<PAGE>1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
FORM 8-A/A
AMENDMENT No. 2 TO REGISTRATION STATEMENT
ON FORM 8-A
Filed pursuant to Section 12(b) or 12(g) of
THE SECURITIES EXCHANGE ACT OF 1934
__________________________
USLIFE CORPORATION
__________________
(Exact name of registrant as specified in charter)
NEW YORK
_________________________________________________________________
(State or other jurisdiction of incorporation)
1-5683 13-2578598
_________________________ __________________________________
Commission File Number (IRS Employer Identification No.)
125 Maiden Lane, New York, NY 10038
________________________________________________________________________
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each Exchange on which
to be so registered each class is to be registered
___________________ ______________________________
Warrants to Purchase Shares of Common Stock New York Stock Exchange,
Chicago Stock Exchange,
Pacific Stock Exchange,
London Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
None
<PAGE>2
The undersigned registrant, USLIFE Corporation (the "Company"),
hereby amends and supplements, as set forth below, Items 1 and 2 of the
Company's Registration Statement on Form 8-A filed with the Securities and
Exchange Commission (the "Commission") on June 26, 1986 (the "Form 8-A"), as
amended by Amendment No. 1 to the Registration Statement on Form 8-A filed with
the Commission on Form 8 on January 25, 1989 (the "Form 8"), both of which are
incorporated herein by these references:
ITEM 1. Description of Securities
Information concerning the Company's Warrants to purchase shares of
Common Stock, par value $1.00 per share, of the Company (the "Rights") is
contained in the Company's Registration Statements on Form 8-A and Form 8. All
capitalized terms not otherwise defined herein have the meanings assigned in
the Form 8-A and the Form 8.
On September 27, 1994, the Board of Directors of the Company
approved an Amended and Restated Rights Agreement (the "Second Amended and
Restated Rights Plan") between the Company and Chemical Bank, the successor by
merger to Manufacturers Hanover Trust Company, as Rights Agent. The Second
Amended and Restated Rights Plan was executed by the Company and Chemical Bank
on September 27, 1994. The Second Amended and Restated Rights Plan amends and
restates the Amended and Restated Rights Agreement dated as of January 24, 1989
(the "First Amended and Restated Rights Plan"), which amended and restated the
original Rights Agreement dated as of June 24, 1986. The Second Amended and
Restated Rights Plan amends the First Amended and Restated Rights Plan as
follows (references herein to Sections refer to the Second Amended and Restated
Rights Plan):
(i) Section 1.1(h) is amended to provide that: "'Expiration Date'
shall mean the earlier of (i) July 10, 2006 or, if the Separation
Date occurs subsequent to July 10, 2003 but prior to July 10, 2006,
the third anniversary of the Separation Date and (ii) the
Redemption Date."
(ii) The first sentence of Section 2.4(a) is amended to provide that:
"Subject to Section 5.2 and to adjustment as set forth below, each
Right will entitle the holder thereof to purchase, for $160, one
half of a share of Common Stock."
(iii) The first sentence of Section 1.1(t), beginning at clause (ii), is
amended to provide that "the date of the commencement of, or first
public announcement of the intent of any Person (other than the
Company, any wholly-owned subsidiary of the Company, or any
employee stock ownership or other employee benefit plan of the
Company or any wholly-owned subsidiary of the Company in effect on
the date hereof or hereafter approved by the Disinterested
Directors) to commence, a tender or exchange offer to acquire (when
<PAGE>3
added to any shares as to which such Person is the Beneficial Owner
immediately prior to such tender or exchange offer) Beneficial
Ownership of 20% or more of the outstanding shares of Common Stock,
provided that if the foregoing results in the Separation Date being
prior to the Record Date, the Separation Date shall be the Record
Date."
(iv) That Section 1.1(s) of the Rights Plan is deleted and the letter
designations for each of the subsequent provisions of Section 1.1
are amended accordingly.
(v) The first sentence of Section 5.1 is amended to provide that: "The
Board of Directors of the Company may, at any time prior to the
close of business on the tenth day after the Stock Acquisition
Date, elect to redeem all (but not less than all) outstanding
Rights, at a price per Right in cash equal to the Redemption Price;
provided, however, that after the Stock Acquisition Date no such
election may be made unless approved by the Disinterested
Directors, and further provided that, notwithstanding the
foregoing, the Board of Directors may, at any time within two years
after the Stock Acquisition Date, elect to redeem all (but not less
than all) outstanding Rights, at a price per Right in cash equal to
the Redemption Price, in connection with (and contingent upon
successful completion of) a merger or consolidation of the Company
with, or a sale or transfer of all or substantially all of the
assets of the Company to, a Person which is neither an Acquiring
Person nor an Affiliate or Associate of an Acquiring Person, if
such merger, consolidation, sale or transfer shall have been
approved by the affirmative vote of the holders of a majority of
the outstanding shares of Common Stock not Beneficially Owned by an
Acquiring Person."
(vi) Section 1.1(f) is replaced with: "'Disinterested Director' shall
mean any member of the Board of Directors who (i) is not, or as a
result of the transaction to be voted upon by the Board of
Directors would not become, the Beneficial Owner of 20% or more of
the outstanding shares of Common Stock or an officer, director or
employee of such Beneficial Owner, (ii) is not, or at any time
within the two year period immediately prior to the date of
determination of the status of such director, not an Affiliate or
Associate of any Person who is, or as a result of the transaction
to be voted upon by the Board of Directors would become, the
Beneficial Owner of 20% or more of the then outstanding shares of
Common Stock or an officer, director or employee of such Beneficial
Owner, (iii) is not a partner, officer, director or nominee of an
organization that has a customary commercial, industrial, banking
or underwriting relationship with, and does not act on a regular
basis as an individual or representative of an organization serving
as a professional advisor, legal counsel or consultant to, any
Person who is, or as a result of the transaction to be voted upon
by the Board of Directors would become, the Beneficial Owner of 20%
<PAGE>4
or more of the outstanding shares of Common Stock or (iv) was not
nominated to serve as a member of the Board of Directors by any
Person who is, or would become as a result of the transaction to be
voted upon by the Board of Directors, the Beneficial Owner of 20%
or more of the outstanding shares of Common Stock, it being
understood that no current director of the Company shall be deemed
not to be a Disinterested Director solely by reason of this clause
(iv)."
(vii) The term "Continuing Directors" is replaced wherever it appears by
the term "Disinterested Directors" as defined in the amendment
above, in Sections 1.1(i), 1.1(j), 1.1(t), 5.1 and 5.5 of the
Rights Plan.
(viii) Clause (ii) of the first sentence of Section 5.5(a) is amended to
provide that "from time to time prior to the close of business on
the Flip-in Date, supplement or amend in any respect Sections 1.1,
2.4(a), 2.7(e), 2.11(e), 3.2, 5.1, provided that such amendment to
Section 5.1 shall not violate clause (i) above, 5.5 or 5.17 or this
clause (ii) of this sentence without the approval of any holders of
Rights."
ITEM 2. Exhibits
3(ii) (a) By-Laws of USLIFE Corporation, as amended and restated on December
31, 1992 (previously filed as an exhibit to the Form 10-K dated
December 31, 1992).
(b) By-Laws of USLIFE Corporation, as amended and restated on May 17,
1994 and on September 27, 1994.*
4 (a) Rights Agreement, dated as of June 24, 1986, between USLIFE
Corporation and Manufacturers Hanover Trust Company, as Rights
Agent (previously filed as an exhibit to the Form 8-A dated June
24, 1986).
(b) Amended and Restated Rights Agreement, dated as of January 24,
1989, between USLIFE Corporation and Manufacturers Hanover Trust
Company, as Rights Agent (previously filed as an exhibit to the
Form 8 dated January 25, 1989).
(c) Amended and Restated Rights Agreement, dated as of September 27,
1994, between USLIFE Corporation and Chemical Bank, the successor
by merger to Manufacturers Hanover Trust Company, as Rights Agent.*
__________________________
* Filed herewith.
<PAGE>5
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this amendment to be signed on its behalf by the
undersigned, thereunto duly authorized.
USLIFE CORPORATION
(Registrant)
Dated: October 12, 1994 By: /s/ Richard G. Hohn
________________________________________
Name: Richard G. Hohn
Title: Senior Vice President - Corporate
Secretary & Counsel
<PAGE>1
USLIFE Corporation
Form 8-A/A Amendment No. 2
Exhibit Index
Exhibit Number
Per Item 601 of
Regulation S-K
_______________
3(ii) (a) By-Laws of USLIFE Corporation, as amended and restated on December
31, 1992 (previously filed as an exhibit to the Form 10-K dated
December 31, 1992).
(b) By-Laws of USLIFE Corporation, as amended and restated on May 17,
1994 and on September 27, 1994.
4 (a) Rights Agreement, dated as of June 24, 1986, between USLIFE
Corporation and Manufacturers Hanover Trust Company, as Rights
Agent (previously filed as an exhibit to the Form 8-A dated June
24, 1986).
(b) Amended and Restated Rights Agreement, dated as of January 24,
1989, between USLIFE Corporation and Manufacturers Hanover Trust
Company, as Rights Agent (previously filed as an exhibit to the
Form 8 dated January 25, 1989).
(c) Amended and Restated Rights Agreement, dated as of September 27,
1994, between USLIFE Corporation and Chemical Bank, the successor
by merger to Manufacturers Hanover Trust Company, as Rights Agent.
<PAGE>1
USLIFE Corporation
(Formed under the laws of the State of New York)
__________________
BY-LAWS
AS AMENDED AND RESTATED SEPTEMBER 27, 1994
__________________
ARTICLE I
Shareholders
SECTION 1. ANNUAL MEETING. A meeting of shareholders shall
be held annually for the election of directors and the transaction of
other business on the third Tuesday in May or on such other date as
may be fixed from time to time by the Board of Directors.
SECTION 2. Special Meetings. Special Meetings of the
shareholders may be called by the Board of Directors or, subject to
the control of the Board, by the Chairman.
SECTION 3. Place of Meetings. Meetings of shareholders
shall be held at such place, within or without the State of New York,
as may be fixed by the Board of Directors. If no place is so fixed,
such meetings shall be held at the office of the Corporation in the
State of New York.
SECTION 4. Notice of Meetings. Notice of each meeting of
shareholders shall be given in writing and shall state the place, date
and hour of the meeting and the purpose or purposes for which the
meeting is called. Notice of a special meeting shall indicate that it
is being issued by or at the direction of the person or persons
calling or requesting the meeting.
If, at any meeting, action is proposed to be taken which
would, if taken, entitle objecting shareholders to receive payment for
their shares, the notice shall include a statement of that purpose and
to that effect.
A copy of the notice of each meeting shall be given, personally
or by first class mail, not less than ten nor more than
<PAGE>2
fifty days before the date of the meeting, to each shareholder
entitled to vote at such meeting. If mailed, such notice is given
when deposited in the United States mail, with postage thereon
prepaid, directed to the shareholder at his address as it appears on
the record of shareholders, or, if he shall have filed with the
Secretary of the Corporation a written request that notices to him be
mailed to some other address, then directed to him at such other
address.
When a meeting is adjourned to another time or place, it
shall not be necessary to give any notice of the adjourned meeting if
the time and place to which the meeting is adjourned are announced at
the meeting at which the adjournment is taken, and at the adjourned
meeting any business may be transacted that might have been transacted
on the original date of the meeting. However, if after the
adjournment the Board of Directors fixes a new record date for the
adjourned meeting, a notice of the adjourned meeting shall be given to
each shareholder of record on the new record date entitled to notice
under the preceding paragraphs of this SECTION 4.
SECTION 5. Waiver of Notice. Notice of meeting need not be
given to any shareholder who submits a signed waiver of notice, in
person or by proxy, whether before or after the meeting. The
attendance of any shareholder at a meeting, in person or by proxy,
without protesting prior to the conclusion of the meeting the lack of
notice of such meeting, shall constitute a waiver of notice by him.
SECTION 6. Inspectors of Election. The Board of Directors,
in advance of any shareholders' meeting, may appoint one or more
inspectors to act at the meeting or any adjournment thereof. If
inspectors are not so appointed, the person presiding at a
shareholders' meeting may, and on the request of any shareholder
entitled to vote thereat shall, appoint two inspectors. In case any
person appointed fails to appear or act, the vacancy may be filled by
appointment made by the Board in advance of the meeting or at the
meeting by the person presiding thereat. Each inspector, before
entering upon the discharge of his duties, shall take and sign an oath
<PAGE>3
faithfully to execute the duties of inspector at such meeting with
strict impartiality and according to the best of his ability.
The inspectors shall determine the number of shares
outstanding and the voting power of each, the shares represented at
the meeting, the existence of a quorum, and the validity and effect of
proxies, and shall receive votes, ballots or consents, hear and
determine all challenges and questions arising in connection with the
right to vote, count and tabulate all votes, ballots or consents,
determine the result, and do such acts as are proper to conduct the
election or vote with fairness to all shareholders. On request of the
person presiding at the meeting or any shareholder entitled to vote
thereat, the inspectors shall make a report in writing of any
challenge, question or matter determined by them and execute a
certificate of any fact found by them. Any report or certificate made
by them shall be prima facie evidence of the facts stated and of the
vote as certified by them.
SECTION 7. List of Shareholders at Meeting. A list of
shareholders as of the record date, certified by the Secretary or any
Assistant Secretary or by a transfer agent, shall be produced at any
meeting of shareholders upon the request thereat or prior thereto of
any shareholder. If the right to vote at any meeting is challenged,
the inspectors of election, or persons presiding thereat, shall
require such list of shareholders to be produced as evidence of the
right of the persons challenged to vote at such meeting, and all
persons who appear from such list to be shareholders entitled to vote
thereat may vote at such meeting.
SECTION 8. Qualification of Voters. Unless otherwise
provided in the certificate of incorporation, every shareholder of
record shall be entitled at every meeting of shareholders to one vote
for every share standing in his name on the record of shareholders.
Treasury shares as of the record date and shares held as of the
record date by another domestic or foreign corporation of any type or
kind, if a majority of the shares entitled to vote in the election of
directors of such other corporation is held as of the record date by
the Corporation, shall not be shares entitled to vote or to be
<PAGE>4
counted in determining the total number of outstanding shares.
Shares held by an administrator, executor, guardian,
conservator, committee, or other fiduciary, except a trustee, may be
voted by him, either in person or by proxy, without transfer of such
shares into his name. Shares held by a trustee may be voted by him,
either in person or by proxy, only after the shares have been
transferred into his name as trustee or into the name of his nominee.
Shares standing in the name of another domestic or foreign
corporation of any type or kind may be voted by such officer, agent or
proxy as the by-laws of such corporation may provide, or, in the
absence of such provision, as the board of directors of such
corporation may determine.
A shareholder shall not sell his vote or issue a proxy to
vote to any person for any sum of money or anything of value except as
permitted by law.
SECTION 9. Quorum of Shareholders. The holders of a
majority of the shares entitled to vote thereat shall constitute a
quorum at a meeting of shareholders for the transaction of any
business, provided that when a specified item of business is required
to be voted on by a class or series, voting as a class, the holders of
a majority of the shares of such class or series shall constitute a
quorum for the transaction of such specified item of business.
When a quorum is once present to organize a meeting, it is
not broken by the subsequent withdrawal of any shareholders.
The shareholders who are present in person or by proxy and
who are entitled to vote may, by a majority of votes cast, adjourn the
meeting despite the absence of a quorum.
SECTION 10. Proxies. Every shareholder entitled to vote at
a meeting of shareholders or to express consent or dissent without a
meeting may authorize another person or persons to act for him by
proxy.
<PAGE>5
Every proxy must be signed by the shareholder or his
attorney-in-fact. No proxy shall be valid after the expiration of
eleven months from the date thereof unless otherwise provided in the
proxy. Every proxy shall be revocable at the pleasure of the
shareholder executing it, except as otherwise provided by law.
The authority of the holder of a proxy to act shall not be
revoked by the incompetence or death of the shareholder who executed
the proxy unless, before the authority is exercised, written notice of
an adjudication of such incompetence or of such death is received by
the Secretary or any Assistant Secretary.
SECTION 11. Vote or Consent of Shareholders. Directors
shall, except as otherwise required by law, be elected by a plurality
of the votes cast at a meeting of shareholders by the holders of
shares entitled to vote in the election.
Whenever any corporate action, other than the election of
directors, is to be taken by vote of the shareholders, it shall,
except as otherwise required by law, be authorized by a majority of
the votes cast at a meeting of shareholders by the holders of shares
entitled to vote thereon.
Whenever shareholders are required or permitted to take any
action by vote, such action may be taken without a meeting on written
consent, setting forth the action so taken, signed by the holders of
all outstanding shares entitled to vote thereon. Written consent thus
given by the holders of all outstanding shares entitled to vote shall
have the same effect as a unanimous vote of shareholders.
SECTION 12. Fixing Record Date. For the purpose of determining
the shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or to express consent to or
dissent from any proposal without a meeting, or for the purpose of
determining shareholders entitled to receive payment of any dividend
or the allotment of any rights, or for the purpose of any other
action, the Board of Directors may fix, in advance, a date as the
record date for any such determination of shareholders. Such date
<PAGE>6
shall not be more than fifty nor less than ten days before the date of
such meeting, nor more than fifty days prior to any other action.
When a determination of shareholders of record entitled to
notice of or to vote at any meeting of shareholders has been made as
provided in this section, such determination shall apply to any
adjournment thereof, unless the Board of Directors fixes a new record
date for the adjourned meeting.
SECTION 13. Nomination of Directors by Shareholders. Notice
of all nominations by shareholders for the office of director shall be
given in writing to the Secretary of the Corporation at least sixty
but not more than ninety days prior to the date of the annual meeting
of shareholders or any other meeting at which directors are to be
elected. Such notice shall contain information about the nominee
called for by Item 401 of Regulation S-K under The Securities Act of
1933 and The Securities Exchange Act of 1934, as Item 401 may
hereinafter provide on the date such notice is given, together with
such additional information about the nominee's background as the
Secretary of the Corporation may reasonably require. No person
nominated by a shareholder for the office of director shall be
eligible for election to that office unless nominated in accordance
with this Section 13 of Article I.
SECTION 14. Shareholder Proposals. Any shareholder desiring
to submit a proposal for corporate action at an annual or special
meeting of shareholders must submit a written proposal together with a
concise written supporting statement to the Secretary of the
Corporation at least sixty days prior to the date of said meeting. No
proposal submitted by a shareholder for corporate action shall be
considered at an annual or special meeting unless such proposal is
submitted in accordance with this Section 14 of Article I.
<PAGE>7
ARTICLE II
Board of Directors
SECTION 1. Power of Board and Qualification of Directors.
The business of the Corporation shall be managed by the Board of
Directors. Each director shall be at least twenty-one years of age.
SECTION 2. Number of Directors. The number of directors
constituting the entire Board of Directors shall be the number, not
less than three, fixed from time to time by a majority of the total
number of directors which the Corporation would have, prior to any
increase or decrease, if there were no vacancies, provided, however,
that no decrease shall shorten the term of an incumbent director. The
number of directors constituting the entire Board shall be 16.
SECTION 3. Election and Term of Directors. The Board of
Directors shall be divided into three classes, designated Class I,
Class II and Class III. Such classes shall be as nearly equal in
number as the then total number of directors constituting the entire
Board permits. At the 1978 Annual Meeting of Shareholders, or any
special meeting in lieu thereof, five Class I, five Class II and six
Class III directors shall be elected to initial terms expiring at the
next succeeding annual meeting, the second succeeding annual meeting
and the third succeeding annual meeting, respectively, and until their
respective successors are elected and qualified. At each annual
meeting of shareholders after 1978, the directors chosen to succeed
those in the class whose terms expire shall be elected by shareholders
for terms expiring at the third succeeding annual meeting after
election and until their respective successors are elected and
qualified. Newly created directorships or any decrease in
directorships resulting from increases or decreases in the number of
directors shall be so apportioned among the classes of directors as to
make all the classes as nearly equal in number as possible.
<PAGE>8
Notwithstanding the foregoing and Section 8 of this Article
II, whenever the holders of any one or more classes or series of
preferred stock issued by the Corporation shall have the right, voting
separately by class or series, to elect directors at an annual or
special meeting of shareholders, the election, term of office, filling
of vacancies and other features of such directorships shall be
governed by any terms of the Certificate of Incorporation applicable
thereto, and such directors so elected shall not be divided into
classes pursuant to this Section 3 unless expressly provided by such
terms.
SECTION 4. Quorum of Directors and Action by Board. A
majority of the entire Board of Directors shall constitute a quorum
for the transaction of business, and, except where otherwise provided
in these by-laws, the vote of a majority of the directors present at a
meeting at the time of such vote, if a quorum is then present, shall
be the act of the Board.
Any one or more members of the Board of Directors may
participate in a meeting of the Board by means of a conference
telephone or similar communications equipment allowing all persons
participating in the meeting to hear each other at the same time, and
participation by such means shall constitute presence in person at
such meeting.
SECTION 5. Meetings of Board. An annual meeting of the
Board of Directors shall be held in each year directly after the
annual meeting of shareholders. Regular meetings of the Board shall
be held at such times as may be fixed by the Board. Special meetings
of the Board may be held at any time upon the call of the Chairman of
the Board or any two directors.
Meetings of the Board of Directors shall be held at such
places as may be fixed by the Board for annual and regular meetings
and in the notice of meeting for special meeting. If no place is so
fixed, meetings of the Board shall be held at the office of the
Corporation in New York, New York.
No notice need be given of annual or regular meetings of the
Board of Directors. Notice of each special meeting of the Board shall
be given to each director either by mail not later than noon, New York
<PAGE>9
time, on the third day prior to the meeting or by telegram, written
message or orally to the director not later than noon, New York time,
on the day prior to the meeting. Notices are deemed to have been
given: by mail, when deposited in the United States mail; by telegram
at the time of filing; and by messenger at the time of delivery.
Notices by mail, telegram or messenger shall be sent to each director
at the address designated by him for that purpose, or, if none has
been so designated, at his last known residence or business address.
Notice of a meeting of the Board of Directors need not be
given to any director who submits a signed waiver of notice whether
before or after the meeting, or who attends the meeting without
protesting, prior thereto or at its commencement, the lack of notice
to him.
A notice, or waiver of notice, need not specify the purpose
of any meeting of the Board of Directors.
Unless the Board of Directors otherwise provides, each
committee designated by the Board may make, alter and repeal rules for
the conduct of its business. In the absence of a provision by the
Board of Directors or a provision in the rules of such committee to
the contrary, a majority of the entire authorized number of members of
such committee shall constitute a quorum for the transaction of
business, the vote of a majority of the members present at a meeting
at the time of such vote if a quorum is then present or the unanimous
written consent of all members thereof shall be the act of such
committee, any one or more members of such committee may participate
in a meeting of such committee by means of a conference telephone or
similar communications equipment allowing all persons participating in
the meeting to hear each other at the same time and participation by
such means shall constitute presence in person at such meeting, and in
other respects each committee shall conduct its business in the same
manner as the Board of Directors conducts its business pursuant to
Article II of these by-laws.
SECTION 6. Resignations. Any director of the Corporation may
resign at any time by giving written notice to the Board of Directors
or to the Chairman of the Board or to the Secretary of the
<PAGE>10
Corporation. Such resignation shall take effect at the time specified
therein; and unless specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
SECTION 7. Removal of Directors. Any one or more of the
directors may be removed for cause by action of the Board of Directors
or by vote of the shareholders.
SECTION 8. Newly Created Directorships and Vacancies. Newly
created directorships resulting from an increase in the number of
directors and vacancies occurring in the Board of Directors for any
reason except the removal of directors by shareholders shall be filled
by vote of a majority of the directors then in office, although less
than a quorum exists. Vacancies occurring as a result of the removal
of directors by shareholders shall be filled by the shareholders. A
director elected to fill a vacancy shall be elected to hold office for
the unexpired term of his predecessor.
SECTION 9. Executive and Other Committees of Directors. The
Board of Directors, by resolution adopted by a majority of the entire
Board, may designate from among its members an executive committee and
other committees, each consisting of three or more directors, and each
of which, to the extent provided in the resolution, shall have all the
authority of the Board, except that no such committee shall have
authority as to the following matters:
(1) The submission to shareholders of any action that
needs shareholders' approval;
(2) The filling of vacancies in the Board or in any
committee;
(3) The fixing of compensation of the directors for serving
on the Board or on any committee;
(4) The amendment or repeal of the by-laws, or the adoption
of new by-laws;
(5) The amendment or repeal of any resolution of the Board
which, by its terms, shall not be so amendable or
repealable; or
<PAGE>11
(6) The removal or indemnification of directors.
The Board of Directors may designate one or more directors as
alternate members of any such committee, who may replace any absent
member or members at any meeting of such committee.
Unless a greater proportion is required by the resolution
designating a committee, a majority of the entire authorized number of
members of such committee shall constitute a quorum for the
transaction of business, and the vote of a majority of the members
present at a meeting at the time of such vote, if a quorum is then
present, shall be the act of such committee.
Each such committee shall serve at the pleasure of the Board
of Directors.
SECTION 10. Compensation of Directors. The Board of
Directors shall have authority to fix the compensation of directors
for services in any capacity.
SECTION 11. Interest of Director in a Transaction. Unless
shown to be unfair and unreasonable as to the Corporation, no contract
or other transaction between the Corporation and one or more of its
directors, or between the Corporation and any other corporation, firm,
association or other entity in which one or more of the directors are
directors or officers, or are financially interested, shall be either
void or voidable, irrespective of whether such interested director or
directors are present at a meeting of the Board of Directors, or of a
committee thereof, which authorizes such contract or transaction and
irrespective of whether his or their votes are counted for such
purpose. In the absence of fraud any such contract or transaction may
be conclusively authorized or approved as fair and reasonable by:
(1) The Board of Directors, or a duly empowered committee
thereof, by a vote sufficient for such purpose without
counting the vote or votes of such interested director or
directors (although he or they may be counted in
determining the presence of a quorum at the meeting which
authorizes such contract or transaction), if the
<PAGE>12
fact of such common directorship, officership or
financial interest is disclosed or known to the Board or
committee (as the case may be); or
(2) The shareholders entitled to vote for the election of
directors, if such common directorship, officership or
financial interest is disclosed or known to such
shareholders.
Notwithstanding the foregoing, no loan, except advances in
connection with idemnification, shall be made by the Corporation to
any director unless it is authorized by vote of the shareholders
without counting any shares of the director who would be the borrower.
SECTION 12. Indemnification. Except to the extent expressly
prohibited by the New York Business Corporation Law, the Corporation
shall indemnify each person made or threatened to be made a party to
or called as a witness in or asked to provide information in
connection with any pending or threatened action, proceeding, hearing
or investigation, whether civil or criminal, and whether judicial,
quasi-judicial, administrative, or legislative, and whether or not for
or in the right of the Corporation or any other enterprise, by reason
of the fact that such person or such person's testator or intestate is
or was a director or officer of the Corporation, or is or was a
director or officer of the Corporation who also serves or served at
the request of the Corporation any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise in any
capacity, against judgments, fines, penalties, amounts paid in
settlement and reasonable expenses, including attorneys' fees,
incurred in connection with such action or proceeding, or any appeal
therein, provided that no such indemnification shall be made if a
judgment or other final adjudication adverse to such person
establishes that his or her acts were committed in bad faith or were
the result of active and deliberate dishonesty and were material to
the cause of action so adjudicated, or that he or she personally
gained in fact a financial profit or other advantage to which he or
she was not legally entitled, and provided further that no such
indemnification shall be required with respect to any settlement or
other nonadjudicated disposition of any threatened or pending action
<PAGE>13
or proceeding unless the Corporation has given its prior consent to
such settlement or other disposition.
The Corporation shall advance or promptly reimburse, upon
request of any person entitled to indemnification hereunder, all
expenses, including attorneys' fees, reasonably incurred in defending
any action or proceeding in advance of the final disposition thereof
upon receipt of a written undertaking by or on behalf of such person
to repay such amount if such person is ultimately found not to be
entitled to indemnification or, where indemnification is granted, to
the extent the expenses so advanced or reimbursed exceed the amount to
which such person is entitled, provided, however, that such person
shall cooperate in good faith with any request by the Corporation that
common counsel be utilized by the parties to an action or proceeding
who are similarly situated unless to do so would be inappropriate due
to actual or potential differing interests between or among such
parties.
Nothing herein shall limit or affect any right of any person
otherwise than hereunder to indemnification or expenses, including
attorneys' fees, under any statute, rule, regulation, certificate of
incorporation, by-law, insurance policy, contract or otherwise.
No elimination of this by-law, and no amendment of this
by-law adversely affecting the right of any person to indemnification
or advancement of expenses hereunder shall be effective until the 60th
day following notice to such person of such action, and no elimination
of or amendment to this by-law shall deprive any person of his or her
rights hereunder arising out of alleged or actual occurrences, acts or
failures to act prior to such 60th day. The provisions of this
paragraph shall supersede anything to the contrary in these by-laws.
The Corporation shall not, except by elimination or amendment
of this by-law in a manner consistent with the preceding paragraph,
take any corporate action or enter into any agreement which prohibits,
or otherwise limits the rights of any person to, indemnification in
accordance with the provisions of this by-law. The indemnification of
any person provided by this by-law shall continue after such person
<PAGE>14
has ceased to be a director or officer of the Corporation and shall
inure to the benefit of such person's heirs, executors, administrators
and legal representatives.
The Corporation is authorized to enter into agreements with
any of its directors, officers or employees extending rights to
indemnification and advancement of expenses to such person to the
fullest extent permitted by applicable law, but the failure to enter
into any such agreement shall not affect or limit the rights of such
person pursuant to this by-law. It is hereby expressly recognized
that all directors and officers of the Corporation, by serving as such
after the adoption hereof, are acting in reliance hereon and that the
Corporation is estopped to contend otherwise. Additionally, it is
hereby expressly recognized that all persons who serve or served as
directors, officers or employees of corporations which are
subsidiaries or affiliates of the Corporation (or other entities
controlled by the Corporation) and are directors or officers of the
Corporation are conclusively presumed to serve or have served as such
at the request of the Corporation and, to the extent permitted by law,
are entitled to indemnification hereunder, but that no such person
shall have any rights hereunder or in connection herewith, except to
the extent that indemnification hereunder is permitted by law.
In case any provision in this by-law shall be determined at
any time to be unenforceable in any respect, the other provisions
shall not in any way be affected or impaired thereby, and the affected
provision shall be given the fullest possible enforcement in the
circumstances, it being the intention of the Corporation to afford
indemnification and advancement of expenses to its directors and
officers, acting in such capacities or in the other capacities
mentioned herein, to the fullest extent permitted by law.
For purposes of this by-law, the Corporation shall be deemed
to have requested a director or officer of the Corporation to serve an
employee benefit plan where the performance by such person of his or
her duties to the Corporation also imposes duties on, or otherwise
involves services by, such person to the plan or participants or
<PAGE>15
beneficiaries of the plan, and excise taxes assessed on a person with
respect to an employee benefit plan pursuant to applicable law shall
be considered indemnifiable expenses. For purposes of this by-law,
the term "Corporation" shall include any legal successor to the
Corporation, including any corporation which acquires all or
substantially all of the assets of the Corporation in one or more
transactions.
A person who has been successful, on the merits or otherwise,
in the defense of a civil or criminal action or proceeding of the
character described in the first paragraph of this by-law shall be
entitled to indemnification as authorized in such paragraph. Except
as provided in the preceding sentence and unless ordered by a court,
any indemnification under this by-law shall be made by the Corporation
if, and only if, authorized in the specific case:
(l) By the Board of Directors acting by a quorum consisting of
directors who are not parties to such action or proceeding
upon a finding that the director or officer has met the
standard of conduct set forth in the first paragraph of this
by-law, or,
(2) If such a quorum is not obtainable or, even if obtainable, a
quorum of disinterested directors so directs:
(a) By the Board of Directors upon the opinion in writing
of independent legal counsel that indemnification is
proper in the circumstances because the standard of
conduct set forth in the first paragraph of this by-law
has been met by such director or officer, or
(b) By the shareholders upon a finding that the director or
officer has met the applicable standard of conduct set
forth in such paragraph.
If any action with respect to indemnification of directors
and officers is taken by way of amendment of these by-laws, resolution
of directors, or by agreement, the Corporation shall, not later than
the next annual meeting of shareholders, unless such meeting is held
within three months from the date of such action and, in any event,
within fifteen months from the date of such action, mail to its
shareholders of record at the time entitled to vote for the election
of directors a statement specifying the action taken.
SECTION 13. Action by Written Consent. Any action required
or permitted to be taken at any meeting of the Board of Directors or
<PAGE>16
any Committee thereof may be taken without a meeting if all members of
the Board or Committee as the case may be, consent thereto in writing,
to the adoption of a resolution authorizing the action and such
resolution and the written consents thereto are filed with the minutes
of the proceedings of the Board or Committee.
ARTICLE III
Officers
SECTION 1. Officer. The Board of Directors, as soon as may
be practicable after the annual election of directors, shall elect a
Chairman of the Board, a President, one or more Vice Presidents, a
Secretary and a Treasurer, and from time to time may elect or appoint
such other officers as it may deem advisable. Any two or more offices
may be held by the same person, except that the same person may not
hold the offices of President and Secretary.
SECTION 2. Term of Office and Removal. Each officer shall hold
office for the term for which he is elected or appointed, and until
his successor has been elected or appointed and qualified. Unless
otherwise provided in the resolution of the Board of Directors
electing or appointing an officer, his term of office shall extend to
and expire at the meeting of the Board following the next annual
meeting of shareholders. Any officer may be removed by the Board,
with or without cause, at any time. Removal of an officer without
cause shall be without prejudice to his contract rights, if any, and
the election or appointment of an officer shall not of itself create
contract rights.
SECTION 3. Powers and Duties. The Chairman of the Board shall
preside at all meetings of shareholders and of the Board of Directors
and shall, unless otherwise prescribed by the Board of Directors, be
the Chief Executive Officer of the Corporation. All the other
officers of the Corporation shall have such authority and perform such
duties in the management of the Corporation, as may be prescribed by
the Board of Directors and, to the extent not so prescribed, they
<PAGE>17
shall have such authority and perform such duties in the management of
the Corporation, subject to the control of the Board, as generally
pertain to their respective offices. Securities of other corporations
held by the Corporation may be voted by the Chairman of the Board or
by another officer designated by the Board and, in the absence of any
such designation, by the President, any Vice President, the Secretary
or the Treasurer. The Board may require any officer, agent or
employee to give security for the faithful performance of his duties.
SECTION 4. Books to be Kept. The Corporation shall keep (a)
correct and complete books and records of account, (b) minutes of the
proceeding of the shareholders, Board of Directors and any committees
of directors, and (c) a current list of the directors and officers and
their residence addresses; and the Corporation shall also keep at its
office in the State of New York or at the office of its transfer agent
or registrar in the State of New York, if any, a record containing the
name and addresses of all shareholders, the number and class of shares
held by each and the dates when they respectively became the owners of
record thereof.
The Board of Directors may determine whether and to what extent
and at what times and places and under what conditions and regulations
any accounts, books, records or other documents of the Corporation
shall be open to inspection, and no creditor, security holder or other
person shall have any right to inspect any accounts, books, records or
other documents of the Corporation except as conferred by statute or
as so authorized by the Board.
SECTION 5. Checks, Notes, etc. All checks and drafts on, and
withdrawals from, the Corporation's accounts with banks or other
financial institutions, and all bills of exchange, notes and other
instruments for the payment of money, drawn, made, endorsed, or
accepted by the Corporation, shall be signed on its behalf by the
person or persons thereunto authorized by, or pursuant to resolution
of, the Board of Directors.
<PAGE>18
ARTICLE IV
Forms of Certificates and Loss and
Transfer of Shares
SECTION 1. Forms of Share Certificates. The shares of the
Corporation shall be represented by certificates, in such forms as the
Board of Directors may prescribe, signed by the Chairman or a
Vice-Chairman of the Board or the President or a Vice President and
the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer, and may be sealed with the seal of the
Corporation or a facsimile thereof. The signatures of the officers
upon a certificate may be facsimiles if the certificate is
countersigned by a transfer agent or registered by a registrar other
than the Corporation or its employee. In case any officer who has
signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer before such certificate is
issued, it may be issued by the Corporation with the same effect as if
he were such officer at the date of issue.
Each certificate representing shares issued by the
Corporation shall set forth upon the face or back of the certificate,
or shall state that the Corporation will furnish to any shareholder
upon request and without charge, a full statement of the designation,
relative rights, preferences and limitations of the shares of each
class of shares, if more than one, authorized to be issued and the
designation, relative rights, preferences and limitations of each
series of any class of preferred shares authorized to be issued so far
as the same have been fixed and the authority of the Board of
Directors to designate and fix the relative rights, preferences and
limitations of other series.
Each certificate representing shares shall state upon the
face thereof:
(1) That the Corporation is formed under the laws of the
State of New York;
<PAGE>19
(2) The name of the person or persons to whom issued; and
(3) The number and class of shares, and the designation of
the series, if any, which such certificate represents.
SECTION 2. Transfers of Shares. Shares of the Corporation
shall be transferable on the record of shareholders upon presentment
to the Corporation or a transfer agent of a certificate or
certificates representing the shares requested to be transferred, with
proper endorsement on the certificate or on a separate accompanying
document, together with such evidence of the payment of transfer
taxes and compliance with other provisions of law as the Corporation
or its transfer agent may require.
SECTION 3. Lost, Stolen or Destroyed Share Certificates. No
certificate for shares of the Corporation shall be issued in place of
any certificate alleged to have been lost, destroyed or wrongfully
taken, except, if and to the extent required by the Board of
Directors, upon:
(1) Production of evidence of loss, destruction or wrongful
taking;
(2) Delivery of a bond indemnifying the Corporation and its
agents against any claim that may be made against it or
them on account of the alleged loss, destruction or
wrongful taking of the replaced certificate or the
issuance of the new certificate;
(3) Payment of the expenses of the Corporation and its
agents incurred in connection with the issuance of the
certificate; and
(4) Compliance with such other reasonable requirements as
may be imposed.
ARTICLE V
Other Matters
SECTION 1. Corporate Seal. The Board of Directors may adopt
a corporate seal, alter such seal at pleasure, and authorize it to be
<PAGE>20
used by causing it or a facsimile to be affixed or impressed or
reproduced in any other manner.
SECTION 2. Fiscal Year. The fiscal year of the Corporation
shall be the calendar year or such other period as may be fixed by the
Board of Directors.
SECTION 3. Amendments. By-Laws of the Corporation may be
adopted, amended or repealed by vote of the holders of shares at the
time entitled to vote in the election of directors, and By-Laws may
also be adopted, amended or repealed by the Board of Directors,
provided that any by-law adopted by the Board may be amended or
repealed by the shareholders entitled to vote thereon as hereinabove
provided, and, provided further, that Section 3 of Article II and this
paragraph of Section 3 of Article V may not be altered, amended or
repealed, or new by-laws inconsistent therewith be adopted, except as
provided in Article Seventh of the Certificate of Incorporation of the
Corporation.
If any by-law regulating an impending election of directors
is adopted, amended or repealed by the Board of Directors, there shall
be set forth in the notice of the next meeting of shareholders for the
election of directors the by-law so adopted, amended or repealed,
together with a concise statement of the changes made.
-----------------------------------------
<PAGE>1
_______________________________________________________________
AMENDED AND RESTATED
RIGHTS AGREEMENT
dated as of
June 24, 1986
and amended and restated
as of January 24, 1989
and as further amended and restated
as of September 27, 1994
between
USLIFE CORPORATION
and
CHEMICAL BANK
as successor by merger to
MANUFACTURERS HANOVER TRUST COMPANY,
as Rights Agent
______________________________________________________________
<PAGE>2
AMENDED AND RESTATED
RIGHTS AGREEMENT
Table of Contents
Page
Article I
CERTAIN DEFINITIONS
Section 1.1 Certain Definitions .................................. 5
Article II
THE RIGHTS
Section 2.1 Summary of Rights ................................... 11
Section 2.2 Legend on Common Stock
Certificates .................................. 12
Section 2.3 Detachment and Exercise ............................. 12
Section 2.4 Exercise Price; Number of Rights .................... 15
Section 2.5 Date on Which Exercise is
Effective ..................................... 18
Section 2.6 Execution, Authentication, Delivery
and Dating of Rights
Certificates .................................. 18
Section 2.7 Registration, Registration of
Transfer and Exchange ......................... 19
Section 2.8 Mutilated, Destroyed, Lost and
Stolen Rights Certificates .................... 21
Section 2.9 Persons Deemed Owners ............................... 21
Section 2.10 Delivery and Cancellation of
Certificates .................................. 22
Section 2.11 Agreement of Rights Holders ......................... 22
Article III
CERTAIN TRANSACTIONS
Section 3.1 Flip-over Transaction or Event ...................... 23
Section 3.2 Flip-in ............................................. 24
(i)
<PAGE>3
Article IV
THE RIGHTS AGENT
Section 4.1 General ............................................. 25
Section 4.2 Merger or Consolidation or Change of
Name of Rights Agent .......................... 26
Section 4.3 Duties of Rights Agent .............................. 27
Section 4.4 Change of Rights Agent .............................. 29
Article V
MISCELLANEOUS
Section 5.1 Redemption .......................................... 30
Section 5.2 Fractional Shares ................................... 30
Section 5.3 Expiration .......................................... 31
Section 5.4 Issuance of New Rights
Certificates .................................. 31
Section 5.5 Supplements and Amendments;
Interpretations ............................... 31
Section 5.6 Rights of Action .................................... 32
Section 5.7 Holder of Rights Not Deemed a
Shareholder ................................... 32
Section 5.8 Notice of Proposed Actions .......................... 32
Section 5.9 Notices ............................................. 33
Section 5.10 Costs of Enforcement ................................ 33
Section 5.11 Successors .......................................... 34
Section 5.12 Benefits of this Agreement .......................... 34
Section 5.13 Descriptive Headings ................................ 34
Section 5.14 Governing Law ....................................... 34
Section 5.15 Counterparts ........................................ 34
Section 5.16 Severability ........................................ 34
Section 5.17 Suspension of Exercisability ........................ 34
EXHIBITS
Exhibit A-1 Original Letter to Shareholders and Summary
of Terms
Exhibit A-2 Supplemental Letter to Shareholders and
Summary of Terms
Exhibit B Form of Rights Certificate
Exhibit C Section 912(a) of New York Business
Corporation Law
(ii)
<PAGE>4
AMENDED AND RESTATED
RIGHTS AGREEMENT
_______________________
AMENDED AND RESTATED RIGHTS AGREEMENT (this "Agreement"), dated as of
June 24, 1986 and amended and restated as of January 24, 1989, and as
further amended and restated as of September 27, 1994, between USLIFE
Corporation, a New York corporation (the "Company"), and Chemical Bank, a
New York corporation, and as successor by merger to Manufacturers Hanover
Trust Company, as Rights Agent (the "Rights Agent", which term shall
include any successor Rights Agent hereunder).
WHEREAS, the Board of Directors of the Company has authorized and
declared a dividend of one right ("Right") in respect of each outstanding
share of Common Stock, par value $1.00 per share (the "Common Stock"), of
the Company held of record as of the close of business on July 10, 1986 and
has authorized the issuance of one Right in respect of each share of Common
Stock which shall become issued and outstanding thereafter and prior to the
close of business on the Separation Date (as hereinafter defined);
WHEREAS, each Right entitles the holder thereof to purchase one half a
share of Common Stock of the Company (or, in certain cases, capital stock
of certain other entities) pursuant to the terms and subject to the
conditions set forth herein; and
WHEREAS, the Company and the Rights Agent have previously entered into
a Rights Agreement (the "Original Agreement") dated as of June 24, 1986,
pursuant to which the Company has appointed the Rights Agent to act on
behalf of the Company in connection with the issuance, transfer, exchange
and replacement of Rights Certificates (as hereinafter defined), the
exercise of Rights and other matters referred to herein;
WHEREAS, the Company and the Rights Agent desire to amend and restate
the terms and provisions of the Original Agreement as previously amended
and restated;
NOW, THEREFORE, in consideration of the premises and respective
agreements set forth herein, the parties hereby amend and restate the
Original Agreement as previously amended and restated in its entirety and
agree as follows:
<PAGE>5
Article I - Certain Definitions
_________ ___________________
1.1 Certain Definitions. For purposes of this Agreement, the
following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who is a Beneficial Owner
of 20% or more of the outstanding shares of Common Stock or 20% or more of
the outstanding shares of Voting Stock; provided, however, that the term
"Acquiring Person" shall not include the Company or any wholly-owned
subsidiary of the Company or any employee benefit plan established by any
of them and either in effect on the date hereof or hereafter approved by
the Disinterested Directors. For purposes of this subsection (a) in
determining the percentage of the outstanding shares of Common Stock or
Voting Stock with respect to which a Person is the Beneficial Owner, all
shares as to which such Person is deemed the Beneficial Owner shall be
deemed outstanding.
(b) "Affiliate and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 under the Securities Exchange Act of
1934, as in effect on the date of this Agreement; provided, however, that
the Company shall, for purposes of this definition, be deemed to be the
"registrant", as such term is used in such Rule.
(c) A Person shall be deemed the "Beneficial Owner", and to have
"Beneficial Ownership", of any securities as to which such Person or any of
such Person's Affiliates or Associates is or may be deemed to be the
beneficial owner pursuant to Rule 13d- 3 under the Securities Exchange Act
of 1934, as in effect on the date of this Agreement, as well as any
securities as to which such Person or any of such Person's Affiliates or
Associates has the right to become Beneficial Owner (whether such right is
exercisable immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding, or upon the exercise of conversion
rights, exchange rights, rights (other than the Rights), warrants or
options, or otherwise; provided, however, that a Person shall not be deemed
the "Beneficial Owner", or to have "Beneficial Ownership", of any security
(i) solely because such security has been tendered pursuant to a tender or
exchange offer made by such Person or any of such Person's Affiliates or
Associates until such tendered security is accepted for purchase or
exchange, (ii) solely because such Person or any of such Person's
Affiliates or Associates has or shares the power to vote or direct the
voting of such security pursuant to a revocable proxy given in response to
<PAGE>6
a public proxy or consent solicitation made pursuant to, and in accordance
with, the applicable rules and regulations of the Securities Exchange Act
of 1934, except if such power (or the arrangements relating thereto) is
then reportable under Item 6 of Schedule 13D under the Securities Exchange
Act of 1934 (or any similar provision of a comparable or successor report)
or (iii) held for or pursuant to the terms of any employee stock ownership
or other employee benefit plan of the Company or a wholly-owned subsidiary
of the Company and either in effect on the date hereof or hereafter
approved by the Disinterested Directors.
(d) "Business Day" shall mean any day other than a Saturday, Sunday or
a day on which banking institutions in the City of New York are generally
authorized or obligated by law or executive order to close.
(e) "Close of business" on any given date shall mean 5:00 P.M., New
York 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.
(f) "Disinterested Director" shall mean any member of the Board of
Directors who (i) is not, or as a result of the transaction to be voted
upon by the Board of Directors would not become, the Beneficial Owner of
20% or more of the outstanding shares of Common Stock or an officer,
director or employee of such Beneficial Owner, (ii) is not, or at any time
within the two year period immediately prior to the date of determination
of the status of such director, not an Affiliate or Associate of any Person
who is, or as a result of the transaction to be voted upon by the Board of
Directors would become, the Beneficial Owner of 20% or more of the then
outstanding shares of Common Stock or an officer, director or employee of
such Beneficial Owner, (iii) is not a partner, officer, director or nominee
of an organization that has a customary commercial, industrial, banking or
underwriting relationship with, and does not act on a regular basis as an
individual or representative of an organization serving as a professional
advisor, legal counsel or consultant to, any Person who is, or as a result
of the transaction to be voted upon by the Board of Directors would become,
the Beneficial Owner of 20% or more of the outstanding shares of Common
Stock or (iv) was not nominated to serve as a member of the Board of
Directors by any Person who is, or would become as a result of the
transaction to be voted upon by the Board of Directors, the Beneficial
Owner of 20% or more of the outstanding shares of Common Stock, it being
<PAGE>7
understood that no current director of the Company shall be deemed not to
be a Disinterested Director solely by reason of this clause (iv).
(g) "Exercise Price" shall mean as of any date the price at which a
holder may purchase the Common Stock issuable upon exercise of one whole
Right.
(h) "Expiration Date" shall mean the earlier of (i) July 10, 2006 or,
if the Separation Date occurs subsequent to July 10, 2003 but prior to July
10, 2006, the third anniversary of the Separation Date and (ii) the
Redemption Date.
(i) "Flip-in Date" shall mean the later of (i) the tenth day after the
Interested Shareholder Stock Acquisition Date (or such later date as may be
fixed by the Disinterested Directors by notice to the Rights Agent and
publicly announced by the Company not later than the third day prior to the
date which would otherwise be the Flip-in Date) and (ii) the Separation
Date.
(j) "Flip-over Transaction or Event" shall mean (A) a transaction, not
approved by the Disinterested Directors, in which, directly or indirectly,
the Company shall consolidate with, or merge with or into, any other Person
(other than a wholly-owned subsidiary of the Company), or any other Person
(other than a wholly-owned subsidiary of the Company) shall consolidate
with, or merge with or into, the Company, and, in connection therewith, all
or part of the outstanding shares of Common Stock shall be changed in any
way or converted into or exchanged for stock or other securities or cash or
any other property, (B) a transaction or series of transactions, not
approved by the Disinterested Directors, in which, directly or indirectly,
the Company shall sell or otherwise transfer (or one or more of its
subsidiaries shall sell or otherwise transfer) assets (i) aggregating more
than 50% of the assets (measured by book value), (ii) aggregating more than
50% of the assets (measured by fair market value) or (iii) generating more
than 50% of the operating income or cash flow, of the Company and its
subsidiaries (taken as a whole) to any other Person (other than the Company
or one or more of its wholly-owned subsidiaries) or to two or more such
Persons which are affiliated, (C) whether or not approved by Disinterested
Directors or otherwise covered by clauses (A) or (B) above, a transaction,
or series of transactions occurring within 12 calendar months, in which,
directly or indirectly, any Acquiring Person, or any Affiliate or Associate
of any such Acquiring Person (other than the Company or a wholly-owned
subsidiary of the Company), shall (i) consolidate or merge with the
Company, (ii) together with all other such persons obtain from the Company,
<PAGE>8
with or without consideration, any additional shares of any class of
capital stock of the Company or any of its subsidiaries equal in the
aggregate to more than 1% of the outstanding shares of such class, or
securities exercisable or exchangeable for or convertible into more than 1%
of the authorized or outstanding shares of any class of capital stock of
the Company or any of its subsidiaries (in each case other than as part of
a pro rata distribution to all holders of such stock or pursuant to the
exercise of rights or warrants, or the conversion or exchange of
securities, issued pro rata in such a distribution), (iii) together with
all other such persons sell, purchase, lease, exchange, mortgage, pledge,
transfer or otherwise acquire or dispose of, to, from, or with, as the case
may be, the Company or any of its subsidiaries, assets (x) having an
aggregate fair market value of more than $25,000,000 or (y) on terms and
conditions less favorable to the Company than the Company would be able to
obtain through arms-length negotiations with an unaffiliated third party,
(iv) receive any compensation for services from the Company and any of its
subsidiaries exceeding $10,000, other than compensation for full-time
employment as a regular employee at rates in accordance with the Company's
(or its subsidiaries') past practices, or (v) together with all such other
persons receive the benefit, directly or indirectly (except proportionately
as a shareholder), of any loans, advances, guarantees, pledges, insurance,
reinsurance or other financial assistance or any tax credits or other tax
advantage provided by the Company or any of its subsidiaries involving an
aggregate principal amount in excess of $5,000,000, an aggregate policy
face amount in excess of $10,000,000 or a cost or transfer of benefits from
the Company in excess of $5,000,000 or, in any case, on terms and
conditions less favorable to the Company than the Company would be able to
obtain through arm's-length negotiations with a third party, or (D) during
such time as there is an Acquiring Person, unless approved by the
Disinterested Directors, any reclassification of securities (including any
reverse stock split), or recapitalization, of the Company, or any merger or
consolidation of the Company with any of its subsidiaries or any other
transaction or series of transactions (whether or not with or into or
otherwise involving an Acquiring Person), which has the effect, directly or
indirectly, of increasing by more than 1% the proportionate share of the
outstanding shares of any class of equity or convertible securities of the
Company or any of its subsidiaries which is directly or indirectly owned by
any Acquiring Person or any Affiliate or Associate of any Acquiring Person.
<PAGE>9
(k) "Interested Shareholder Acquiring Person" means any Acquiring
Person who is an "interested shareholder" in reference to the Company
within the meaning of Section 912(a) of the New York Business Corporation
Law as in effect on January 24, 1989 (a copy of Section 912(a) as so in
effect being attached hereto as Exhibit C).
(l) "Interested Shareholder Stock Acquisition Date" shall mean the
Stock Acquisition Date if the Person who has become an Acquiring Person is
an Interested Shareholder Acquiring Person and became such other than as a
result of a Flip-over Transaction or Event that is described in clause (A)
of the definition of "Flip-over Transaction or Event".
(m) "Market Price" per share of any securities on any date of
determination shall mean the average of the daily closing prices per share
of such securities (determined as described below) on each of the 20
consecutive Trading Days through and including the Trading Day immediately
preceding such date; provided, however, that if an event of a type
analogous to any of the events described in Section 2.4 hereof shall have
caused the closing prices used to determine the Market Price on any Trading
Days not to be fully comparable with the closing price on such date of
determination, each such closing price so used shall be appropriately
adjusted in a manner analogous to the applicable adjustment provided for in
Section 2.4 hereof in order to make it fully comparable with the closing
price on such date of determination. The closing price per share of any
securities on any date shall be the last sale price, regular way, or, in
case no such sale takes place on such date, the average of the closing bid
and asked prices, regular way, for each share of such securities, 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 securities 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 securities are listed
or admitted to trading or, if the securities are not listed or admitted to
trading on any national securities exchange, the average of the high and
low sale prices for each share of such securities in the National Market
System of the National Association of Securities Dealers, Inc. Automated
Quotation System ("NASDAQ") or, if the securities are not traded on such
National Market System, the average of the high bid and low asked prices
for each share of securities in the over-the-counter market, as reported by
NASDAQ; provided, however, that if on any such date the securities are not
<PAGE>10
quoted by any such organization, or if the securities are not listed or
admitted for trading on a national securities exchange or traded on such
National Market System or otherwise in the over-the-counter market, the
closing price per share of such securities on such date shall mean the fair
value per share of such securities on such date as determined in good faith
by the Board of Directors of the Company.
(n) "Person" shall mean any individual, firm, partnership,
association, group (as such term is used in Rule 13d-5 under the Securities
Exchange Act of 1934, as in effect on the date of this Agreement),
corporation or other entity.
(o) "Publicly Traded Common Stock" of any Person shall mean common
stock of such Person which, prior to issuance pursuant to this Agreement,
is listed or admitted to trading on the New York Stock Exchange, another
national securities exchange or the NASDAQ National Market System,
provided, however, that (i) (except for purposes of Section 2.4(e)) the
Common Stock and (ii) the common stock of (A) any subsidiary of the Company
or any successor by merger, consolidation, sale of assets or otherwise of
the Company or any of its subsidiaries, or (B) any subsidiary of any Person
(other than the Company and any of its subsidiaries and any such successor)
having Publicly Traded Common Stock, shall not be deemed to be "Publicly
Traded Common Stock".
(p) "Record Date" shall mean the close of business on July 10, 1986.
(q) "Redemption Date" shall mean the date selected by the Board of
Directors which is at least two days following the giving of the written
notice referred to in Section 5.1 hereof (or, in the case of a redemption
pursuant to the second proviso to the first sentence of Section 5.1 hereof,
the Trading Day immediately preceding the date the merger, consolidation,
sale or transfer referred to therein is effected).
(r) "Redemption Price" shall mean an amount equal to the Exercise
Price, as in effect on the Redemption Date, divided by 1500.
(s) "Separation Date" shall mean the tenth day (or such later date as
may be fixed by the Disinterested Directors by notice to the Rights Agent
and publicly announced by the Company not later than the third day prior to
the date which would otherwise be the Separation Date) after the earlier of
(i) the Stock Acquisition Date or (ii) the date of the commencement of, or
first public announcement of the intent of any Person (other than the
<PAGE>11
Company, any wholly-owned subsidiary of the Company, or any employee stock
ownership or other employee benefit plan of the Company or any wholly-owned
subsidiary of the Company in effect on the date hereof or hereafter
approved by the Disinterested Directors) to commence, a tender or exchange
offer to acquire (when added to any shares as to which such Person is the
Beneficial Owner immediately prior to such tender or exchange offer)
Beneficial Ownership of 20% or more of the outstanding shares of Common
Stock, provided that if the foregoing results in the Separation Date being
prior to the Record Date, the Separation Date shall be the Record Date. If
the Disinterested Directors defer the Separation Date, the Company will
cause the Rights Agent to give notice thereof in the manner provided in
Section 5.1, except that notice need not be sent to holders of Rights if
the date is not deferred for more than ten days from the previously
established Separation Date.
(t) "Stock Acquisition Date" shall mean the first date of public
announcement that an Acquiring Person has become such (whether such
announcement is given by such Acquiring Person or the Company or
otherwise).
(u) "Trading Day", when used with respect to any securities, shall
mean a day on which the principal national securities exchange on which
such securities are listed or admitted to trading is open for the
transaction of business or, if the securities are not listed or admitted to
trading on any national securities exchange, a Business Day.
(v) "Voting Stock" means shares of capital stock of the Company
entitled to vote generally in the election of directors.
Article II - The Rights
__________ __________
2.1 Summary of Rights. On or prior to the Record Date, or as soon
thereafter as practicable, the Company will mail a copy of an explanatory
letter to shareholders and Summary of Terms, in substantially the form of
Exhibit A-1 hereto, to each holder of record of Common Stock as of the
close of business on such Record Date, at such holder's address as shown by
the records of the Company. On or before May 1, 1989, the Company will
send a copy of an explanatory letter to shareholders and Summary of Terms,
in substantially the Form of Exhibit A-2 hereto, to each holder of record
of Common Stock as of a date set by the Board of Directors, at such
holder's address as shown by the records of the Company.
<PAGE>12
2.2 Legend on Common Stock Certificates. Common Stock certificates
representing issued and outstanding shares of Common Stock that are issued
after the Record Date but prior to the close of business on the earlier of
the Separation Date or the Expiration Date shall evidence one Right for
each share of Common Stock represented thereby and shall have impressed on,
printed on, written on or otherwise affixed to them the following legend:
Until the close of business on the Separation Date (as defined in the
Rights Agreement referred to below), this certificate also evidences
and entitles the holder hereof to certain Rights as set forth in a
Rights Agreement, dated as of June 24, 1986 (the "Rights Agreement"),
between USLIFE Corporation and Manufacturers Hanover Trust Company as
Rights Agent, the terms of which are hereby incorporated herein by
reference and a copy of which is on file at the principal executive
offices of USLIFE Corporation. Under certain circumstances, as set
forth in the Rights Agreement, such Rights may be redeemed, may
expire, or may be evidenced by separate certificates and no longer be
evidenced by this certificate. USLIFE Corporation will mail or
arrange for the mailing of a copy of the Rights Agreement to the
holder of this certificate without charge within five days after the
receipt of a written request therefor.
Common Stock certificates representing shares of Common Stock that are
issued and outstanding on the Record Date shall evidence one Right for each
share evidenced thereby despite the absence of the foregoing legend.
2.3 Detachment and Exercise. (a) Until the close of business on the
Separation Date, (i) no Right may be exercised and (ii) each Right will be
evidenced by the certificate for the associated share of Common Stock and
will be transferable only together with, and will be transferred by a
transfer of, such associated share. Notwithstanding any other provision of
this Agreement, no Rights will exist with respect to shares of Common Stock
held as treasury shares by the Company, whether or not evidenced by a
certificate, and Rights relating to shares of Common Stock acquired and
held as treasury shares by the Company subsequent to the Record Date and
prior to the close of business on the Separation Date shall be
automatically cancelled by and upon such acquisition.
(b) After the close of business on the Separation Date and prior to
the close of business on the Expiration Date, subject to Section 3.2(b),
the Rights (i) may be exercised and (ii) will be transferable independently
of shares of Common Stock. Promptly upon being notified by the Company of
the Separation Date and receipt of (x) the Rights Certificates (as defined
below) pursuant to Section 2.6(a) and (y) if the Rights Agent is not then
<PAGE>13
the registrar and transfer agent of the Common Stock, a list of all holders
of Common Stock as of the close of business on the Separation Date, the
Rights Agent will mail to each holder of record of Common Stock as of the
close of business on the Separation Date, at such holder's address as shown
by the records of the Company, (1) a certificate (a "Rights Certificate")
in substantially the form of Exhibit B hereto appropriately completed,
representing the number of Rights held by such holder at the close of
business on the Separation Date and having such marks of identification or
designation and such legends, summaries or endorsements printed thereon as
the Company may deem appropriate and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law
or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange or quotation system on which the Rights
may from time to time be listed or traded, or to conform to usage, and (2)
a disclosure statement describing the Rights (which disclosure statement
shall contain all information required by securities and other laws, rules
and regulations applicable to the Rights and the purchase of Common Stock
upon exercise of Rights).
(c) Subject to Section 3.2(b), Rights may be exercised (each Right
being exercisable in whole but not in part) at any time after the close of
business on the Separation Date and prior to the close of business on the
Expiration Date by submitting to the Rights Agent the Rights Certificate
evidencing such Rights with an Election to Exercise (an "Election to
Exercise") substantially in the form attached to the Rights Certificate
duly completed, accompanied by payment in cash, or by certified check or
bank draft payable to the order of the Company, of the Exercise Price times
the number of Rights being exercised and a sum sufficient to cover any
transfer tax or charge which may be payable in respect of any transfer
involved in the transfer or delivery of Rights Certificates or the issuance
or delivery of certificates for Common Stock in a name other than that of
the holder of the Rights being exercised.
(d) Upon receipt of a Rights Certificate, with an Election to Exercise
accompanied by payment as set forth in Section 2.3(c) above, the Rights
Agent will thereupon promptly (i) requisition from the Company (the Company
hereby agreeing to comply with all such requisitions) the number of whole
and, subject to Section 5.2 hereof, fractional shares of Common Stock being
purchased, (ii) at the election of the Company, as provided in Section 5.2
hereof, cause a cash payment to be made in lieu of fractional shares of
Common Stock being purchased or decline to accept for exercise and return
to the holder sufficient Rights so that the remaining Rights presented for
<PAGE>14
exercise do not require the issuance of or payment for fractional shares,
and (iii) after receipt of such Common Stock certificates and/or cash
payments, cause the same to be delivered to or upon the order of the holder
of the Rights being exercised, registered in such name or names as may be
designated by such holder.
(e) In case the holder of any Rights shall exercise less than all the
Rights evidenced by such holder's Rights Certificate, a new Rights
Certificate evidencing the Rights remaining unexercised will be issued by
the Rights Agent to such holder or to such holder's duly authorized
assigns.
(f) The Company covenants and agrees that it will (i) cause to be
reserved and kept available out of its authorized and unissued or treasury
shares of Common Stock a number of shares of Common Stock that will be
sufficient to permit the exercise in full of all outstanding Rights
pursuant to Section 2.4(a); (ii) take all such action as may be necessary
to insure that all shares of Common Stock delivered upon exercise of Rights
shall, at the time of delivery of the certificates for such shares (subject
to payment of the Exercise Price for such Rights), be duly and validly
authorized, executed, issued and delivered and fully paid and
nonassessable; (iii) take all such action as may be necessary to comply
with any applicable requirements of the Securities Act of 1933 or the
Securities Exchange Act of 1934, and the rules and regulations thereunder,
and any other applicable law, rule and regulation, including without
limitation State securities laws, in connection with the issuance of the
Rights and any shares of Common Stock upon exercise of the Rights; (iv) if
and for so long as any shares of Common Stock are listed on any national
securities exchange, use its best efforts to cause all shares of Common
Stock issued upon exercise of Rights to be listed on such exchange upon
issuance; and (v) pay when due and payable any and all federal and state
transfer taxes and charges which may be payable in respect of the original
issuance or delivery of the Rights Certificates or of any shares of Common
Stock issued upon the exercise of Rights, provided that the Company shall
not be required to pay any transfer tax or charge which may be payable in
respect of any transfer involved in the transfer or delivery of Rights
Certificates or the issuance or delivery of certificates for shares of
Common Stock in a name other than that of the holder of the Rights being
transferred or exercised.
<PAGE>15
2.4 Exercise Price; Number of Rights.
(a) Subject to Section 5.2 and to adjustment as set forth below, each
Right will entitle the holder thereof to purchase, for $160, one half of a
share of Common Stock. Shares of Common Stock issuable upon exercise of
Rights may be authorized but unissued shares or treasury shares.
(b) In the event the Company shall at any time after the Record Date
and prior to the close of business on the Separation Date (i) declare or
pay a dividend on Common Stock payable in Common Stock (or other capital
stock), (ii) subdivide the outstanding Common Stock, (iii) combine the
outstanding Common Stock into a smaller number of shares of Common Stock or
(iv) issue or distribute in a reclassification, merger or consolidation any
shares of Common Stock (or other capital stock) in respect of or in lieu of
existing Common Stock, the Exercise Price and the number of Rights
outstanding shall be adjusted. Each Right outstanding after such
adjustment will be exercisable at an Exercise Price equal to the Exercise
Price in effect immediately prior to such adjustment divided by the number
of shares of Common Stock (and/or other capital stock) (the "Expansion
Factor") that a holder of one share of Common Stock prior to such dividend,
subdivision, combination or issuance would hold thereafter. Each Right
held prior to such adjustment will become that number of Rights equal to
the Expansion Factor, and the adjusted number of Rights will be deemed to
be distributed among the shares of Common Stock with respect to which the
original Rights were associated (if they remain outstanding) and the shares
issued in respect of such Common Stock as a result of such dividend,
subdivision, combination or issuance, so that each such share of Common
Stock (or other capital stock) will have exactly one Right associated with
it. If after the Record Date and prior to the close of business on the
Separation Date the Company shall issue or distribute any shares of capital
stock other than Common Stock in a transaction of a type described in the
first sentence of this Section 2.4(b), the Company agrees to amend this
Agreement in order to provide, and will not merge with or into or
consolidate with any other Person unless such Person agrees to be bound by
the terms of an amendment providing, that shares of such capital stock are
treated herein as nearly equivalent to shares of Common Stock as may be
practicable and appropriate under the circumstances.
In the event the Company shall at any time after the Record Date and
prior to the close of business on the Separation Date issue or distribute
any shares of Common Stock otherwise than in a transaction referred to in
<PAGE>16
the preceding paragraph, each such share of Common Stock so issued or
distributed shall automatically have one new Right associated with it,
which Right shall be evidenced by the certificate representing such share.
(c) In the event the Company shall at any time after the close of
business on the Record Date and prior to the close of business on the
Separation Date fix a record date for the making of a distribution to all
holders of Common Stock of rights or warrants entitling them (for a period
expiring within 45 calendar days after such record date) to subscribe for
or purchase Common Stock (or securities convertible into Common Stock) at a
price per share of Common Stock (or, if a security convertible into Common
Stock, having a conversion price (including the price required to be paid
to purchase such convertible security) per share less than the Market Price
per share of Common Stock on such record date, the Exercise Price shall be
adjusted. The Exercise Price in effect after such record date will equal
the Exercise Price in effect immediately prior to such record date
multiplied by a fraction, of which the numerator shall be the number of
shares of Common Stock outstanding on such record date plus the number of
shares of Common Stock which the aggregate offering price of the total
number of shares of Common Stock so to be offered (and/or the aggregate
initial conversion price of the convertible securities so to be offered
(including the price required to be paid to purchase such convertible
securities) would purchase at such Market Price and of which the
denominator shall be the number of shares of Common Stock outstanding on
such record date plus the number of additional shares of Common 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 in a consideration part or all of which
shall be in a form other than cash, the value of such consideration shall
be as determined in good faith by the Board of Directors of the Company.
For purposes of this Agreement, the granting of the right to purchase
shares of Common Stock (whether from treasury shares or otherwise) pursuant
to any dividend or interest reinvestment plan and/or any Common Stock
purchase plan providing for the reinvestment of dividends or interest
payable on securities of the Company and/or the investment of periodic
optional payments and/or employee benefit or similar plans (so long as such
right to purchase is in no case evidenced by the delivery of rights or
warrants) shall not be deemed to constitute an issue of rights or warrants
by the Company; provided, however, that, in the case of any dividend or
<PAGE>17
interest reinvestment plan, the right to purchase shares of Common Stock is
at a price pr share of not less than 90 percent of the current market price
per share (determined as provided in such plans) of the Common Stock.
d) In the event the Company shall at any time after the close of
business on the Record Date and prior to the close of business on the
Separation Date fix a record date for the making of a distribution to all
holders of Common Stock of evidences of indebtedness or assets (other than
a regular periodic cash dividend payable at a rate not in excess of 125% of
the rate of the last cash dividend for a comparable period theretofore paid
or a dividend in Common Stock) or rights or warrants (excluding those
referred to in Section 2.4(c)), the Exercise Price shall be adjusted. The
Exercise Price in effect after such record date will equal the Exercise
Price in effect immediately prior to such record date less the fair market
value (as determined in good faith by the Board of Directors of the
Company) of the portion of the assets, evidences of indebtedness, rights or
warrants so to be distributed applicable to one share of Common Stock.
(e) In the event that the Company shall at any time after the close of
business on the Record Date and prior to the close of business on the
Separation Date merge, consolidate or engage in any other reorganization
with any other Person and as a result thereof the Company does not
thereafter have outstanding Publicly Traded Common Stock, the Board of
Directors may make such adjustment, in one or more of the Exercise Price,
the number of Rights outstanding, and the securities issuable or
deliverable to a holder upon exercise of Rights, as the Board of Directors
shall determine to be appropriate under the circumstances to provide
holders of Rights with substantially equivalent benefits upon exercise of
Rights as they had prior to such merger, consolidation or reorganization.
(f) Each adjustment made pursuant to this Section 2.4 shall be made as
of (i) the record date for the applicable dividend or distribution, in the
case of an adjustment made pursuant to subsection(c) or (d) above, (ii) the
payment or effective date for the applicable dividend, subdivision,
combination, issuance or distribution, in the case of an adjustment made
pursuant to subsection (b) above, and (iii) the date as determined by the
Disinterested Directors in the case of an adjustment made pursuant to
subsection (e) above.
(g) Following the close of business on the Separation Date, no new
Rights shall be issued with or in respect of shares of Common Stock issued
or distributed by the Company. In the event that the Company shall at any
time after the close of business on the Separation Date and prior to the
<PAGE>18
close of business on the Expiration Date take any of the actions described
in subsections (b), (c) or (d) above, the portion of a share, or number of
shares, of Common Stock issuable upon exercise of a Right shall be adjusted
in each such instance, effective as of the date on which an adjustment
pursuant to such subsections would be made pursuant to subsection (f)
above. The portion of a share, or number of shares, of Common Stock as so
adjusted in each instance will equal such portion or number of shares
issuable upon exercise of a Right prior thereto multiplied by a fraction,
of which the numerator shall be the Exercise Price which would be in effect
immediately prior to such adjustment if such Exercise Price had continued
to be adjusted after the Separation Date in accordance with subsections
(b), (c) and (d) above and the denominator of which shall be such Exercise
Price as it would be further adjusted pursuant to subsections (b), (c) or
(d), as the case may be, by reason of the action by the Company giving rise
to the current adjustment if those subsections applied to transactions
after the Separation Date.
(h) Each adjustment made to the Exercise Price pursuant to this
Section 2.4 shall be calculated to the nearest cent. Whenever an adjustment
is made pursuant to this Section 2.4, the Company shall (i) promptly
prepare a certificate setting forth such adjustment and a brief statement
of the facts accounting for such adjustment, (ii) promptly file with the
Rights Agent and with each transfer agent for the Common Stock a copy of
such certificate and (iii) mail a brief summary thereof to each holder of
Rights.
2.5 Date on Which Exercise is Effective. Each person in whose name
any certificate for shares of Common Stock is issued upon the exercise of
Rights shall for all purposes be deemed to have become the holder of record
of the shares of Common Stock 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 Exercise Price for such
Rights (and any applicable taxes and other governmental charges payable by
the exercising holder hereunder) was made; provided, however, that if the
date of such surrender and payment is a date upon which the Common Stock
transfer books of the Company are closed, such person shall be deemed to
have become the record holder of such shares on, and such certificate shall
be dated, the next succeeding Business Day on which the Common Stock
transfer books of the Company are open.
2.6 Execution, Authentication, Delivery and Dating of Rights
Certificates. (a) The Rights Certificates shall be executed on behalf of
<PAGE>19
the Company by its Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of
these officers on the Rights Certificates may be manual or facsimile.
Rights Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the countersignature and delivery of
such Rights Certificates.
Promptly after the Company learns of the Separation Date, the Company
will notify the Rights Agent of such Separation Date and will deliver
Rights Certificates executed by the Company to the Rights Agent for
countersignature, and the Rights Agent shall manually countersign and
deliver such Rights Certificates to the holders of the Rights pursuant to
Section 2.3(b) hereof. No Rights Certificate shall be valid for any
purpose until manually countersigned by the Rights Agent.
(b) Each Rights Certificate shall be dated the Record Date.
2.7 Registration, Registration of Transfer and Exchange. (a) The
Company will cause to be kept a register (the "Rights Register") in which,
subject to such reasonable regulations as it may prescribe, the Company
will provide for the registration of Rights and of transfers of Rights.
The Rights Agent is hereby appointed "Rights Registrar" for the purpose of
registering Rights and transfers of Rights as herein provided. In the
event that the Rights Agent shall cease to be the Rights Registrar, the
Rights Agent will have the right to examine the Rights Register at all
reasonable times.
After the Separation Date and prior to the close of business on the
Expiration Date, upon surrender for registration of transfer or exchange of
any Rights Certificate, and subject to the provisions of Section 2.7(c)
below, the Company will execute, and the Rights Agent will countersign and
deliver, in the name of the holder or the designated transferee or
transferees, as required pursuant to the holder's instructions, one or more
new Rights Certificates evidencing the same aggregate number of Rights as
did the Rights Certificate so surrendered.
(b) All Rights issued upon any registration of transfer or exchange of
Rights Certificates shall be the valid obligations of the Company, and,
subject to the provisions of Section 2.7(e) and Section 3.2(b), such Rights
<PAGE>20
shall be entitled to the same benefits under this Agreement as the Rights
surrendered upon such registration of transfer or exchange.
(c) Every Rights Certificate surrendered for registration of transfer
or exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company or the Rights
Agent, as the case may be, duly executed by the holder thereof or such
holder's attorney duly authorized in writing. As a condition to the
issuance of any new Rights Certificate under this Section 2.7, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto.
(d) The Company shall not be required to register the transfer of or
exchange any Rights after the Rights have been called for redemption under
Section 5.1 hereof.
(e) If any Rights Certificate is surrendered for registration of
transfer or exchange after the close of business on the Interested
Shareholder Stock Acquisition Date and the holder thereof has not duly
completed the certification set forth at the end of the form of assignment
thereon and provided such additional evidence as the Company shall
reasonably request that the Rights evidenced thereby are not and at all
times on or after the Interested Shareholder Stock Acquisition Date have
not been Beneficially Owned by an Interested Shareholder Acquiring Person,
then (i) the Beneficial Owner of such Rights shall be conclusively deemed
to be an Acquiring Person or a transferee, direct or indirect, thereof and
(ii) accordingly, (A) the Rights evidenced by the Rights Certificate or
Certificates issued upon such registration of transfer or exchange shall
not be exercisable pursuant to Section 3.2 and (B) such Rights Certificate
or Certificates shall bear the following legend:
THE RIGHTS REPRESENTED HEREBY HAVE BEEN BENEFICIALLY OWNED ON OR
AFTER THE INTERESTED SHAREHOLDER STOCK ACQUISITION DATE BY AN
INTERESTED SHAREHOLDER ACQUIRING PERSON (AS SUCH TERMS ARE
DEFINED IN THE RIGHTS AGREEMENT) AND, ACCORDINGLY, ARE NOT
EXERCISABLE PURSUANT TO SECTION 3.2 OF THE RIGHTS AGREEMENT.
Any Rights Certificate issued upon registration of transfer or exchange of,
or in lieu of, a Rights Certificate bearing the foregoing legend shall also
bear the foregoing legend. Promptly after the Company learns of an
Interested Shareholder Stock Acquisition Date, the Company will notify the
Rights Agent of such Interested Shareholder Stock Acquisition Date.
<PAGE>21
2.8 Mutilated, Destroyed, Lost and Stolen Rights Certificates. (a)
If any mutilated Rights Certificate is surrendered to the Rights Agent
prior to the close of business on the Expiration Date, the Company shall
execute and the Rights Agent shall countersign and deliver in exchange
therefor a new Rights Certificate evidencing the same number of Rights as
did the Rights Certificate so surrendered.
(b) If there shall be delivered to the Company and the Rights Agent
prior to the close of business on the Expiration Date (i) evidence to their
satisfaction of the destruction, loss or theft of any Rights Certificate
and (ii) such security or indemnity as may be required by them to save each
of them and any of their agents harmless, then, in the absence of notice to
the Company or the Rights Agent that such Rights Certificate has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Rights Agent shall countersign and deliver, in lieu of any such
destroyed, lost or stolen Rights Certificate, a new Rights Certificate
evidencing the same number of Rights as did the Rights Certificate so
destroyed, lost or stolen.
(c) As a condition to the issuance of any new Rights Certificate under
this Section 2.8, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of
the Rights Agent) connected therewith.
(d) Every new Rights Certificate issued pursuant to this Section 2.8
in lieu of any destroyed, lost or stolen Rights Certificate shall evidence
an original additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Rights Certificate shall be at any time
enforceable by anyone, and, subject to Section 2.7(e) and Section 3.2(b),
shall be entitled to all the benefits of this Agreement equally and
proportionately with any and all other Rights duly issued hereunder.
2.9 Persons Deemed Owners. Prior to due presentment of a Rights
Certificate (or, prior to the close of business on the Separation Date, the
associated Common Stock certificate) for registration of transfer, the
Company, the Rights Agent and any agent of the Company or the Rights Agent
may deem and treat the person in whose name such Rights Certificate (or,
prior to the close of business on the Separation Date, such Common Stock
certificate) is registered as the absolute owner thereof and of the Rights
evidenced thereby for all purposes whatsoever. As used in this Agreement,
unless the context otherwise requires, the term "holder" of any Rights
<PAGE>22
shall mean the registered holder of such Rights (or, prior to the close of
business on the Separation Date, the associated shares of Common Stock).
2.10 Delivery and Cancellation of Certificates. All Rights
Certificates surrendered for redemption, registration of transfer or
exchange shall, if surrendered to any person other than the Rights Agent,
be delivered to the Rights Agent and, in any case, shall be promptly
cancelled by the Rights Agent. The Company may at any time deliver to the
Rights Agent for cancellation any Rights Certificates previously
countersigned and delivered hereunder which the Company may have acquired
in any manner whatsoever, and all Rights Certificates so delivered shall be
promptly cancelled by the Rights Agent. No Rights Certificates shall be
countersigned in lieu of or in exchange for any Rights Certificates
cancelled as provided in this Section 2.10, except as expressly permitted
by this Agreement. The Rights Agent shall destroy all cancelled Rights
Certificates and deliver a certificate of destruction to the Company.
2.11 Agreement of Rights Holders. Every holder of Rights by
accepting the same consents and agrees with the Company and the Rights
Agent and with every other holder of Rights that:
(a) prior to the close of business on the Separation Date, each Right
will be transferable only together with, and will be transferred by a
transfer of, the associated share of Common Stock;
(b) after the Separation Date, the Rights Certificates will be
transferable only on the Rights Register as provided herein;
(c) prior to due presentment of a Rights Certificate (or, prior to the
close of business on the Separation Date, the associated Common Stock
certificate) for registration of transfer, the Company, the Rights Agent
and any agent of the Company or the Rights Agent may deem and treat the
person in whose name the Rights Certificate (or, prior to the close of
business on the Separation Date, the associated Common Stock certificate)
is registered as the absolute owner thereof and of the Rights evidenced
thereby (notwithstanding any notations of ownership or writing on such
Rights Certificate or the associated Common Stock certificate made by
anyone other than the Company or the Rights Agent) for all purposes
whatsoever, and neither the Company nor the Rights Agent shall be affected
by any notice to the contrary;
<PAGE>23
(d) this Agreement may be supplemented or amended from time to time
pursuant to Section 5.5(a) or the last sentence of the first paragraph of
Section 2.4(b) hereof, and interpretations made pursuant to Section 5.5(b)
shall be binding and conclusive on the holders in the absence of a showing
by the holders that the interpretation was made in bad faith and has no
reasonable basis; and
(e) Rights which at any time on or after an Interested Shareholder
Stock Acquisition Date are or have been Beneficially Owned by an Interested
Shareholder Acquiring Person will not be exercisable pursuant to Section
3.2.
Article III - Certain Transactions
___________ ____________________
3.1 Flip-over Transaction or Event. Prior to the close of business
on the Expiration Date the Company will not enter into, effect, consummate,
permit to occur, or suffer to exist any Flip-over Transaction or Event
unless the Company shall have taken such action as shall be necessary to
ensure and provide, and shall have entered into a binding and enforceable
supplemental agreement with the Person engaging in the transaction (or, in
the case of a transaction described in clause (D) of Section l.l(j) hereof,
any Acquiring Person) for the benefit of the holders of the Rights
providing, that (i) each Right shall thereafter constitute the right (in
addition to any other rights provided herein) to purchase from such Person
or Acquiring Person (or from an Affiliate or Associate of such Person or
Acquiring Person), upon exercise thereof in accordance with the terms
hereof, that number of shares of Publicly Traded Common Stock of such
Person or Acquiring Person (or such Affiliate or Associate) having an
aggregate Market Price on the date of consummation or occurrence of such
Flip-over Transaction or Event equal to twice the Exercise Price for an
amount in cash equal to the Exercise Price (such number of shares to be
appropriately adjusted in a manner analogous to the applicable adjustment
provided for in Section 2.4 in the event that after such date of
consummation or occurrence an event of a type analogous to any of the
events described in Section 2.4 shall have occurred with respect to such
Publicly Traded Common Stock) and (ii) the issuer of such shares of
Publicly Traded Common Stock shall thereafter be liable for, and shall
assume, by virtue of such Flip-over Transaction or Event and such
supplemental agreement, all the obligations and duties of the Company
pursuant to this Agreement. If, for any reason, the Company is not able
lawfully to effect such a supplemental agreement giving to the holders of
<PAGE>24
the Rights the benefits and protection contemplated by this Section 3.1,
the Company will forego, and will not engage in, any such transaction
unless and until it can secure the binding and enforceable supplemental
agreement required by this Section 3.1. The provisions of this Section 3.1
shall apply to successive Flip-over Transactions or Events.
3.2 Flip-in. (a) In the event that prior to the Expiration Date a
Flip-in Date shall occur, the Company shall take such action as shall be
necessary to ensure and provide that, except as provided below, each Right
shall constitute the right (in addition to any other rights provided
herein) to purchase from the Company for an amount in cash equal to the
Exercise Price, upon exercise thereof in accordance with the terms hereof
(but subject to Section 5.17 hereof), that number of shares of Common Stock
having an aggregate Market Price on the Flip-in Date equal to twice the
Exercise Price (such right to be appropriately adjusted in a manner
analogous to the applicable adjustment provided for in Section 2.4 in the
event that on or after such Flip-in Date an event of a type analogous to
any of the events described in Section 2.4 shall have occurred with respect
to the Common Stock). Promptly after the Company learns of a Flip-in Date,
the Company will notify the Rights Agent of such Flip-in Date.
(b) Notwithstanding the foregoing, any Rights that either (i) at any
time on or after the Interested Shareholder Stock Acquisition Date are or
have been Beneficially Owned by an Interested Shareholder Acquiring Person
or (ii) are evidenced by a Rights Certificate bearing the legend set forth
in Section 2.7(e) shall not be exercisable pursuant to Section 3.2, and any
holder of such Rights (including transferees) shall have no right to
exercise such Rights pursuant to Section 3.2. If any Rights Certificate is
surrendered for exercise and the holder thereof has not duly completed the
certification set forth thereon at the end of the form of election to
exercise and provided such additional evidence as the Company shall
reasonably request that the Rights represented thereby are not and at all
times on or after the Interested Shareholder Stock Acquisition Date have
not been Beneficially Owned by an Interested Shareholder Acquiring Person,
then the Beneficial Owner of such Rights shall be conclusively deemed to be
an Interested Shareholder Acquiring Person or a transferee, direct or
indirect, thereof and such Rights shall not be exercisable pursuant to
Section 3.2.
<PAGE>25
(c) In the event that there shall not be sufficient treasury shares or
authorized but unissued shares of Common Stock of the Company to permit the
exercise in full of the Rights in accordance with Section 3.2(a), the
Company shall cause sufficient additional shares to be authorized (and
shall call a shareholders' meeting to effect the same) or, if the Company
is unable to cause such additional shares to be authorized (whether because
the same is not approved at the shareholders' meeting referred to above or
for any other reason) or the Company chooses not to do so, the Company
shall take (and shall promptly notify the Rights Agent of the taking of)
such action as shall be necessary to ensure and provide, as permitted by
applicable law and any agreements or instruments in effect on the Flip-in
Date to which it is a party, that, subject to Section 3.2(b), each Right
shall thereafter constitute the right (in lieu of any right pursuant to
Section 3.2 (a) but in addition to any other right provided herein) to
purchase from the Company, upon exercise thereof in accordance with the
terms hereof (but subject to Section 5.17 hereof) debt or equity securities
or other assets (or a combination thereof) having a fair value equal to
twice the Exercise Price, for an amount in cash equal to the Exercise Price
(such right to be appropriately adjusted in a manner analogous to the
applicable adjustment provided for in Section 2.4 in the event that on or
after such Flip-in Date an event of a type analogous to any of the events
described in Section 2.4 shall have occurred with respect to the Common
Stock). The fair value of such debt or equity securities or other assets
shall be as determined in good faith by the Board of Directors of the
Company, after consultation with a nationally recognized investment banking
firm.
Article IV - The Rights Agent
__________ ________________
4.1 General. (a) The Company hereby appoints the Rights Agent to act
as agent for the Company in accordance with the terms and conditions
hereof, and the Rights Agent hereby accepts such appointment. The Company
agrees to pay to the Rights Agent reasonable compensation for all services
rendered by it hereunder and, from time to time, on demand of the Rights
Agent, its reasonable expenses and counsel fees and other disbursements
incurred in the administration and execution of this Agreement and the
exercise and performance of its duties hereunder. The Company also agrees
to indemnify the Rights Agent for, and to hold it harmless against, any
loss, liability, or expense, incurred without negligence, bad faith or
willful misconduct on the part of the Rights Agent, for anything done or
omitted by the Rights Agent in connection with the acceptance and
<PAGE>26
administration of this Agreement, including the costs and expenses of
defending against any claim of liability.
( b ) The Rights Agent shall be protected and shall incur no liability
for or in respect of any action taken, suffered or omitted by it in
connection with its administration of this Agreement in reliance upon any
certificate for Common Stock, Rights Certificate, certificate 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.
4.2 Merger or Consolidation or Change of Name of Rights Agent.
(a) Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Rights
Agent or any successor Rights Agent is a party, or any corporation
succeeding to the corporate trust business of the Rights Agent or any
successor Rights Agent, will be the successor to the Rights Agent under
this Agreement without the execution or filing of any paper or any further
act on the part of any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor Rights Agent
under the provisions of Section 4.4 hereof. In case at the time such
successor Rights Agent succeeds to the agency created by this Agreement any
of the Rights Certificates have been countersigned but not delivered, any
such successor Rights Agent may adopt the countersignature of the
predecessor Rights Agent and deliver such Rights Certificates so
countersigned; and in case at that time any of the Rights Certificates have
not been countersigned, any successor Rights Agent may countersign such
Rights Certificates either in the name of the predecessor Rights Agent or
in the name of the successor Rights Agent; and in all such cases such
Rights Certificates will 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 is 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,
<PAGE>27
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.
4.3 Duties of Rights Agent. The Rights Agent undertakes to perform
the express duties and obligations imposed by this Agreement, and no
implied duties or obligations shall be read into this Agreement against the
Rights Agent. The Rights Agent shall perform its duties and obligations
under 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, and the opinion
of such counsel will be full and complete authorization and protection to
the Rights Agent as to any action taken, suffered or omitted by it in good
faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the
Rights Agent deems it necessary or desirable that any fact or matter be
proved or established by the Company prior to taking, suffering or omitting
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 or any Vice President and by the Treasurer or any
Assistant Treasurer or the Secretary or any Assistant Secretary of the
Company and delivered to the Rights Agent; and any such certificate will be
full authorization to and protection for the Rights Agent for any action
taken, suffered or omitted in good faith by it under the provisions of this
Agreement in reliance upon such certificate.
(c) The Rights Agent will be liable hereunder only for its own
negligence, bad faith or willful misconduct.
(d) The Rights Agent will not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the
certificates for Common Stock, the Rights Certificates (except its
countersignature thereof) or be required to verify the same, but all such
statements and recitals are and will be deemed to have been made by the
Company only.
(e) The Rights Agent will not be under any responsibility in respect
of the validity of this Agreement or the execution and delivery hereof
(except the due authorization, execution and delivery hereof by the Rights
Agent) or in respect of the validity or execution of any certificate for
Common Stock or Rights Certificate (except its countersignature thereof);
<PAGE>28
nor will it be responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Rights Certificate; nor
will it be responsible for any change in the exercisability of the Rights
(including pursuant to Section 3.2 or 5.17 hereof) or any adjustment
required under the provisions of Section 2.4 or 3.2 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 after actual notice of any such
adjustment); nor will it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any
shares of Common Stock to be issued pursuant to this Agreement or any
Rights or as to whether any shares of Common Stock will, when issued, be
duly and validly authorized, executed, issued and delivered and 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 or directions with respect to the performance of its duties
hereunder from the Chairman of the Board, the President or any Vice
President or the Secretary or any Assistant Secretary or the Treasurer or
any Assistant Treasurer of the Company, and to apply to such officers for
advice or instructions or directions in connection with its duties, and it
shall not be liable for any action taken, suffered or omitted by it in good
faith in accordance with instructions or directions of any such officer.
(h) The Rights Agent and any shareholder, director, officer or
employee of the Rights Agent may buy, sell or deal in Common Stock, Rights,
or other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or
lend money to the Company or otherwise act as fully and freely as though it
were not Rights Agent under this Agreement. Nothing herein shall preclude
the Rights Agent from acting in any other capacity for the Company or for
any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or
by or through its attorneys or agents, and the Rights Agent will not be
answerable or accountable for any act, default, neglect or misconduct of
<PAGE>29
any such attorneys or agents or for any loss to the Company resulting from
any such act, default, neglect or misconduct, provided reasonable care was
exercised in the selection and continued employment thereof.
4.4 Change of Rights Agent. The Rights Agent may resign and be
discharged from its duties under this Agreement upon 30 days' notice (or
such lesser notice as is acceptable to the Company) in writing mailed to
the Company and to each transfer agent of Common Stock known to the Rights
Agent by registered or certified mail, and to the holders of the Rights by
first-class mail. The Company may remove the Rights Agent upon 30 days'
notice in writing, mailed to the Rights Agent and to each transfer agent of
the Common Stock by registered or certified mail, and to the holders of the
Rights by first-class mail. If the Rights Agent should resign or be
removed or otherwise become incapable of acting, the Company will appoint a
successor to the Rights Agent . If the Company fails to make such
appointment within a period of 30 days after 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 any Rights (which holder
shall, with such notice, submit such holder's Rights Certificate for
inspection by the Company), then the holder of any Rights may apply to any
court of competent jurisdiction for the appointment of a new Rights Agent.
Any successor Rights Agent, whether appointed by the Company or by such a
court, shall be a corporation organized and doing business under the laws
of the United States or any State in good standing, having an office in the
State of New York, which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination by
federal or state authority and which has at the time of its appointment as
Rights Agent a combined capital and surplus of at least $50,000,000. After
appointment, the successor Rights Agent will 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 will
file notice thereof in writing with the predecessor Rights Agent and each
transfer agent of the Common Stock, and mail a notice thereof in writing to
the holders of the Rights. Failure to give any notice provided for in this
<PAGE>30
Section 4.4, 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.
Article V - Miscellaneous
_______ _____________
5.1 Redemption. The Board of Directors of the Company may, at any
time prior to the close of business on the tenth day after the Stock
Acquisition Date, elect to redeem all (but not less than all) outstanding
Rights, at a price per Right in cash equal to the Redemption Price;
provided, however, that after the Stock Acquisition Date no such election
may be made unless approved by the Disinterested Directors, and further
provided that, notwithstanding the foregoing, the Board of Directors may,
at any time within two years after the Stock Acquisition Date, elect to
redeem all (but not less than all) outstanding Rights, at a price per Right
in cash equal to the Redemption Price, in connection with (and contingent
upon successful completion of) a merger or consolidation of the Company
with, or a sale or transfer of all or substantially all of the assets of
the Company to, a Person which is neither an Acquiring Person nor an
Affiliate or Associate of an Acquiring Person, if such merger,
consolidation, sale or transfer shall have been approved by the affirmative
vote of the holders of a majority of the outstanding shares of Common Stock
not Beneficially Owned by an Acquiring Person. The right to exercise the
Rights will terminate at the close of business on the Redemption Date, and
redeemed Rights will thereafter represent only the right to receive the
Redemption Price. The Company will (or will cause the Rights Agent to) give
to holders of Rights prompt written notice (a) of any such redemption, (b)
of the Second Stock Acquisition Date, and (c) of the absence at any time
following the Stock Acquisition Date of sufficient Disinterested Directors
to approve an election to redeem or to elect sufficient additional
Disinterested Directors to do so. If such written notice is mailed in the
manner herein provided, such written notice shall be deemed given when
mailed, whether or not the holder receives the notice. In addition, the
Company will cause such notice to be published in a newspaper of general
circulation in New York, New York.
5.2 Fractional Shares. If the Company elects not to issue
certificates representing fractional shares of Common Stock upon exercise
of Rights, the Company in lieu thereof may either (a) refuse to permit the
exercise of a number of Rights which would require the issuance of other
than whole shares of Common Stock or (b) pay the holder exercising Rights
an amount in cash for any fractional share of Common Stock equal to the
same fraction of the market value of a share of Common Stock on the Trading
<PAGE>31
Day next preceding the day of exercise as determined by the Rights Agent.
5.3 Expiration. No Person shall have any rights pursuant to this
Agreement or any Right after the close of business on the Expiration Date,
except, if the rights are redeemed, as provided in Section 5.1 hereof.
5.4 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 number or kind or class of shares of stock purchasable
upon exercise of Rights made in accordance with the provisions of this
Agreement.
5.5 Supplements and Amendments; Interpretations.
(a) The Company may (i) from time to time supplement or amend this
Agreement without the approval of any holders of Rights in order to cure
any ambiguity, to correct or supplement any provision contained herein
which may be defective or inconsistent with any other provisions herein, to
extend the period during which Rights may be redeemed pursuant to Section
5.1 (but only if such supplement or amendment is effected with the approval
of the Disinterested Directors prior to the close of business on the tenth
day after the Stock Acquisition Date), or to make any other provisions in
regard to matters or questions arising hereunder which the Company may deem
necessary or desirable and which shall not adversely affect the interests
of the holders of Rights and (ii) from time to time prior to the close of
business on the Flip-in Date, supplement or amend in any respect Sections
1.1, 2.4(a), 2.7(e), 2.11(e), 3.2, 5.1, provided that such amendment to
Section 5.1 shall not violate clause (i) above, 5.5 or 5.17 or this clause
(ii) of this sentence without the approval of any holders of Rights. The
Rights Agent agrees that at the request of the Company it will execute and
deliver such supplements and amendments to effectuate any of the foregoing
purposes, provided that such supplement or amendment does not impose
greater duties on, or otherwise adversely affect, the Rights Agent without
its concurrence. The Rights Agent shall have no obligation, responsibility
or liability to any holder of Rights or any other person for executing and
delivering any such supplement or amendment to this Agreement.
<PAGE>32
(b) Interpretations (including the resolution of uncertainties or
ambiguities) made by the Disinterested Directors of any provision of this
Agreement or of the application thereof to any situation, person or
circumstance shall be binding and conclusive on all holders of Rights in
the absence of a showing by the holders that the interpretation was made in
bad faith and has no reasonable basis.
5.6 Rights of Action. Rights of action in respect of this Agreement
are vested in the respective holders of the Rights; and any holder of any
Rights, without the consent of the Rights Agent or of the holder of any
other Rights, may, on such holder's own behalf and for such holder's own
benefit and the benefit of other holders of Rights, enforce, and may
institute and maintain any suit, action or proceeding against the Company
to require performance by the Company and to enforce, or otherwise act in
respect of, such holder's right to exercise such holder's Rights in the
manner provided in such holder's Rights Certificate, in this Agreement and
in a supplemental agreement entered into by the Company pursuant to Section
3.1. 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 (including particularly Section 3.1) and will be entitled to
specific performance of the obligations under, and injunctive relief
against actual or threatened violations of, the obligations of any Person
subject to this Agreement or such a supplemental agreement.
5.7 Holder of Rights Not Deemed a Shareholder. No holder, as such,
of any Rights shall be entitled to vote, receive dividends or be deemed for
any purpose the holder of Common Stock or any other securities which may at
any time be issuable on the exercise of such Rights, nor shall anything
contained herein or in any Rights Certificate be construed to confer upon
the holder of any Rights, as such, any of the rights of a shareholder of
the Company or any right to vote for the election of directors or upon any
matter submitted to shareholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of meetings
or other actions affecting stockholders (except as provided in Section 5.8
hereof), or to receive dividends or subscription rights, or otherwise,
until such Rights shall have been exercised in accordance with the
provisions hereof.
5.8 Notice of Proposed Actions. In case the Company shall propose
after the Separation Date and prior to the Expiration Date (i) to enter
<PAGE>33
into, effect, consummate, permit to occur or suffer to exist any Flip-over
Transaction or Event, or (ii) to effect the liquidation, dissolution or
winding up of the Company, then, in each such case, the Company shall give
to the Rights Agent and to each holder of a Right, in accordance with
Section 5.9 hereof, a notice of such proposed action, which shall specify
the date on which such Flip-over Transaction or Event, liquidation,
dissolution, or winding up is to take place, and such notice shall be so
given at least 20 Business Days prior to the date of the taking of such
proposed action.
5.9 Notices. Notices or demands authorized by this Agreement to be
given or made by the Rights Agent or by the holder of any Rights to or on
the Company shall be sufficiently given or made when delivered or when sent
by first-class mail, postage prepaid, addressed (until another address is
filed in writing with the Rights Agent) as follows:
USLIFE Corporation
125 Maiden Lane
New York, New York 10038
Attention: Secretary
Notices or demands authorized by this Agreement to be given or made by the
Company or by the holder of any Rights to or on the Rights Agent shall be
sufficiently given or made when delivered or when sent by first-class mail,
postage prepaid, addressed (until another address is filed in writing with
the Company) as follows:
Chemical Bank
450 West 33rd Street
New York, N.Y. 10001
Attn: Vice President
Stock Transfer Adm.
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to or on the holder of any Rights shall be
sufficiently given or made when delivered or when sent by first-class mail,
postage prepaid, addressed to such holder at the address of such holder as
shown by the records of the Company.
5.10 Costs of Enforcement. The Company agrees (and shall take all
necessary actions to provide) that, if a Flip-over Transaction or Event
occurs, an Acquiring Person (or, in the case of a transaction described in
clause (A) of Section l.l(j) hereof, the Person engaging in the
transaction) will agree, that if the Company (or such Acquiring Person or
Person) fails to fulfill any of its obligations pursuant to this Agreement,
<PAGE>34
then the Company (or such Acquiring Person or Person) will reimburse the
holder of any Rights for the costs and expenses (including legal fees)
incurred by such holder in actions to enforce his rights pursuant to any
Rights or this Agreement.
5.11 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.
5.12 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 holders of the Rights 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 holders of the
Rights.
5.13 Descriptive Headings. Descriptive headings appear herein for
convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
5.14 Governing Law. This Agreement and each Right issued hereunder
shall be deemed to be a contract made under the laws of the State of New
York and for all purposes shall be governed by and construed in accordance
with the laws of such state applicable to contracts to be made and
performed entirely within such state.
5.15 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.
5.16 Severability. If any term or provision hereof or the
application thereof to any circumstance shall, in any jurisdiction and to
any extent, be invalid or unenforceable, such term or provision shall be
ineffective as to such jurisdiction to the extent of such invalidity or
unenforceability without invalidating or rendering unenforceable the
remaining terms and provisions hereof or the application of such term or
provision to circumstances other than those as to which it is held invalid
or unenforceable.
5.17 Suspension of Exercisability. To the extent that the Company
determines in good faith that some action need be taken pursuant to Section
3.2(c) or to comply with federal or state securities laws, the Company may
suspend the exercisability of the Rights pursuant to Section 3.2 for a
period of up to ninety (90) days following the Flip-in Date in order to
<PAGE>35
take such action or comply with such laws. In the event of any such
suspension, the Company shall as promptly as practicable notify the Rights
Agent, and shall issue a public announcement stating, that the
exercisability of the Rights pursuant to Section 3.2 has been temporarily
suspended.
IN WITNESS WHEREOF, the parties hereto have caused this amended and
restated Agreement to be duly executed as of September 27, 1994.
Attest: USLIFE CORPORATION
/s/ Richard G. Hohn By /s/ Gordon E. Crosby, Jr.
____________________ __________________________
Secretary Title: Chairman of the Board,
President and Chief
Executive Officer
Attest: CHEMICAL BANK
/s/ Raymond Poplasky By /s/ Barbara J. Hall
____________________ _____________________
Assistant Vice President Title: Vice President
