the number of shares that may be purchased
upon exercise thereof) set forth above, and the Purchase Price per share
set forth above, are the number and Purchase Price as of October 9, 1999,
based on the Preferred Stock as constituted at such date. Pursuant to the
Rights Agreement, the Company reserves the right to require prior to the
occurrence of a Triggering Event (as such term is defined in the Rights
Agreement) that, upon any exercise of Rights, a number of Rights be
exercised so that only whole shares of Preferred Stock will be issued.
Upon the occurrence of a Section 11(a)(ii) Event (as such term is
defined in the Rights Agreement), if the Rights evidenced by this Rights
Certificate are beneficially owned by (i) an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person (as such terms are
defined in the Rights Agreement), (ii) a transferee of any such Acquiring
Person, Associate or Affiliate, or (iii) under certain circumstances
specified in the Rights Agreement, a transferee of a person who, after such
transfer, became an Acquiring Person or an Affiliate or Associate of an
Acquiring Person, such Rights shall become null and void and no holder
hereof shall have any right with respect to such Rights from and after the
occurrence of such Section 11(a)(ii) Event.
As provided in the Rights Agreement, the Purchase Price and the number
and kind of shares of Preferred Stock or other securities, which may be
purchased upon the exercise of the Rights evidenced by this Rights
Certificate are subject to modification and adjustment upon the happening
of certain events, including Triggering Events.
This Rights Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions
are hereby incorporated herein by reference and made a part hereof and to
which Rights Agreement reference is hereby made for a full description of
the rights, limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent, the Company and the holders of the Rights
Certificates, which limitations of rights including the temporary
suspension of the exercisability of such Rights under the specific
circumstances set forth in the Rights Agreement. Copies of the Rights
Agreement are on file at the office of the Rights Agent designated for such
purpose and are also available upon written request to the Rights Agent.
This Rights Certificate, with or without other Rights Certificates,
upon surrender at the office or offices of the Rights Agent designated for
such purpose, may be exchanged for another Rights Certificate or Rights
Certificates of like tenor and date evidencing Rights entitling the holder
to purchase a like aggregate number of one one-hundredths of a share of
Preferred Stock as the Rights evidenced by the Rights Certificate or Rights
Certificates surrendered shall have entitled such holder to purchase. If
this Rights Certificate shall be exercised in part, the holder shall be
entitled to receive upon surrender hereof another Rights Certificate or
Rights Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate may be redeemed by the Company at its option
at a redemption price of $.01 per Right (payable in cash or stock or any
other form of consideration deemed appropriate by the Board of Directors as
set forth in the Rights Agreement) (the "Redemption Price") at any time
prior to the earlier of the close of business on (i) the tenth Business Day
following the Stock Acquisition Date (as such time period may be extended
pursuant to the Rights Agreement), and (ii) the Final Expiration Date. In
addition, under certain circumstances following the Stock Acquisition Date,
the Rights may be exchanged, in whole or in part, for shares of the Voting
Stock, or shares of preference stock of the Company having essentially the
same value or economic rights as such shares. Immediately upon the action
of the Board of Directors authorizing any such exchange, and without any
further action or any notice, the Rights (other than Rights which are not
subject to such exchange) will terminate and the Rights will only enable
holders to receive the shares issuable upon such exchange.
No fractional shares of Preferred Stock will be issued upon the
exercise of any Right or Rights evidenced hereby (other than fractions
which are integral multiples of one one-hundredth of a share of Preferred
Stock, 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. The Company, at its election, may
require that a number of Rights be exercised so that only whole shares of
Preferred Stock would be issued.
No holder of this Rights Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of shares of
Preferred Stock or of any other securities of the Company which may at any
time be issuable on the exercise hereof, nor shall anything contained in
the Rights Agreement or herein be construed to confer upon the holder
hereof, as such, any of the rights of a stockholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions
affecting stockholders (except as provided in the Rights Agreement), or to
receive dividends or subscription rights, or otherwise, until the Right or
Rights evidenced by this Rights Certificate shall have been exercised as
provided in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company
and its corporate seal.
Dated as of _________________, ____
ATTEST: USX CORPORATION
_____________________________ By ___________________________
Secretary Title:
Countersigned:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
By _____________________________
Authorized Signature
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate)
FOR VALUE RECEIVED ______________________________ hereby
sells, assigns and transfers unto ____________________________________
______________________________________________________________________
(Print name and address of transferee)
______________________________________________________________________
this Rights Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint ___________,
Attorney, to transfer the within Rights Certificate on the books of
the within-named Company, with full power of substitution.
Dated: ____________, _____
_________________________________
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) this Rights Certificate [ ] is [ ] is not being
sold, assigned and transferred by or on behalf of a Person who is or was an
Acquiring Person or an Affiliate or Associate of any such Acquiring Person
(as such terms are defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned,
it [ ] did [ ] did not acquire the Rights evidenced by this Rights
Certificate from any Person who is, was or subsequently became an Acquiring
Person or an Affiliate or Associate of an Acquiring Person.
Dated: ____________, ____ _______________________________
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment and Certificate must
correspond to the name as written upon the face of this Rights Certificate
in every particular, without alteration or enlargement or any change
whatsoever.
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise Rights represented by the
Rights Certificate)
To: USX CORPORATION:
The undersigned hereby irrevocably elects to exercise ______ Rights
represented by this Rights Certificate to purchase the shares of Preferred
Stock issuable upon the exercise of the Rights (or such other securities of
the Company or of any other person which may be issuable upon the exercise
of the Rights) and requests that certificates for such shares be issued in
the name of and delivered to:
Please insert social security
or other identifying number
____________________________________________________________________
(Please print name and address)
____________________________________________________________________
If such number of Rights shall not be all the Rights evidenced by this
Rights Certificate, a new Rights Certificate for the balance of such Rights
shall be registered in the name of and delivered to:
Please insert social security
or other identifying number
___________________________________________________________________
(Please print name and address)
___________________________________________________________________
Dated: _____________, _____
______________________________
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) the Rights evidenced by this Rights Certificate [ ] are [ ]
are not being exercised by or on behalf of a Person who is or was an
Acquiring Person or an Affiliate or Associate of any such Acquiring Person
(as such terms are defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned,
it [ ] did [ ] did not acquire the Rights evidenced by this Rights
Certificate from any Person who is, was or became an Acquiring Person or an
Affiliate or Associate of an Acquiring Person.
Dated: _________ , 19 __________________________
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Election to Purchase and Certificate
must correspond to the name as written upon the face of this Rights
Certificate in every particular, without alteration or enlargement or any
change whatsoever.
Exhibit B-1
[FORM OF MARATHON RIGHTS CERTIFICATE]
Certificate No. R- Marathon Rights
NOT EXERCISABLE AFTER OCTOBER 9, 2009 UNLESS EXTENDED PRIOR THERETO BY THE
BOARD OF DIRECTORS OR EARLIER IF REDEEMED BY THE COMPANY. THE USX-MARATHON
GROUP RIGHTS ("MARATHON RIGHTS") ARE SUBJECT TO REDEMPTION, AT THE OPTION
OF THE COMPANY, AT $.0l PER MARATHON RIGHT ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, MARATHON RIGHTS
BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE
RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH MARATHON RIGHTS MAY
BECOME NULL AND VOID. [THE MARATHON RIGHTS REPRESENTED BY THIS MARATHON
RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR
BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING
PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY,
THIS MARATHON RIGHTS CERTIFICATE AND THE MARATHON RIGHTS REPRESENTED HEREBY
MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF
SUCH AGREEMENT.] 1
--------------------
1 The portion of the legend in brackets shall be inserted only if
applicable and shall replace the preceding sentence.
USX-Marathon Group Rights Certificate
USX CORPORATION
This certifies that
, or registered assigns, is the
registered owner of the number of USX-Marathon Group Rights ("Marathon
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 September 28, 1999 (the "Rights Agreement"), between USX Corporation, a
Delaware corporation (the "Company"), and ChaseMellon Shareholder Services,
L.L.C., a New Jersey limited liability company (the "Rights Agent"), to
purchase from the Company at any time prior to 5:00 P.M. (New York City
time) on October 9, 2009 (unless extended prior thereto by the Board of
Directors) at the office or offices of the Rights Agent designated for such
purpose, or its successors as Rights Agent, one one-hundredth of a fully
paid, non-assessable share of Series A Junior Preferred Stock (the
"Preferred Stock") of the Company, at a purchase price of $110 in cash per
one one-hundredth of a share (the "Purchase Price"), upon presentation and
surrender of this Marathon Rights Certificate with the Form of Election to
Purchase and related Certificate duly executed. The number of Marathon
Rights evidenced by this Marathon Rights Certificate (and the number of
shares that may be purchased upon exercise thereof) set forth above, and
the Purchase Price per share set forth above, are the number and Purchase
Price as of October 9, 1999, based on the Preferred Stock as constituted at
such date. Pursuant to the Rights Agreement, the Company reserves the
right to require prior to the occurrence of a Triggering Event (as such
term is defined in the Rights Agreement) that, upon any exercise of
Marathon Rights, a number of Marathon Rights be exercised so that only
whole shares of Preferred Stock will be issued.
Upon the occurrence of a Section 11(a)(ii) Event (as such term is
defined in the Rights Agreement), if the Marathon Rights evidenced by this
Marathon Rights Certificate are beneficially owned by (i) an Acquiring
Person or an Affiliate or Associate of any such Acquiring Person (as such
terms are defined in the Rights Agreement), (ii) a transferee of any such
Acquiring Person, Associate or Affiliate, or (iii) under certain
circumstances specified in the Rights Agreement, a transferee of a person
who, after such transfer, became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person, such Marathon Rights shall become null
and void and no holder hereof shall have any right with respect to such
Marathon Rights from and after the occurrence of such Section 11(a)(ii)
Event.
As provided in the Rights Agreement, the Purchase Price and the number
and kind of shares of Preferred Stock or other securities, which may be
purchased upon the exercise of the Marathon Rights evidenced by this
Marathon Rights Certificate are subject to modification and adjustment upon
the happening of certain events, including Triggering Events.
This Marathon Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms, provisions
and conditions are hereby incorporated herein by reference and made a part
hereof and to which Rights Agreement reference is hereby made for a full
description of the rights, limitations of rights, obligations, duties and
immunities hereunder of the Rights Agent, the Company and the holders of
the Marathon Rights Certificates, which limitations of rights include the
temporary suspension of the exercisability of such Marathon Rights under
the specific circumstances set forth in the Rights Agreement. Copies of
the Rights Agreement are on file at the office of the Rights Agent
designated for such purpose and are also available upon written request to
the Rights Agent.
This Marathon Rights Certificate, with or without other Marathon
Rights Certificates, upon surrender at the office or offices of the Rights
Agent designated for such purpose, may be exchanged for another Marathon
Rights Certificate or Marathon Rights Certificates of like tenor and date
evidencing Marathon Rights entitling the holder to purchase a like
aggregate number of one one-hundredths of a share of Preferred Stock as the
Marathon Rights evidenced by the Marathon Rights Certificate or Marathon
Rights Certificates surrendered shall have entitled such holder to
purchase. If this Marathon Rights Certificate shall be exercised in part,
the holder shall be entitled to receive upon surrender hereof another
Marathon Rights Certificate or Marathon Rights Certificates for the number
of whole Marathon Rights not exercised.
Subject to the provisions of the Rights Agreement, the Marathon Rights
evidenced by this Certificate may be redeemed by the Company at its option
at a redemption price of $.01 per Marathon Right (payable in cash or stock
or any other form of consideration deemed appropriate by the Board of
Directors as set forth in the Rights Agreement) (the "Redemption Price") at
any time prior to the earlier of the close of business on (i) the tenth
Business Day following the Stock Acquisition Date (as such time period may
be extended pursuant to the Rights Agreement), and (ii) the Final
Expiration Date. In addition, under certain circumstances following the
Stock Acquisition Date, the Marathon Rights may be exchanged, in whole or
in part, for shares of the Voting Stock, or shares of preference stock of
the Company having essentially the same value or economic rights as such
shares. Immediately upon the action of the Board of Directors authorizing
any such exchange, and without any further action or any notice, the
Marathon Rights (other than Marathon Rights which are not subject to such
exchange) will terminate and the Marathon Rights will only enable holders
to receive the shares issuable upon such exchange.
No fractional shares of Preferred Stock will be issued upon the
exercise of any Marathon Right or Marathon Rights evidenced hereby (other
than fractions which are integral multiples of one one-hundredth of a share
of Preferred Stock, which may, at the election of the Company, be evidenced
by depositary receipts), but in lieu thereof a cash payment will be made,
as provided in the Rights Agreement. The Company, at its election, may
require that a number of Marathon Rights be exercised so that only whole
shares of Preferred Stock would be issued.
No holder of this Marathon Rights Certificate shall be entitled to
vote or receive dividends or be deemed for any purpose the holder of shares
of Preferred Stock or of any other securities of the Company which may at
any time be issuable on the exercise hereof, nor shall anything contained
in the Rights Agreement or herein be construed to confer upon the holder
hereof, as such, any of the rights of a stockholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions
affecting stockholders (except as provided in the Rights Agreement), or to
receive dividends or subscription rights, or otherwise, until the Marathon
Right or Marathon Rights evidenced by this Rights Certificate shall have
been exercised as provided in the Rights Agreement.
This Marathon Rights Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company
and its corporate seal.
Dated as of _____________ , ___________
ATTEST: USX CORPORATION
______________________________ By ___________________________
Secretary Title
Countersigned:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
By _________________________
Authorized Signature
[Form of Reverse Side of Marathon Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Marathon Rights Certificate)
FOR VALUE RECEIVED _____________________________ hereby sells,
assigns and transfers unto _________________________________________
____________________________________________________________________
(Please print name and address of transferee)
this Marathon Rights Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and appoint
_________, Attorney, to transfer the within Marathon Rights Certificate on
the books of the within-named Company, with full power of substitution.
Dated: _____________, _____
___________________________
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) this Marathon Rights Certificate [ ] is [ ] is not being
sold, assigned and transferred by or on behalf of a Person who is or was an
Acquiring Person or an Affiliate or Associate of any such Acquiring Person
(as such terms are defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned,
it [ ] did [ ] did not acquire the Rights evidenced by this Marathon
Rights Certificate from any Person who is, was or subsequently became an
Acquiring Person or an Affiliate or Associate of an Acquiring Person.
Dated:_____________ , _____ _____________________________
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment and Certificate must
correspond to the name as written upon the face of this Marathon Rights
Certificate in every particular, without alteration or enlargement or any
change whatsoever.
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise Marathon Rights represented by the
Marathon Rights Certificate)
To: USX CORPORATION:
The undersigned hereby irrevocably elects to exercise _____ Marathon
Rights represented by this Marathon Rights Certificate to purchase the
shares of Preferred Stock issuable upon the exercise of the Marathon Rights
(or such other securities of the Company or of any other person which may
be issuable upon the exercise of the Marathon Rights) and requests that
certificates for such shares be issued in the name of and delivered to:
Please insert social security or other identifying number
___________________________________________________________________________
(Please print name and address)
___________________________________________________________________________
If such number of Marathon Rights shall not be all the Marathon Rights
evidenced by this Marathon Rights Certificate, a new Marathon Rights
Certificate for the balance of such Marathon Rights shall be registered in
the name of and delivered to:
Please insert social security or other identifying number
___________________________________________________________________________
(Please print name and address)
___________________________________________________________________________
Dated: ___________ , ____
________________________________
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) the Marathon Rights evidenced by this Marathon Rights Certificate
[ ] are [ ] are not being exercised by or on behalf of a Person who
is or was an Acquiring Person or an Affiliate or Associate of any such
Acquiring Person (as such terms are defined pursuant to the Rights
Agreement);
(2) after due inquiry and to the best knowledge of the undersigned,
it [ ] did [ ] did not acquire the Marathon Rights evidenced by this
Marathon Rights Certificate from any Person who is, was or became an
Acquiring Person or an Affiliate or Associate of an Acquiring Person.
Dated:______________ , 19 _____________________________
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Election to Purchase and Certificate
must correspond to the name as written upon the face of this Marathon
Rights Certificate in every particular, without alteration or enlargement
or any change whatsoever.
Exhibit B-2
[Form of Steel Rights Certificate]
Certificate No. R- Steel Rights
NOT EXERCISABLE AFTER OCTOBER 9, 2009 UNLESS EXTENDED PRIOR THERETO BY THE
BOARD OF DIRECTORS OR EARLIER IF REDEEMED BY THE COMPANY. THE USX-U.S.
STEEL GROUP RIGHTS ("STEEL RIGHTS") ARE SUBJECT TO REDEMPTION, AT THE
OPTION OF THE COMPANY, AT $.0l PER STEEL RIGHT ON THE TERMS SET FORTH IN
THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, STEEL RIGHTS
BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE
RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH STEEL RIGHTS MAY BECOME
NULL AND VOID. [THE STEEL RIGHTS REPRESENTED BY THIS STEEL RIGHTS
CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN
ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS
SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS STEEL
RIGHTS CERTIFICATE AND THE STEEL RIGHTS REPRESENTED HEREBY MAY BECOME NULL
AND VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF SUCH AGREEMENT.] 1
- ---------------
1 The portion of the legend in brackets shall be inserted only if
applicable and shall replace the preceding sentence.
USX-U.S. Steel Group Rights Certificate
USX CORPORATION
This certifies that
, or registered assigns, is the
registered owner of the number of USX-U.S. Steel Group Rights ("Steel
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 September 28, 1999 (the "Rights Agreement"), between USX Corporation, a
Delaware corporation (the "Company"), and ChaseMellon Shareholder Services,
L.L.C., a New Jersey limited liability company (the "Rights Agent"), to
purchase from the Company at any time prior to 5:00 P.M. (New York City
time) on October 9, 2009 (unless extended prior thereto by the Board of
Directors), at the office or offices of the Rights Agent designated for
such purpose, or its successors as Rights Agent, one one-hundredth of a
fully paid, non-assessable share of Series A Junior Preferred Stock (the
"Preferred Stock") of the Company, at a purchase price of $110 in cash per
one one-hundredth of a share (the "Purchase Price"), upon presentation and
surrender of this Steel Rights Certificate with the Form of Election to
Purchase and related Certificate duly executed. The number of Steel Rights
evidenced by this Steel Rights Certificate (and the number of shares that
may be purchased upon exercise thereof) set forth above, and the Purchase
Price per share set forth above, are the number and Purchase Price as of
October 9, 1999, based on the Preferred Stock as constituted at such date.
Pursuant to the Rights Agreement, the Company reserves the right to require
prior to the occurrence of a Triggering Event (as such term is defined in
the Rights Agreement) that, upon any exercise of Steel Rights, a number of
Steel Rights be exercised so that only whole shares of Preferred Stock will
be issued.
Upon the occurrence of a Section 11(a)(ii) Event (as such term is
defined in the Rights Agreement), if the Steel Rights evidenced by this
Steel Rights Certificate are beneficially owned by (i) an Acquiring Person
or an Affiliate or Associate of any such Acquiring Person (as such terms
are defined in the Rights Agreement), (ii) a transferee of any such
Acquiring Person, Associate or Affiliate, or (iii) under certain
circumstances specified in the Rights Agreement, a transferee of a person
who, after such transfer, became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person, such Steel Rights shall become null and
void and no holder hereof shall have any right with respect to such Steel
Rights from and after the occurrence of such Section 11(a)(ii) Event.
As provided in the Rights Agreement, the Purchase Price and the number
and kind of shares of Preferred Stock or other securities, which may be
purchased upon the exercise of the Steel Rights evidenced by this Steel
Rights Certificate are subject to modification and adjustment upon the
happening of certain events, including Triggering Events.
This Steel Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms, provisions
and conditions are hereby incorporated herein by reference and made a part
hereof and to which Rights Agreement reference is hereby made for a full
description of the rights, limitations of rights, obligations, duties and
immunities hereunder of the Rights Agent, the Company and the holders of
the Steel Rights Certificates, which limitations of rights include the
temporary suspension of the exercisability of such Steel Rights under the
specific circumstances set forth in the Rights Agreement. Copies of the
Rights Agreement are on file at the office of the Rights Agent designated
for such purpose and are also available upon written request to the Rights
Agent.
This Steel Rights Certificate, with or without other Steel Rights
Certificates, upon surrender at the office or offices of the Rights Agent
designated for such purpose, may be exchanged for another Steel Rights
Certificate or Steel Rights Certificates of like tenor and date evidencing
Steel Rights entitling the holder to purchase a like aggregate number of
one one-hundredths of a share of Preferred Stock as the Steel Rights
evidenced by the Steel Rights Certificate or Steel Rights Certificates
surrendered shall have entitled such holder to purchase. If this Steel
Rights Certificate shall be exercised in part, the holder shall be entitled
to receive upon surrender hereof another Steel Rights Certificate or Steel
Rights Certificates for the number of whole Steel Rights not exercised.
Subject to the provisions of the Rights Agreement, the Steel Rights
evidenced by this Certificate may be redeemed by the Company at its option
at a redemption price of $.0l per Steel Right (payable in cash or stock or
any other form of consideration deemed appropriate by the Board of
Directors as set forth in the Rights Agreement) (the "Redemption Price") at
any time prior to the earlier of the close of business on (i) the tenth
Business Day following the Stock Acquisition Date (as such time period may
be extended pursuant to the Rights Agreement), and (ii) the Final
Expiration Date. In addition, under certain circumstances following the
Stock Acquisition Date, the Steel Rights may be exchanged, in whole or in
part, for shares of the Voting Stock, or shares of preference stock of the
Company having essentially the same value or economic rights as such
shares. Immediately upon the action of the Board of Directors authorizing
any such exchange, and without any further action or any notice, the Steel
Rights (other than Steel Rights which are not subject to such exchange)
will terminate and the Steel Rights will only enable holders to receive the
shares issuable upon such exchange.
No fractional shares of Preferred Stock will be issued upon the
exercise of any Steel Right or Steel Rights evidenced hereby (other than
fractions which are integral multiples of one one-hundredth of a share of
Preferred Stock, which may, at the election of the Company, be evidenced by
depositary receipts), but in lieu thereof a cash payment will be made, as
provided in the Rights Agreement. The Company, at its election, may
require that a number of Rights be exercised so that only whole shares of
Preferred Stock would be issued.
No holder of this Steel Rights Certificate shall be entitled to vote
or receive dividends or be deemed for any purpose the holder of shares of
Preferred Stock or of any other securities of the Company which may at any
time be issuable on the exercise hereof, nor shall anything contained in
the Rights Agreement or herein be construed to confer upon the holder
hereof, as such, any of the rights of a stockholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions
affecting stockholders (except as provided in the Rights Agreement), or to
receive dividends or subscription rights, or otherwise, until the Steel
Right or Steel Rights evidenced by this Rights Certificate shall have been
exercised as provided in the Rights Agreement.
This Steel Rights Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company
and its corporate seal.
Dated as of __________ , ____
ATTEST: USX CORPORATION
__________________________ By _____________________________
Secretary Title
Countersigned:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
By ___________________________
Authorized Signature
[Form of Reverse Side of Steel Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Steel Rights Certificate)
FOR VALUE RECEIVED _____________________________ hereby sells,
assigns and transfers unto ____________________________________________
_______________________________________________________________________
(Please print name and address of transferee)
this Steel Rights Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint ______________,
Attorney, to transfer the within Steel Rights Certificate on the books
of the within-named Company, with full power of substitution.
Dated as of ___________, ____
___________________________
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) this Steel Rights Certificate [ ] is [ ] is not being
sold, assigned and transferred by or on behalf of a Person who is or was an
Acquiring Person or an Affiliate or Associate of any such Acquiring Person
(as such terms are defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned,
it [ ] did [ ] did not acquire the Rights evidenced by this Steel
Rights Certificate from any Person who is, was or subsequently became an
Acquiring Person or an Affiliate or Associate of an Acquiring Person.
Dated as of ____________ , ____ _____________________________
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment and Certificate must
correspond to the name as written upon the face of this Steel Rights
Certificate in every particular, without alteration or enlargement or any
change whatsoever.
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise Steel Rights represented by the
Steel Rights Certificate)
To: USX CORPORATION:
The undersigned hereby irrevocably elects to exercise _____ Steel
Rights represented by this Steel Rights Certificate to purchase the shares
of Preferred Stock issuable upon the exercise of the Steel Rights (or such
other securities of the Company or of any other person which may be
issuable upon the exercise of the Steel Rights) and requests that
certificates for such shares be issued in the name of and delivered to:
Please insert social security
or other identifying number
__________________________________________________________________________
(Please print name and address)
__________________________________________________________________________
If such number of Steel Rights shall not be all the Steel Rights
evidenced by this Steel Rights Certificate, a new Steel Rights Certificate
for the balance of such Steel Rights shall be registered in the name of and
delivered to:
Please insert social security
or other identifying number
__________________________________________________________________________
(Please print name and address)
_________________________________________________________________________
Dated as of _________ , _____
______________________________
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) the Steel Rights evidenced by this Steel Rights Certificate
[ ] are [ ] are not being exercised by or on behalf of a Person who
is or was an Acquiring Person or an Affiliate or Associate of any such
Acquiring Person (as such terms are defined pursuant to the Rights
Agreement);
(2) after due inquiry and to the best knowledge of the undersigned,
it [ ] did [ ] did not acquire the Steel Rights evidenced by this
Steel Rights Certificate from any Person who is, was or became an Acquiring
Person or an Affiliate or Associate of an Acquiring Person.
Dated as of _____________ , ____ _____________________________
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Election to Purchase and Certificate
must correspond to the name as written upon the face of this Steel Rights
Certificate in every particular, without alteration or enlargement or any
change whatsoever.
