ATMI, Inc.
and
Fleet National Bank
RIGHTS AGREEMENT
Dated as of October 13, 2000
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TABLE OF CONTENTS
Page
Section 1. Certain Definitions..............................................1
Section 2. Appointment of Rights Agent......................................8
Section 3. Issuance of Rights Certificates..................................8
Section 4. Form of Rights Certificates......................................9
Section 5. Execution, Countersignature and Registration....................10
Section 6. Transfer, Division, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed,
Lost or Stolen Rights Certificates...........................11
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights...12
Section 8. Cancellation and Destruction of Rights Certificates.............14
Section 9. Reservation and Availability of Preferred Stock.................14
Section 10. Preferred Stock Record Date.....................................15
Section 11. Adjustments to Purchase Price, Number of Shares or
Number of Rights..............................................16
Section 12. Certification of Adjustments....................................23
Section 13. Consolidation, Merger or Sale or Transfer of Property,
Assets or Earning Power........................................23
Section 14. Fractional Rights and Fractional Shares.........................26
Section 15. Rights of Action................................................27
Section 16. Agreement of Rights Holders Concerning Transfer and Ownership of
Rights.........................................................28
Section 17. Rights Holder Not Deemed a Stockholder..........................28
Section 18. Concerning the Rights Agent.....................................29
Section 19. Merger or Consolidation or Change of Name of Rights Agent.......29
Section 20. Duties of Rights Agent..........................................30
Section 21. Change of Rights Agent..........................................32
Section 22. Issuance of New Rights Certificates.............................32
Section 23. Redemption......................................................33
Section 24. Notice of Certain Events........................................34
Section 25. Notices.........................................................35
Section 26. Amendments and Supplements......................................35
Section 27. Successors......................................................36
Section 28. Benefits of this Agreement; Determinations and Actions by the
Board of Directors...........................................36
Section 29. Severability....................................................36
Section 30. Governing Law...................................................37
Section 31. Counterparts....................................................37
Section 32. Descriptive Headings............................................37
Section 33. Grammatical Construction........................................37
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RIGHTS AGREEMENT
Rights Agreement dated as of October 13, 2000, between ATMI,
Inc., a Delaware corporation (the "Company"), and Fleet National Bank (the
"Rights Agent").
R E C I T A L S
The Board of Directors of the Company has authorized and declared
the payment of a dividend of one preferred share purchase right (the "Right")
for each share of Common Stock (as defined in Section 1) outstanding on the
Record Date (as defined in Section 1) and has authorized the issuance of one
Right for each share of Common Stock issued between the Record Date and the
Distribution Date (as such terms are defined in Section 1), and, in certain
cases, following the Distribution Date. Each Right represents, as of the Record
Date, the right to purchase one one-hundredth of a share of Preferred Stock (as
defined in Section 1) upon the terms and subject to the conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth in this Agreement, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement,
the following terms have the meanings indicated:
(a) (i) "Acquiring Person" means any Person who or which, together
with all Affiliates and Associates of such Person, is (or has previously been,
at any time after the date of this Agreement, whether or not such Person(s)
continues to be) the Beneficial Owner of 15% or more of the Outstanding Common
Stock (as defined in this Section 1). However, "Acquiring Person" shall not
include any Exempt Person.
(ii) A Person does not become an "Acquiring Person" solely as
the result of (A) an acquisition of Common Stock by the Company or any of its
Subsidiaries which, by reducing the number of shares outstanding, increases the
proportionate number of shares beneficially owned by such Person to 15% or more
of the Outstanding Common Stock, or (B) such Person becoming the Beneficial
Owner of 15% or more of the Outstanding Common Stock solely as a result of an
Exempt Event; provided, however, that if a Person becomes the Beneficial Owner
of 15% or more of the Outstanding Common Stock solely by reason of such a share
acquisition by the Company or the occurrence of such an Exempt Event and such
Person shall, after becoming the Beneficial Owner of such Common Stock, become
the Beneficial Owner of additional shares of Common Stock constituting 1% or
more of the then Outstanding Common Stock by any means whatsoever (other than as
a result of the subsequent occurrence of an Exempt Event, a stock dividend or a
subdivision of the Common Stock into a larger number of shares or a similar
transaction), then such Person shall be deemed to be an "Acquiring Person"; or
(C) the inadvertent acquisition of beneficial ownership of 15% or more of the
Common Stock of the Company if the Board of Directors determines in good faith
that such acquisition was inadvertent and such Person immediately divests itself
of a sufficient number of shares of Common Stock so that such Person could no
longer be an "Acquiring Person"; or (D) if such Person is an Institutional
Investor, such Institutional Investor becoming the Beneficial Owner of 15% or
more of the Outstanding Common Stock solely by reason of such Institutional
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Investor's Regular Trading Activities; provided, however, that if an
Institutional Investor becomes the Beneficial Owner of 20% or more of the then
Outstanding Common Stock other than solely as the result of the events described
in clause (B) or (C) of this Section 1(a)(ii) (and in the case of clause (C),
such Institutional Investor immediately divests itself of a sufficient number of
shares of Common Stock as that it is no longer the Beneficial Owner of 20% or
more of the then Outstanding Common Stock), then such Institutional Investor
shall be deemed an "Acquiring Person."
(b) "Affiliate" of a Person has the meaning given to such term in
Rule 12b-2 of the General Rules and Regulations under the Exchange Act, as in
effect on the date of this Agreement.
(c) "Associate" of a Person has the meaning given to such term in
Rule 12b-2 of the General Rules and Regulations under the Exchange Act, as in
effect on the date of this Agreement.
(d) Except as provided below, a Person is the "Beneficial
Owner" of, and "beneficially owns," any securities:
(i) which such Person or any Affiliate or Associate of
such Person beneficially owns, directly or indirectly;
(ii) which such Person or any Affiliate or Associate of such
Person has, directly or indirectly, the right or obligation (whether or not then
exercisable or effective) to acquire pursuant to any agreement, arrangement or
understanding (whether or not in writing), or upon the exercise of conversion
rights, exchange rights, rights (other than these Rights), warrants or options,
or otherwise; provided, however, that a Person will not be deemed the Beneficial
Owner of, or to beneficially own, securities tendered pursuant to a tender or
exchange offer made by or on behalf of such Person or any Affiliate or Associate
of such Person until such tendered securities are accepted for purchase or
exchange; and provided further, that prior to the occurrence of a Triggering
Event, a Person will not be deemed the Beneficial Owner of, or to beneficially
own, securities obtainable upon exercise of the Rights;
(iii) which such Person or any Affiliate or Associate of such
Person has, directly or indirectly, the right (whether or not then exercisable
or effective) to vote, or to direct the voting of, pursuant to any agreement,
arrangement or understanding (whether or not in writing); provided, however,
that a Person shall not be deemed the Beneficial Owner of, or to beneficially
own, any security pursuant to this clause (iii) if the agreement, arrangement or
understanding to vote, or to direct the voting of, such security (A) arises
solely from a revocable proxy or consent given in response to a public proxy or
consent solicitation made pursuant to, and in accordance with, the Exchange Act
and applicable rules and regulations thereunder and (B) is not also then
reportable on Schedule 13D under the Exchange Act (or any comparable or
successor schedule or report);
(iv) which such Person or any Affiliate or Associate of such
Person has "beneficial ownership" of (as determined pursuant to Rule 13d-3 of
the General Rules and Regulations under the Exchange Act or any comparable or
successor provision); or
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(v) which are beneficially owned, directly or indirectly, by
any other Person or any Affiliate or Associate of such other Person with whom
such Person or any Affiliate or Associate of such Person has any agreement,
arrangement or understanding (whether or not in writing) for the purpose of
acquiring, holding, voting (except pursuant to a revocable proxy as described in
subparagraph (iii) of this Section 1(d)) or disposing of any securities of the
Company.
Nothing in this Section 1(d) causes a Person engaged in business as
an underwriter of securities to be the "Beneficial Owner" of, or to
"beneficially own," any securities acquired through such Person's participation
in good faith in a firm commitment underwriting until the expiration of 40 days
after the date of such acquisition.
Notwithstanding anything in this Agreement to the contrary, for
purposes of this Agreement, no Person is to be treated as the "Beneficial Owner"
of, or to "beneficially own," any securities owned by any other Person that is
an Exempt Person.
(e) "Board of Directors" means the Board of Directors of the
Company, as the same is constituted from time to time, or if the Company ceases
to exist as a result of a Business Combination or otherwise, the board of
directors of the Company's successor, if any.
(f) "Business Combination" has the meaning set forth in Section
13(a).
(g) "Business Day" means any day other than a Saturday, Sunday or a
day on which banking institutions in the State of New York are authorized or
obligated by law or executive order to close.
(h) "Close of Business" on any given date means 5:00 p.m., New York,
New York time, on such date; provided, however, that if such date is not a
Business Day it shall mean 5:00 p.m., New York, New York time, on the next
succeeding Business Day.
(i) "Common Stock" when used in any context applicable prior to a
Business Combination means the common stock, par value $.01 per share, of the
Company (as the same may be changed by reason of any combination, subdivision or
reclassification of the Common Stock). "Common Stock" when used with reference
to any Person (other than the Company prior to a Business Combination) means
shares of capital stock of such Person (if such Person is a corporation) of any
class or series, or units of equity interests in such Person (if such Person is
not a corporation) of any class or series, the terms of which shares or units do
not limit (as a fixed amount and not merely in proportional terms) the amount of
dividends or income payable or distributable on such shares or units or the
amount of property or assets distributable on such shares or units upon any
voluntary or involuntary liquidation, dissolution or winding up of such Person
and do not provide that such shares or units are subject to redemption at the
option of such Person, or any shares of capital stock or units of equity
interests into which the foregoing shall be reclassified or changed; provided,
however, that if at any time there are more than one such class or series of
capital stock of or equity interests in such Person, "Common Stock" of such
Person will include all such classes and series substantially in the proportion
of the total number of shares or other units of each such class or series
outstanding at such time.
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(j) "Current Market Price" per share of Common Stock, Preferred
Stock or Equivalent Shares on any date is the average of the daily closing
prices per share of such Common Stock, Preferred Stock or Equivalent Shares for
the 30 consecutive Trading Days (as defined below in this Section 1(j)) ending
on the last Trading Day immediately prior to such date for the purpose of any
computation under this Agreement except computations made pursuant to Section
11(a)(iii), and for the 10 consecutive Trading Days immediately following such
date for the purpose of any computation under Section 11(a)(iii); provided,
however, that in the event that the Current Market Price per share of Common
Stock, Preferred Stock or Equivalent Shares is determined during a period
following the announcement by the issuer of such Common Stock, Preferred Stock
or Equivalent Shares of (i) a dividend or distribution on such Common Stock,
Preferred Stock or Equivalent Shares other than a regular quarterly cash
dividend, or (ii) any subdivision, combination or reclassification of such
Common Stock, Preferred Stock or Equivalent Shares, and prior to the expiration
of 30 Trading Days after the "ex-dividend" date for such dividend or
distribution or the record date for such subdivision, combination or
reclassification, then, and in each such case, the "Current Market Price" shall
be appropriately adjusted to take into account such dividend, distribution,
subdivision, combination or reclassification. The closing price for each Trading
Day shall be the last sale price, regular way, on such day, or, in case no such
sale takes place on such day, the average of the closing bid and asked prices,
regular way, on such day, 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 ("NYSE") or, if the Common
Stock, Preferred Stock or Equivalent Shares are not listed or admitted to
trading on the NYSE, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal United
States national securities exchange on which the Common Stock, Preferred Stock
or Equivalent Shares are listed or admitted to trading or, if the Common Stock,
Preferred Stock or Equivalent Shares are not listed or admitted to trading on
any United States national securities exchange, the last quoted sale price on
such day or, if not so quoted, the average of the high bid and low asked prices
in the over-the-counter market on such day, as reported by the National
Association of Securities Dealers, Inc. Automated Quotation System ("Nasdaq") or
such other system then in use. If on any such day the Common Stock, Preferred
Stock or Equivalent Shares are not quoted by any such system, the average of the
closing bid and asked prices on such day as furnished by a professional market
maker making a market in the Common Stock, Preferred Stock or Equivalent Shares
selected by a majority of the Board of Directors shall be used (which selection
shall be final, binding and conclusive for all purposes). If on such day no such
market maker is making a market, the fair market value of such shares on such
day as determined in good faith by a majority of the Board of Directors or the
Board of Directors of the issuer of such Common Stock, Preferred Stock or
Equivalent Shares must be used, which determination must be described in a
statement filed with the Rights Agent and shall be final, binding and conclusive
for all purposes. The term "Trading Day" means a day on which the principal
United States national securities exchange on which the Common Stock, Preferred
Stock or Equivalent Shares are listed or admitted to trading is open for the
transaction of business or, if the Common Stock, Preferred Stock of Equivalent
Shares are not listed or admitted to trading on any United States national
securities exchange, but are traded in the over-the-counter market and reported
by Nasdaq, then any day for which Nasdaq reports the high bid and low asked
prices in the over-the-counter market, or if the Common Stock, Preferred Stock
or Equivalent Shares are not traded in the over-the-counter market and reported
by Nasdaq, then a Business Day. If the
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Common Stock, Preferred Stock or Equivalent Shares have not been so listed or
admitted to trading for 30 or more Trading Days or traded in the
over-the-counter market and reported by Nasdaq for 30 or more Trading Days,
"Current Market Price" per share means the fair market value per share as
determined in good faith by a majority of the Board of Directors, whose
determination must be described in a statement filed with the Rights Agent and
shall be final, binding and conclusive for all purposes.
(k) "Distribution Date" means the earlier of (i) the Stock
Acquisition Date, and (ii) the tenth Business Day after the Tender Offer Date.
The Board of Directors of the Company may, at its election, defer the date set
forth in clause (ii) of the preceding sentence to a specified later date or to
an unspecified later date to be determined by a subsequent action or event.
(l) "Equivalent Shares" means any class or series of capital stock
of the Company, other than the Preferred Stock, which is entitled to participate
on a proportional basis with the Preferred Stock in dividends and other
distributions, including distributions upon the liquidation, dissolution or
winding up of the Company. In calculating the number of any class or series of
Equivalent Shares for purposes of Section 11, the number of shares, or fractions
of a share, of such class or series of capital stock that is entitled to the
same dividend or distribution as a whole share of Preferred Stock shall be
deemed to be one share.
(m) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and any successor statute.
(n) "Exchange Date" means the time at which the Rights are exchanged
pursuant to Section 11(a)(iv).
(o) "Exempt Event" means with respect to any Person, the acquisition
by such Person of Beneficial Ownership of Common Stock of the Company solely as
a result of the occurrence of a Triggering Event and the effect of such
Triggering Event on the last proviso of clause (ii) of the definition of
Beneficial Owner, other than a Triggering Event in which such Person becomes an
Acquiring Person.
(p) "Exempt Person" means (i) the Company, (ii) any Subsidiary of
the Company, (iii) any employee benefit plan of the Company or of any Subsidiary
of the Company, and (iv) any Person holding Common Stock for any such employee
benefit plan or for employees of the Company or of any Subsidiary of the Company
pursuant to the terms of any such employee benefit plan.
(q) "Expiration Date" means the Close of Business on October
12, 2010.
(r) "Institutional Investor" means a Person who is principally
engaged in the business of managing investment funds for unaffiliated securities
investors and, as part of such Person's duties as agent for fully managed
accounts, holds or exercises voting or dispositive power over shares of Common
Stock.
(s) "Outstanding Common Stock" shall be determined in accordance
with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and
Regulations under the Exchange
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Act (or any successor or comparable provision); provided, however, that any such
calculation made for purposes of determining the particular percentage of
outstanding shares of Common Stock of which any Person is the Beneficial Owner
shall also include any such other securities not then actually issued and
outstanding which such Person would be deemed to be the Beneficial Owner of, or
to "beneficially own," pursuant to Section 1(d).
(t) "Person" means any individual, firm, corporation, limited
liability company, partnership, joint venture, association, trust,
unincorporated organization or other entity, and shall include any "group" as
that term is used in Rule 13d-5(b) of the General Rules and Regulations under
the Exchange Act (or any successor provision).
(u) "Preferred Stock" means the Company's Junior Participating
Preferred Stock, par value $.01 per share, having the rights and preferences set
forth in the Certificate of Designation, Preferences and Rights of Series A
Junior Participating Preferred Stock attached hereto as Exhibit A.
(v) "Principal Party" means (i) in the case of any Business
Combination described in clause (i), (ii) or (iii) of the first sentence of
Section 13(a), (A) the Person that is the issuer of any securities into which
shares of Common Stock of the Company are converted or for which they are
exchanged in such Business Combination or, if there is more than one such
issuer, the issuer of the Common Stock which has the greatest aggregate market
value or (B) if no securities are so issued, the Person that survives or results
from such Business Combination or, if there is more than one such Person, the
Person the Common Stock of which has the greatest aggregate market value; and
(ii) in the case of any Business Combination described in clause (iv) of the
first sentence in Section 13(a), the Person that receives the greatest portion
of the property, assets or earning power transferred pursuant to such Business
Combination or, if each Person that is a party to such Business Combination
receives the same portion of the property, assets or earning power so
transferred or if the Person receiving the greatest portion of the assets or
earning power cannot reasonably be determined, whichever of such Persons is the
issuer of the Common Stock which has the greatest aggregate market value;
provided, however, that in any such case, if the Common Stock of such Person is
not at such time and has not been continuously over the preceding 12-month
period registered under Section 12 of the Exchange Act and such Person is a
direct or indirect Subsidiary of one or more other Persons, then (A) "Principal
Party" refers to whichever of such other Persons has Common Stock that is and
has been continuously over the preceding 12-month period registered under
Section 12 of the Exchange Act; (B) if the Common Stocks of two or more of such
other Persons are and have been so registered, "Principal Party" refers to
whichever of such other Persons is the issuer of the Common Stock which has the
greatest aggregate market value; or (C) if the Common Stock of none of such
other Persons has been so registered, "Principal Party" refers to whichever of
such other Persons (other than an individual) is the Person which has the equity
securities with the greatest aggregate market value. In case such Person is
owned, directly or indirectly, by a joint venture formed by two or more Persons
that are not owned, directly or indirectly, by the same Person, the rules set
forth above apply to each of the chains of ownership having an interest in such
joint venture as if such Person were a Subsidiary of both or all of such joint
venturers and the Principal Parties in each such chain shall bear the
obligations set forth in Section 13 in the same ratio as their direct or
indirect interests in such Person bear to the total of such interests.
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(w) "Purchase Price" with respect to each Right is initially $175.00
per one one-hundredth of a share of Preferred Stock, shall be subject to
adjustment from time to time as provided in Sections 11 and 13, and shall be
payable in lawful money of the United States of America in cash or by certified
check or bank draft payable to the order of the Company.
(x) "Record Date" means the Close of Business on November 9,
2000.
(y) "Redemption Date" means the time at which the Rights are
scheduled to be redeemed as provided in Section 23.
(z) "Redemption Price" has the meaning given to such term in
Section 23.
(aa) "Regular Trading Activities" means trading activities
undertaken in the Institutional Investor's normal course of business and not for
the purpose of exercising, either alone or in concert with any other Person,
power to direct or cause the direction of the management and policies of the
Company.
(bb) "Rights Agent" means Fleet National Bank or any co-Rights Agent
or successor Rights Agent appointed by the Company pursuant to Section 2 or
Section 21, respectively.
(cc) "Securities Act" means the Securities Act of 1933, as amended,
and any successor statute.
(dd) "Stock Acquisition Date" means the first date (including,
without limitation, any such date which is on or after the date of this
Agreement and prior to the issuance of the Rights) of public disclosure by the
Company, an Acquiring Person or otherwise that a Person has become an Acquiring
Person.
(ee) "Subsidiary" has the meaning given to such term in Rule 12b-2
of the General Rules and Regulations under the Exchange Act, as in effect on the
date of this Agreement.
(ff) "Tender Offer Date" means the date of commencement or public
disclosure of an intention to commence (including any such commencement or
public disclosure which occurs on or after the date of this Agreement and prior
to the issuance of the Rights) a tender offer or exchange offer by a Person if,
after acquiring the maximum number of securities sought pursuant to such offer,
such Person, or any Affiliate or Associate of such Person, would be an Acquiring
Person.
(ff) "Triggering Event" occurs when a Person becomes an
Acquiring Person.
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Section 2. Appointment of Rights Agent. The Company hereby appoints
the Rights Agent to act as agent for the Company in accordance with the terms
and conditions hereof, and the Rights Agent hereby accepts such appointment. The
Company may from time to time appoint such co-Rights Agents as it may deem
necessary or desirable, upon ten (10) days' prior written notice to the Rights
Agent. The Rights Agent shall have no duty to supervise, and shall in no event
be liable for, the acts or omissions of any such co-Rights Agents.
Section 3. Issuance of Rights Certificates.
(a) Until the Distribution Date: (i) the Rights shall be issued in
respect of and shall be evidenced by the certificates representing the shares of
Common Stock issued and outstanding on the Record Date and shares of Common
Stock issued or which become outstanding after the Record Date and prior to the
earliest of the Distribution Date, the Redemption Date, the Exchange Date and
the Expiration Date (which certificates for Common Stock shall be deemed to also
be certificates evidencing the Rights), and not by separate certificates; (ii)
the registered holders of such shares of Common Stock shall also be the
registered holders of the Rights associated with such shares; and (iii) the
Rights shall be transferable only in connection with the transfer of shares of
Common Stock and the surrender for transfer of any certificate for such shares
of Common Stock shall also constitute the surrender for transfer of the Rights
associated with the shares of Common Stock represented thereby. As soon as
practicable after the Company has notified the Rights Agent of the occurrence of
the Distribution Date, the Company will prepare and execute, and the Company
will deliver to the Rights Agent to be countersigned, which the Rights Agent
shall do, and the Rights Agent shall mail, by first-class, insured, postage
prepaid mail, to each record holder of the Common Stock as of the Close of
Business on the Distribution Date, as shown by the records of the Company, at
the address of such holder shown on such records, one or more certificates
evidencing the Rights ("Rights Certificates"), in substantially the form of
Exhibit B hereto, evidencing one Right (as adjusted from time to time pursuant
to this Agreement) for each share of Common Stock so held. From and after the
Distribution Date, the Rights will be evidenced solely by such Rights
Certificates. In the event that an adjustment in the number of Rights per share
of Common Stock has been made pursuant to Section 11(o), at the time of
distribution of the Rights Certificates, the Company may make the necessary and
appropriate adjustments (in accordance with Section 14(a)) so that Rights
Certificates representing only whole numbers of Rights are distributed and cash
is paid in lieu of any fractional Rights.
(b) On the Record Date, or as soon as practicable thereafter, the
Company will send a copy of a Summary of Rights to Purchase Preferred Stock, in
substantially the form of Exhibit C hereto (the "Summary of Rights"), by
first-class, postage-prepaid mail, to each record holder of Common Stock as of
the close of business on the Record Date (other than any Acquiring Person or any
Associate or Affiliate of any Acquiring Person), at the address of such holder
shown on the records of the Company. With respect to certificates for Common
Stock outstanding as of the Record Date, until the Distribution Date, the Rights
will be evidenced by such certificates registered in the names of the holders
thereof together with the Summary of Rights. Until the Distribution Date (or the
earlier of the Redemption Date and the Expiration Date), the surrender for
transfer of any certificate for Common Stock outstanding on the Record Date,
with or without a copy of the Summary of Rights, shall also constitute the
transfer of the Rights associated with the Common Stock represented thereby.
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(c) Rights shall be issued in respect of all shares of Common Stock
which are issued or sold by the Company after the Record Date but prior to the
earliest of the Distribution Date, the Redemption Date, the Exchange Date or the
Expiration Date. In addition, in connection with the issuance or sale of Common
Stock by the Company following the Distribution Date and prior to the earliest
of the Redemption Date, the Exchange Date or the Expiration Date, the Company
shall, with respect to Common Stock so issued or sold pursuant to (i) the
exercise of stock options issued prior to the Distribution Date or under any
employee plan or arrangement created prior to the Distribution Date, or (ii)
upon the exercise, conversion or exchange of securities issued by the Company
prior to the Distribution Date, issue Rights and Rights Certificates
representing the appropriate number of Rights in connection with such issuance
or sale; provided, however, that (x) no such Rights and Rights Certificates
shall be issued if, and to the extent that, the Company shall be advised by
counsel that such issuance would create a significant risk of material adverse
tax consequences to the Company or the Person to whom such Rights Certificates
would be issued; and (y) no such Rights and Rights Certificates shall be issued,
if, and to the extent that, appropriate adjustment shall otherwise have been
made in lieu of the issuance thereof. Certificates issued after the Record Date
representing shares of Common Stock outstanding on the Record Date or shares of
Common Stock issued after the Record Date but prior to the earliest of the
Distribution Date, the Redemption Date, the Exchange Date and the Expiration
Date shall have impressed, printed, written on or otherwise affixed to them a
legend substantially in the following form:
This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in a Rights Agreement between ATMI, Inc. and
Fleet National Bank, as Rights Agent, dated as of October 13, 2000 (the
"Rights Agreement"), the terms of which are hereby incorporated herein by
reference and a copy of which is on file at the principal executive
offices of ATMI, Inc. Under certain circumstances, as set forth in the
Rights Agreement, such Rights will be evidenced by separate certificates
and will no longer be evidenced by this certificate. ATMI, Inc. will mail
to the holder of this certificate a copy of the Rights Agreement without
charge after receipt of a written request therefor. Under certain
circumstances, as set forth in the Rights Agreement, Rights that were, are
or become beneficially owned by Acquiring Persons or their Associates or
Affiliates (as such terms are defined in the Rights Agreement) may become
null and void and the holder of any of such Rights (including any
subsequent holder) shall not have any right to exercise such Rights.
Section 4. Form of Rights Certificates.
(a) The Rights Certificates (and the form of election to purchase
shares and the form of assignment to be printed on the reverse thereof) shall be
in substantially the form of Exhibit B hereto and may have such marks of
identification or designation and such legends, summaries or endorsements
printed thereon as the Company may deem appropriate and as are not inconsistent
with the provisions of this Agreement, or as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Rights may from time to time be
listed or any securities association on whose interdealer quotation system the
Rights may be from time to time authorized for quotation, or to conform to
usage. Subject to the provisions of this Agreement, the Rights
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Certificates, whenever issued, shall be dated as of the Distribution Date, and
on their face shall entitle the holders thereof to purchase such number of
shares of Preferred Stock as shall be set forth therein at the Purchase Price
set forth therein, but the number and kind of such securities and the Purchase
Price shall be subject to adjustment as provided in this Agreement.
(b) Notwithstanding any other provision of this Agreement, (i) any
Rights Certificate issued pursuant to this Agreement that represents Rights
beneficially owned or formerly beneficially owned, on or after the Distribution
Date, by a Person known by the Company to be: (A) an Acquiring Person or an
Associate or Affiliate of an Acquiring Person; (B) a direct or indirect
transferee of an Acquiring Person (or of an Associate or Affiliate of such
Acquiring Person) who becomes or becomes entitled to be a transferee after the
Acquiring Person becomes such; or (C) a direct or indirect transferee of an
Acquiring Person (or of an Associate or Affiliate of such Acquiring Person) who
becomes or becomes entitled to be a transferee prior to or concurrently with the
Acquiring Person becoming such and receives such Rights pursuant to either (x) a
direct or indirect transfer (whether or not for consideration) from the
Acquiring Person (or from an Associate or Affiliate of such Acquiring Person) to
holders of equity interests in such Acquiring Person (or to holders of equity
interests in an Associate or Affiliate of such Acquiring Person) or to any
Person with whom such Acquiring Person (or an Associate or Affiliate of such
Acquiring Person) has any continuing agreement, arrangement or understanding
regarding the transferred Rights, or (y) a direct or indirect transfer which a
majority of the Board of Directors has determined is part of a plan, arrangement
or understanding which has as a primary purpose or effect the avoidance of
Section 7(e); or (ii) any Rights Certificate issued pursuant to this Agreement
upon transfer, exchange, replacement or adjustment of any other Rights
Certificate beneficially owned by a Person referred to in this Section 4(b),
shall contain (to the extent feasible) the following legend:
The Rights represented by this Rights Certificate are or were
beneficially owned by a Person who was or became an Acquiring Person or an
Affiliate or Associate of an Acquiring Person (as such terms are defined
in the Rights Agreement). Accordingly, this Rights Certificate and the
Rights represented hereby may become null and void in the circumstances
specified in Section 7(e) of the Rights Agreement.
Section 5. Execution, Countersignature and Registration.
(a) Each Rights Certificate shall be executed on behalf of the
Company by the Company's Chairman of the Board, Chief Executive Officer,
President or any Vice President, either manually or by facsimile signature, and
shall have affixed thereto the Company's seal or a facsimile thereof which shall
be attested by the Company's Secretary or an Assistant Secretary, either
manually or by facsimile signature. Each Rights Certificate shall be
countersigned by the Rights Agent either manually or, if permitted by the
Company, by facsimile signature and shall not be valid for any purpose unless so
countersigned. In case any officer of the Company who shall have signed a Rights
Certificate shall cease to be such officer of the Company before
countersignature by the Rights Agent and issuance and delivery by the Company,
such Rights Certificate nevertheless may be countersigned by the Rights Agent
and issued and delivered with the same force and effect as though the Person who
signed such Rights Certificate had not ceased to be such officer of the Company;
and any Rights Certificate may be signed on behalf of the
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Company by any Person who, at the actual date of the execution of such Rights
Certificate, shall be a proper officer of the Company to sign such Rights
Certificate, although at the date of the execution of this Agreement any such
Person was not such an officer.
(b) Following the Distribution Date, the Rights Agent shall keep or
cause to be kept, at its principal corporate trust office, books for
registration and transfer of the Rights Certificates issued hereunder. Such
books shall show the names and addresses of the respective holders of the Rights
Certificates, the number of Rights evidenced by each Rights Certificate, and the
certificate number and the date of issuance of each Rights Certificate.
Section 6. Transfer, Division, Combination and Exchange of
Rights Certificates; Mutilated, Destroyed, Lost or Stolen Rights Certificates.
(a) Subject to the provisions of Section 14, at any time after the
Close of Business on the Distribution Date and at or prior to the Close of
Business on the earliest of the Redemption Date, the Exchange Date or the
Expiration Date, any Rights Certificate or Rights Certificates may be
transferred, divided, combined or exchanged for another Rights Certificate or
Rights Certificates, entitling the registered holder to purchase a like number
of shares of Preferred Stock (or, following a Triggering Event or a Business
Combination, other securities, cash or other property, as the case may be) as
the Rights Certificate or Rights Certificates surrendered entitled such holder
to purchase immediately prior to such surrender. Any registered holder desiring
to transfer, divide, combine or exchange any Rights Certificate shall make such
request in writing delivered to the Rights Agent, and shall surrender the Rights
Certificate or Rights Certificates to be transferred, divided, combined or
exchanged at the principal corporate office of the Rights Agent. Thereupon the
Rights Agent shall countersign and deliver to the Person entitled thereto a
Rights Certificate or Rights Certificates, as the case may be, as so requested.
As a condition to such transfer, division, combination or exchange, the Company
may require payment by the surrendering holder of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection therewith. Neither
the Rights Agent nor the Company shall be obligated to take any action
whatsoever with respect to the transfer of any such surrendered Rights
Certificate until the registered holder shall have duly completed and executed
the form of assignment on the reverse side of such Rights Certificate and shall
have provided such additional evidence of the identity of the Beneficial Owner
(or such former or proposed Beneficial Owner) thereof or such Beneficial Owner's
Affiliates or Associates as the Company shall reasonably request.
(b) Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or mutilation of
a Rights Certificate, and, in case of loss, theft or destruction, of indemnity
or security reasonably satisfactory to them, and reimbursement to the Company
and the Rights Agent of all reasonable expenses incidental thereto, and upon
surrender to the Rights Agent and cancellation of the Rights Certificate if
mutilated, the Company will make and deliver a new Rights Certificate of like
tenor to the Rights Agent for countersignature by the Rights Agent and delivery
to the registered owner in lieu of the Rights Certificate so lost, stolen,
destroyed or mutilated.
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Section 7. Exercise of Rights; Purchase Price; Expiration Date
of Rights.
(a) Each Right shall entitle (except as otherwise provided in this
Agreement) the registered holder thereof, upon the exercise thereof as provided
in this Agreement, to purchase, for the Purchase Price, at any time after the
Distribution Date and prior to the earliest of the Expiration Date, the Exchange
Date or the Redemption Date, one one-hundredth (1/100) of a share of Preferred
Stock (or other securities, cash or other property or assets, as the case may
be, as provided herein), subject to adjustment from time to time as provided in
Sections 11 and 13.
(b) The registered holder of any Rights Certificate may exercise the
Rights evidenced thereby (except as otherwise provided in this Agreement) in
whole or in part (except that no fraction of a Right may be exercised) at any
time after the Distribution Date and prior to the earliest of the Expiration
Date, the Exchange Date or the Redemption Date, by surrendering the Rights
Certificate, with the form of election to purchase on the reverse side thereof
duly executed, to the Rights Agent at the principal corporate trust office of
the Rights Agent, together with payment of the Purchase Price for each one
one-hundredth of a share of Preferred Stock (or other securities, cash or other
property or assets, as the case may be, as provided herein) as to which the
Rights are exercised.
(c) Upon receipt of a Rights Certificate representing exercisable
Rights, with the form of election to purchase duly executed, accompanied by
payment of the Purchase Price for each one one-hundredth of a share of Preferred
Stock (or other securities, cash or other property or assets, as the case may
be, as provided herein) to be purchased and an amount in cash, certified bank
check or bank draft payable to the order of the Company equal to any applicable
transfer tax required to be paid by the surrendering holder pursuant to Section
9(d), the Rights Agent shall, subject to the provisions of this Agreement,
thereupon promptly (i)(A) requisition from any transfer agent for the Preferred
Stock (or make available, if the Rights Agent is the transfer agent for the
Preferred Stock) certificates for the total number of one one-hundredths of a
share of Preferred Stock to be purchased (and the Company hereby irrevocably
authorizes its transfer agent to comply with all such requests), or (B) if the
Company shall have elected to deposit the total number of shares of Preferred
Stock issuable upon exercise of the Rights with a depositary agent, requisition
from the depositary agent depositary receipts representing such number of one
one-hundredths of a share of Preferred Stock as are to be purchased (in which
case certificates for the Preferred Stock represented by such receipts shall be
deposited by the transfer agent with the depositary agent) and the Company shall
direct the depositary agent to comply with such request; (ii) after receipt of
such certificates or depositary receipts, cause the same to be delivered to or
upon the order of the registered holder of such Rights Certificate, registered
in such name or names as may be designated by such holder; and (iii) if
appropriate, requisition from the Company the amount of cash to be paid in lieu
of issuance of fractional shares in accordance with Section 14 and, promptly
after receipt thereof, cause the same to be delivered to or upon the order of
the registered holder of such Rights Certificate. In the event that the Company
is obligated to issue other securities (including shares of Common Stock) of the
Company, pay cash and/or distribute other property pursuant to this Agreement,
the Company will make all arrangements necessary so that such other securities,
cash and/or other property are available for distribution by the Rights Agent,
if and when appropriate.
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(d) In case the registered holder of any Rights Certificate shall
exercise less than all the Rights evidenced thereby, a new Rights Certificate
evidencing Rights equivalent to the Rights remaining unexercised shall be issued
by the Rights Agent and delivered to, or upon the order of, the registered
holder of such Rights Certificate or to his duly authorized assigns, subject to
the provisions of Sections 6 and 14.
(e) Notwithstanding anything in this Agreement to the contrary, any
Rights that are or were formerly beneficially owned on or after the Distribution
Date by (i) an Acquiring Person or any Associate or Affiliate of an Acquiring
Person; (ii) a direct or indirect transferee of an Acquiring Person (or of an
Associate or Affiliate of such Acquiring Person) who becomes, or becomes
entitled to be, a transferee after the Acquiring Person becomes such; or (iii) a
direct or indirect transferee of an Acquiring Person (or of an Associate or
Affiliate of such Acquiring Person) who becomes, or becomes entitled to be, a
transferee prior to or concurrently with the Acquiring Person becoming such and
receives such Rights pursuant to either (A) a direct or indirect transfer
(whether or not for consideration) from the Acquiring Person (or from an
Associate or Affiliate of such Acquiring Person) to holders of equity interests
in such Acquiring Person (or to holders of equity interests in any Associate or
Affiliate of such Acquiring Person) or to any Person with whom the Acquiring
Person (or an Associate or Affiliate of such Acquiring Person) has any
continuing agreement, arrangement or understanding regarding the transferred
Rights, and (B) a direct or indirect transfer which a majority of the Board of
Directors of the Company determines is part of a plan, arrangement or
understanding which has as a primary purpose or effect the avoidance of this
Section 7(e), shall, from and after the first occurrence of a Triggering Event
and without any further action, be null and void and no holder of such Rights
shall have any rights whatsoever with respect to such Rights whether under this
Agreement or otherwise; provided, however, that, in the case of transferees
described in clause (ii) or clause (iii) of this Section 7(e), any Rights
beneficially owned by such transferee shall be null and void only if and to the
extent such Rights were formerly beneficially owned by a Person who was, at the
time such Person beneficially owned such Rights, or who later became, an
Acquiring Person or an Affiliate or Associate of such Acquiring Person. The
Company shall use all reasonable efforts to ensure that the provisions of this
Section 7(e) and of Section 4(b) are complied with but shall have no liability
to any holder of a Rights Certificate or to any other Person as a result of the
Company's failure to make, or any delay in making (including any such failure or
delay by the Board of Directors of the Company), any determinations with respect
to an Acquiring Person or its Affiliates, Associates or transferees under this
Section 7(e) or any other provision of this Agreement.
(f) Notwithstanding anything in this Agreement to the contrary,
neither the Rights Agent nor the Company shall be obligated to undertake any
action with respect to the registered holder of a Rights Certificate upon the
occurrence of any purported exercise as set forth in this Section 7 unless such
registered holder shall have (i) completed and signed the certificate contained
in the form of election to purchase set forth on the reverse side of the Rights
Certificate surrendered for such exercise, and (ii) provided such additional
evidence of the identity of the Beneficial Owner (or former or proposed
Beneficial Owner) thereof or the Affiliates or Associates of such Beneficial
Owner (or former or proposed Beneficial Owner) as the Company shall reasonably
request.
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Section 8. Cancellation and Destruction of Rights Certificates. All
Rights Certificates surrendered for the purpose of exercise, transfer, division,
combination or exchange shall, if surrendered to the Company or to any of its
agents, be delivered to the Rights Agent for cancellation or in canceled form,
or, if surrendered to the Rights Agent, shall be canceled by it, and no Rights
Certificates shall be issued in lieu therefor except as expressly permitted by
the provisions of this Agreement. The Company shall deliver to the Rights Agent
for cancellation and retirement, and the Rights Agent shall so cancel and
retire, any other Rights Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights Agent shall deliver all
canceled Rights Certificates to the Company, or shall, at the written request of
the Company, destroy such canceled Rights Certificates, and in such case shall
deliver a certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Preferred Stock.
(a) The Company covenants and agrees that it will cause to be
reserved and kept available at all times out of its authorized and unissued
shares of Preferred Stock or its authorized and issued shares of Preferred Stock
held in its treasury (and, following the occurrence of a Triggering Event or a
Business Combination, out of its authorized and unissued shares of Common Stock
and/or other securities or out of its authorized and issued shares of Common
Stock and/or other securities held in its treasury) free from preemptive rights
or any right of first refusal, a sufficient number of shares of Preferred Stock
(and, following the occurrence of a Triggering Event or a Business Combination,
shares of Common Stock and/or other securities) to permit the exercise in full
of all Rights from time to time outstanding.
(b) The Company further covenants and agrees, so long as the
Preferred Stock (and, following the occurrence of a Triggering Event or a
Business Combination, shares of Common Stock and/or other securities) issuable
upon the exercise of Rights may be listed on any United States national
securities exchange or quoted on any automated quotation system, to use its
reasonable best efforts to cause, from and after the time that the Rights become
exercisable, all such shares and/or other securities reserved for such issuance
to be listed on such exchange or quoted on such automated quotation system upon
official notice of issuance upon such exercise.
(c) The Company further covenants and agrees that it will take all
such action as may be necessary to ensure that all shares of Preferred Stock
(and, following the occurrence of a Triggering Event or a Business Combination,
shares of Common Stock and/or other securities) delivered upon the exercise of
Rights shall, at the time of delivery of the certificates for such shares and/or
such other securities (subject to payment of the Purchase Price), be duly and
validly authorized and issued, fully paid, nonassessable, freely tradeable, not
subject to liens or encumbrances, and free of preemptive rights, rights of first
refusal or any other restrictions or limitations on the transfer or ownership
thereof, of any kind or nature whatsoever.
(d) The Company further covenants and agrees that it will pay when
due and payable any and all federal and state transfer taxes and charges which
may be payable in respect of the original issuance or delivery of the Rights
Certificates or of any certificates for shares of Preferred Stock (or Common
Stock and/or other securities, as the case may be) upon the exercise of Rights.
The Company shall not, however, be required to (i) pay any transfer tax which
may be payable in respect of any transfer involved in the issuance or delivery
of any Rights
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Certificates or the issuance or delivery of any certificates for shares of
Preferred Stock (or Common Stock and/or other securities as the case may be) to
a Person other than, or in a name other than that of, the registered holder of
the Rights Certificate evidencing Rights surrendered for exercise; or (ii)
transfer or deliver any Rights Certificate or issue or deliver any certificates
for shares of Preferred Stock (or Common Stock and/or other securities as the
case may be) upon the exercise of any Rights until any such tax shall have been
paid (any such tax being payable by the holder of such Rights Certificate at the
time of surrender) or until it has been established to the Company's
satisfaction that no such tax is due.
(e) The Company shall use its reasonable best efforts (i) as soon as
practicable following the Stock Acquisition Date (provided the consideration to
be delivered by the Company upon exercise of the Rights has been determined in
accordance with Section 11(a)(iii)), or as soon as is otherwise required by law
following the Distribution Date, as the case may be, to prepare and file a
registration statement on an appropriate form under the Securities Act with
respect to the securities purchasable upon exercise of the Rights; (ii) to cause
such registration statement to become effective as soon as practicable after
such filing; and (iii) to cause such registration statement to remain effective
(with a prospectus at all times meeting the requirements of the Securities Act)
until the earlier of (A) the date as of which Rights are no longer exercisable
for such securities or (B) the Expiration Date. The Company shall also use its
reasonable best efforts to take such action as may be necessary or appropriate
under, or to ensure compliance with, the securities or "blue sky" laws of the
various states in connection with the exercise of the Rights. The Company may
temporarily suspend, for a period of time not to exceed 90 days after the date
set forth in clause (i) of this Section 9 (e), the exercisability of the Rights
in order to prepare and file such registration statement and permit it to become
effective. Upon any such suspension, the Company shall make a public
announcement stating that the exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time as the suspension is no
longer in effect. Notwithstanding any provision of this Agreement to the
contrary, the Rights shall not be exercisable in any jurisdiction unless the
requisite qualification in such jurisdiction shall have been obtained and until
a registration statement has been declared effective under the Securities Act.
Section 10. Preferred Stock Record Date. Each Person in whose name
any certificate for shares of Preferred Stock (or Common Stock and/or other
securities, as the case may be) is issued upon the exercise of Rights shall for
all purposes be deemed to have become the holder of record of the Preferred
Stock (or Common Stock and/or other securities, as the case may be) represented
thereby on, and such certificate shall be dated, the date upon which the Rights
Certificate evidencing such Rights was duly surrendered and payment of the
Purchase Price (and any applicable transfer taxes) was made; provided, however,
that if the date of such surrender and payment is a date upon which the
Preferred Stock (or Common Stock and/or other securities, as the case may be)
transfer books of the Company are closed, such Person shall be deemed to have
become the record holder of such shares (or Common Stock and/or such other
securities, as the case may be) on, and such certificate shall be dated, the
next succeeding Business Day on which the Preferred Stock (or Common Stock
and/or other securities, as the case may be) transfer books of the Company are
open.
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Section 11. Adjustments to Purchase Price, Number of Shares or
Number of Rights. The Purchase Price, the number and kind of securities, cash
and other property obtainable upon exercise of each Right and the number of
Rights outstanding shall be subject to adjustment from time to time as provided
in this Section 11.
(a) (i) In the event the Company shall at any time on or after the
date of this Agreement (A) pay a dividend or make a distribution on the
outstanding shares of Preferred Stock payable in shares of Preferred Stock, (B)
subdivide (by a stock split or otherwise) the outstanding Preferred Stock into a
larger number of shares, (C) combine (by a reverse stock split or otherwise) the
outstanding Preferred Stock into a smaller number of shares, or (D) issue any
securities in a reclassification of the Preferred Stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the surviving corporation), except as otherwise provided in this
Section 11(a), then in each such event the Purchase Price and the Redemption
Price set forth in Section 23, as each is in effect at the time of the record
date for such dividend or distribution, or of the effective date of such
subdivision, combination or reclassification, and the number and kind of shares
of capital stock or interests therein issuable on such date, shall be
proportionately adjusted so that the holder of any Right exercised after such
time shall be entitled to receive the aggregate number and kind of shares of
capital stock or interests therein which, if such Right had been exercised
immediately prior to such date and at a time when the Preferred Stock transfer
books of the company were open, such holder would have owned upon such exercise
and been entitled to receive by virtue of such dividend, subdivision,
combination or reclassification. If an event occurs which would require an
adjustment under both this Section 11(a)(i) and Section 11(a)(ii), the
adjustment provided for in this Section 11(a)(i) shall be in addition to, and
shall be made prior to, any adjustment required pursuant to Section 11(a)(ii).
(ii) Upon the first occurrence of a Triggering Event, proper
provision shall be made so that each holder of a Right, except as otherwise
provided in this Agreement, shall thereafter have the right to receive, and the
Company shall issue, upon exercise thereof at a price equal to the then-current
Purchase Price multiplied by the number of one one-hundredths of a share of
Preferred Stock for which a Right is then exercisable in accordance with the
terms of this Agreement, in lieu of the number of one one-hundredths of a share
of Preferred Stock or other securities receivable upon exercise of a Right prior
to the occurrence of the Triggering Event, such number of shares of Common Stock
of the Company as shall equal the result obtained by (x) multiplying the
then-current Purchase Price by the number of one-hundredths of a share of
Preferred Stock or other securities for which a Right was then exercisable
(without giving effect to such Triggering Event) and (y) dividing that product
by 50% of the Current Market Price per share of Common Stock on the date of the
occurrence of the Triggering Event (such number of shares being referred to as
the "Adjustment Shares"); provided, however, that if the transaction or event
that would otherwise give rise to the foregoing adjustment is also subject to
the provisions of Section 13, then only the provisions of Section 13 shall apply
and no adjustment shall be made pursuant to this Section 11(a)(ii). Upon the
occurrence of such Triggering Event, the Purchase Price required to be paid in
order to exercise a Right shall be unchanged, and the Purchase Price shall be
appropriately adjusted to reflect, and shall thereafter mean, the amount
required to be paid per share of Common Stock upon exercise of a Right.
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(iii) In lieu of issuing shares of Common Stock in accordance
with Section 11(a)(ii), the Company may, if a majority of the Board of Directors
of the Company determines that such action is necessary or appropriate and not
contrary to the interests of holders of Rights, elect to, and, if that the
number of shares of Common Stock which are authorized by the Company's
certificate of incorporation, but which are not outstanding or reserved for
issuance for purposes other than upon exercise of the Rights, are not sufficient
to permit the exercise in full of the Rights in accordance with Section
11(a)(ii), the Company shall take all such action as may be necessary to
authorize, issue or pay, upon the exercise of Rights, cash (including by way of
a reduction of the Purchase Price), debt securities, property, assets or other
equity securities of the Company (including, without limitation, shares or units
of shares of preferred stock) which the Board of Directors of the Company has
determined (which determination shall be final, binding and conclusive for all
purposes) to have essentially the same value or economic rights as shares of
Common Stock (such equity securities referred to herein as "Common Stock
Equivalents), or any combination of the foregoing, having an aggregate value
equal to the value of the Adjustment Shares which otherwise would have been
issuable pursuant to Section 11(a)(ii), which aggregate value shall be
determined by a majority of the Board of Directors (which determination shall be
final, binding and conclusive for all purposes). If a majority of the Board of
Directors determines to issue or deliver any equity securities (other than
Common Stock or Common Stock Equivalents), debt securities and/or other property
or assets pursuant to this Section 11(a)(iii), the value of such securities
and/or property or assets shall be determined by a majority of the Board of
Directors of the Company based upon the advice of a nationally recognized
investment banking firm selected by a majority of the Board of Directors of the
Company (which determination shall be final, binding and conclusive for all
purposes). If the Company is required to make adequate provision to deliver
value pursuant to the first sentence of this Section 11(a)(iii) and the Company
shall not have made such adequate provision to deliver value within ninety (90)
days following the first occurrence of a Triggering Event (the "Substitution
Period"), then notwithstanding any provision of Section 11(a)(ii) or this
Section 11(a)(iii) to the contrary, the Company shall be obligated to deliver,
upon the surrender for exercise of a Right and without requiring payment of the
Purchase Price, shares of Common Stock (to the extent available) and then, if
necessary, cash, which shares and/or cash have an aggregate value equal to the
excess of the value of the Adjustment Shares over the Purchase Price. If both
Common Stock and cash are to be delivered pursuant to the preceding sentence,
amounts of both Common Stock and cash shall be delivered upon surrender of each
Right in a ratio of Common Stock to cash that bears the same ratio as the total
value of all Common Stock to be delivered (as determined pursuant to this
Section 11(a)(iii)) bears to the total value of all cash to be delivered;
provided, however, that the Company may adjust such ratio to avoid issuing any
fractional shares of Common Stock so long as the method of adjustment is applied
consistently to each holder of Rights entitled to receive value with respect
thereto pursuant to this Section 11(a)(iii). To the extent that the Company
determines that some action is to be taken pursuant to the first and/or third
sentences of this Section 11(a)(iii), the Company may suspend the exercisability
of the Rights but in no event to a time later than the expiration of the
Substitution Period. In the event of any such suspension, the Company shall
issue a public announcement stating that the exercisability of the Rights has
been temporarily suspended, as well as a public announcement at such time as the
suspension is no longer in effect. For purposes of this Section 11(a)(iii), the
value of each Adjustment Share shall be the Current Market Price per share of
the Common Stock on the Stock Acquisition Date and the per share or
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per unit value of any Common Stock Equivalent shall be deemed to equal the
Current Market Price per share of the Common Stock on such date.
(iv) A majority of the Board of Directors of the Company may,
at its option, at any time and from time to time after the first occurrence of a
Triggering Event, cause the Company to exchange, for all or part of the
then-outstanding and exercisable Rights (which shall not include Rights that
have become void pursuant to the provisions of Section 7(e)), shares of Common
Stock or Common Stock Equivalents at an exchange ratio of one share of Common
Stock per Right, appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date of this Agreement (such
exchange ratio being hereinafter referred to as the "Exchange Ratio"). Any
partial exchange shall be effected on a pro rata basis based on the number of
Rights (other than Rights which have become void pursuant to the provisions of
Section 7(e)) held by each holder of Rights. Notwithstanding the foregoing, the
Board of Directors shall not be empowered to effect such exchange at any time
after any Person (other than an Exempt Person), together with all Affiliates and
Associates of such Person, becomes the Beneficial Owner of 50% or more of the
Outstanding Common Stock.
Immediately upon the action of a majority of the Board of Directors
of the Company ordering the exchange of any Rights pursuant to this Section
11(a)(iv) and without any further action and without any notice, the right to
exercise such Rights shall terminate and the only right thereafter of a holder
of such Rights shall be to receive that number of shares of Common Stock and/or
Common Stock Equivalents equal to the number of such Rights held by such holder
multiplied by the Exchange Ratio. The Company shall promptly give public notice
of any such exchange and, in addition, the Company shall promptly mail a notice
of any such exchange to all of the holders of such Rights in accordance with
Section 25; provided, however, that the failure to give, any delay in giving or
any defect in, such notice shall not affect the validity of such exchange. Each
such notice of exchange will state the method by which the exchange of the
Common Stock or Common Stock Equivalents for Rights will be effected and, in the
event of any partial exchange, the number of Rights which will be exchanged. In
the event that the number of shares of Common Stock which is authorized but not
outstanding or reserved for issuance for a purpose other than exercise of the
Rights is not sufficient to permit any exchange of Rights as contemplated in
accordance with this Section 11(a)(iv), the Board of Directors of the Company
shall take all such action within its power as may be necessary to authorize
additional shares of Common Stock for issuance upon exchange of the Rights. The
Company shall not be required to issue fractions of shares of Common Stock or
Common Stock Equivalents or to distribute certificates which evidence fractional
shares of Common Stock or Common Stock Equivalents. In lieu of such fractional
shares of Common Stock or Common Stock Equivalents, the Company shall pay to the
registered holders of the Rights Certificates with regard to which such
fractional shares of Common Stock or Common Stock Equivalents would otherwise be
issuable an amount in cash equal to the product derived by multiplying (x) the
subject fraction, by (y) the last sale price of the Company's Common Stock on
the fifth Trading Day following the public announcement of the exchange by the
Company, or, in case no such sale takes place on such day, the average of the
closing bid and asked prices on such day, in either case on a when issued basis
(taking into
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account the exchange), as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on the NYSE (or, if the Company's Common Stock is not so listed or
traded, then as determined in the manner provided under the definition of
"Current Market Price," adjusted to take into account the exchange). For the
purposes of this Section 11(a)(iv), the value of any Common Stock Equivalent on
any date shall be the same as the value of the Common Stock, as determined
pursuant to the previous sentence, on such date.
(b) If the Company shall at any time on or after the date of this
Agreement fix a record date for the issuance of rights, options or warrants to
holders of Preferred Stock entitling them (for a period expiring within 45
calendar days after such record date) to subscribe for or purchase Preferred
Stock or Equivalent Shares (or securities convertible into or exchangeable for
Preferred Stock or Equivalent Shares) at a price per share of Preferred Stock or
Equivalent Shares (or, in the case of a convertible or exchangeable security,
having a conversion or exchange price per share of Preferred Stock or Equivalent
Shares) less than the Current Market Price per share of Preferred Stock on such
record date, the Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be the number of shares
of Preferred Stock and Equivalent Shares (if any) outstanding on such record
date, plus the number of shares of Preferred Stock or Equivalent Shares, as the
case may be, which the aggregate exercise, conversion and/or exchange price for
the total number of shares of Preferred Stock or Equivalent Shares, as the case
may be, which are obtainable upon exercise, conversion and/or exchange of such
rights, options, warrants or convertible or exchangeable securities would
purchase at such Current Market Price, and the denominator of which shall be the
number of shares of Preferred Stock and Equivalent Shares (if any) outstanding
on such record date, plus the number of additional shares of Preferred Stock or
Equivalent Shares, as the case may be, which may be obtained upon exercise,
conversion and/or exchange of such rights, options, warrants or convertible or
exchangeable securities. 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 a majority of the
Board of Directors of the Company, whose determination shall be described in a
statement filed with the Rights Agent and shall be final, binding and conclusive
for all purposes. Preferred Stock and Equivalent Shares owned by or held for the
account of the Company or any Subsidiary of the Company shall not be deemed
outstanding for the purpose of any such computation. Such adjustment shall be
made successively whenever such a record date is fixed; and in the event that
such rights, options or warrants are not issued following such adjustment, the
Purchase Price shall be readjusted to be the Purchase Price that would have been
in effect if such record date had not been fixed.
(c) In case the Company shall at any time after the date of this
Agreement fix a record date for the making of a distribution to holders of
Preferred Stock (including any such distribution made in connection with a
reclassification of the Preferred Stock or a consolidation or merger in which
the Company is the surviving corporation) of securities (other than Preferred
Stock and rights, options, warrants or convertible or exchangeable securities
referred to in Section 11(b)), cash (other than a regular periodic cash dividend
at an annual rate not in excess of: (x) 125% of the annual rate of the regular
cash dividend paid on the Preferred Stock during the immediately preceding
fiscal year (or, if the Preferred Stock was not outstanding during such
preceding fiscal year, then 125% of the annual rate of the regular cash dividend
paid on the Common Stock during such year), or (y) in the event that a regular
cash dividend was not paid on the Preferred Stock (or Common Stock) during such
preceding fiscal year, 5% of the Current Market Value of the Preferred Stock on
the date such regular cash dividend was first declared), property, evidences of
indebtedness, or assets, the Purchase Price to be in effect after such record
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date shall be determined by multiplying the Purchase Price in effect immediately
prior to such record date by a fraction, the numerator of which shall be the
Current Market Price per share of Preferred Stock on such record date, less the
fair market value (as determined in good faith by a majority of the Board of
Directors of the Company, whose determination shall be described in a statement
filed with the Rights Agent and shall be final, binding and conclusive for all
purposes) of the portion of such securities, cash, property, evidences of
indebtedness or assets to be so distributed in respect of one share of Preferred
Stock, and the denominator of which shall be such Current Market Price per share
of Preferred Stock on such record date. Such adjustments shall be made
successively whenever such a record date is fixed; and in the event that such
distribution is not made following such adjustment, the Purchase Price shall be
readjusted to be the Purchase Price that would have been in effect if such
record date had not been fixed.
(d) Except as provided below, no adjustment in the Purchase Price
shall be required unless such adjustment would require an increase or decrease
of at least 1% in the Purchase Price; provided, however, that any adjustments
which by reason of this Section 11(d) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Section 11 shall be made to the nearest cent, to the
nearest one hundred-thousandth of a share of Common Stock, or to the nearest one
hundred-thousandths of a share of Preferred Stock. Notwithstanding the first
sentence of this Section 11(d), any adjustment required by this Section 11 shall
be made no later than the earlier of (i) three years from the date of the
transaction which requires such adjustment and (ii) the Expiration Date.
(e) If, as a result of an adjustment made pursuant to Section 11(a)
or Section 13(a), the holder of any Right thereafter exercised shall become
entitled to receive any securities of the Company other than shares of Preferred
Stock, thereafter the Purchase Price and the number of such other securities so
receivable upon exercise of any Right shall be subject to adjustment from time
to time in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to the shares of Preferred Stock contained in this
Section 11 and the provisions of Sections 7, 9, 10, 12, 13, 14 and 24 with
respect to the shares of Preferred Stock shall apply on like terms to any such
other securities.
(f) All Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of shares of Preferred
Stock or other securities, cash or other property purchasable from time to time
hereunder upon exercise of the Rights, all subject to further adjustment as
provided in this Agreement.
(g) Unless the Company shall have exercised its election as provided
in Section 11(h), upon each adjustment of the Purchase Price as a result of any
calculation made pursuant to Sections 11(a)(i), 11(b) and 11(c), each Right
outstanding immediately prior to the making of such adjustment shall thereafter
evidence the right to purchase, at the adjusted Purchase Price, that number of
one one-hundredths of a share of Preferred Stock (calculated to the nearest one
hundred-thousandths of a share of Preferred Stock) obtained by (i) multiplying
the number of one one-hundredths of a share of Preferred Stock covered by a
Right immediately prior to adjustment pursuant to this Section 11(g) by the
Purchase Price in effect immediately
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prior to such adjustment of the Purchase Price and (ii) dividing the product so
obtained by the Purchase Price in effect immediately after such adjustment of
the Purchase Price.
(h) The Company may elect, on or after the date of any adjustment of
the Purchase Price or any adjustment to the number of shares of Preferred Stock
for which a Right may be exercised, to adjust the number of Rights, in lieu of
an adjustment in the number of one one-hundredths of a share of Preferred Stock
purchasable upon the exercise of a Right. Each of the Rights outstanding after
such adjustment of the number of Rights shall be exercisable for the number of
one one-hundredths of a share of Preferred Stock for which a Right was
exercisable immediately prior to such adjustment. Each Right outstanding prior
to such adjustment of the number of Rights shall become that number of Rights
(calculated to the nearest one hundred-thousandth) obtained by dividing the
Purchase Price in effect immediately prior to such adjustment by the Purchase
Price in effect immediately after such adjustment. The Company shall make a
public announcement of its election to adjust the number of Rights, indicating
the record date for the adjustment, and, if known at the time, the amount of the
adjustment to be made. This record date may be the date on which the Purchase
Price is adjusted or any day thereafter, but, if the Rights Certificates have
been issued, shall be at least 10 days after the date of the public
announcement. If Rights Certificates have been issued, upon each adjustment of
the number of Rights pursuant to this Section 11(h) the Company shall, as
promptly as practicable, cause to be distributed to holders of record of Rights
Certificates on such record date a new Rights Certificate evidencing, subject to
Section 14, the additional Rights to which such holders shall be entitled as a
result of such adjustment, or, at the option of the Company, shall cause to be
distributed to such holders of record, in substitution and replacement for the
Rights Certificates held by such holders prior to the date of adjustment and
upon surrender thereof (if required by the Company), new Rights Certificates
evidencing all the Rights to which such holders shall be entitled after such
adjustment. Rights Certificates to be so distributed shall be issued, executed
and countersigned in the manner provided for in this Agreement (and may bear, at
the option of the Company, the adjusted Purchase Price) and shall be registered
in the names of the holders of record of Rights Certificates on the record date
specified in the public announcement.
(i) Irrespective of any adjustment or change in the Purchase Price
or the number or kind of shares issuable upon the exercise of the Rights, the
Rights Certificates theretofore and thereafter issued may continue to express
the Purchase Price per one one-hundredth of a share of Preferred Stock and the
number of shares of Preferred Stock which were expressed in the initial Rights
Certificates issued hereunder.
(j) Before taking any action that would cause an adjustment reducing
the Purchase Price below the then par value, if any, of one one-hundredth of a
share of Preferred Stock issuable upon exercise of the Rights, the Company shall
take any corporate action which may, in the opinion of its counsel, be necessary
in order that the Company may validly and legally issue fully paid and
nonassessable one one-hundredth shares of such Preferred Stock at such adjusted
Purchase Price.
(k) In any case in which this Section 11 shall require that an
adjustment be made effective as of a record date for a specified event, the
Company may elect to defer until the occurrence of such event the issuance to
the holder of any Right exercised after such record date
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the shares of Preferred Stock and other securities, cash or property of the
Company, if any, issuable upon such exercise over and above the shares of
Preferred Stock and other securities, cash or property of the Company, if any,
issuable upon such exercise on the basis of the Purchase Price in effect prior
to such adjustment; provided, however, that the Company shall deliver to such
holder a due bill or other appropriate instrument evidencing such holder's right
to receive such additional shares (fractional or otherwise) or other securities,
cash or property upon the occurrence of the event requiring such adjustment.
(l) Anything in this Section 11 to the contrary notwithstanding, the
Company shall be entitled to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this Section 11, as and to
the extent that the Board of Directors of the Company in its sole discretion
shall determine to be advisable in order that any combination or subdivision of
the Preferred Stock, issuance wholly for cash of any Preferred Stock at less
than the Current Market Price per share of Preferred Stock, issuance wholly for
cash of Preferred Stock or securities which by their terms are convertible into
or exchangeable or exercisable for Preferred Stock, stock dividends or issuance
of rights, options or warrants referred to in this Section 11, hereafter made by
the Company to holders of its Preferred Stock, shall not be taxable to such
stockholders.
(m) The Company covenants and agrees that it shall not, at any time
after the Distribution Date, (i) consolidate with, (ii) merge with or into, or
(iii) directly or indirectly sell, lease or otherwise transfer or dispose of (in
one transaction or a series of related transactions) property, assets or earning
power aggregating more than 50% of the property, assets or earning power of the
Company and its Subsidiaries taken as a whole, to any other Person if (A) at the
time of or immediately after such consolidation, merger, sale, lease, transfer
or disposition there are any rights, warrants, securities or other instruments
outstanding or agreements in effect which would substantially diminish or
otherwise eliminate the benefits intended to be afforded by the Rights; (B)
prior to, simultaneously with or immediately after such consolidation, merger,
sale, lease, transfer or disposition the stockholders (or equity holders) of the
Person who constitutes, or would constitute, the Principal Party for purposes of
Section 13(a) hereof shall have received a distribution of Rights previously
owned by such Person or any of its Affiliates or Associates; or (C) the form or
nature of organization of the Principal Party would preclude or limit the
exercisability of the Rights. The Company shall not consummate any such
consolidation, merger, sale, lease, transfer or disposition unless prior thereto
the Company and such other Person shall have executed and delivered to the
Rights Agent a supplemental agreement evidencing compliance with this Section
11(m).
(n) The Company covenants and agrees that, after the Stock
Acquisition Date, it will not, except as permitted by Section 11(a)(iv), 26 or
29(b), take (or permit any Subsidiary to take) any action if at the time such
action is taken it is reasonably foreseeable that such action will, directly or
indirectly, diminish or otherwise eliminate the benefits intended to be afforded
by the Rights.
(o) Anything in this Agreement to the contrary notwithstanding, if
the Company shall at any time prior to the Distribution Date (i) pay a dividend
or make a distribution on the outstanding shares of Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common Stock into a
larger number of shares, (iii) combine (by a
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reverse stock split or otherwise) the outstanding Common Stock into a smaller
number of shares, or (iv) issue any securities in a reclassification of the
Common Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the surviving corporation), then
the number of Rights associated with each share of Common Stock or (in a
reclassification) each security then outstanding, or issued or delivered
thereafter but prior to the Distribution Date, and the Purchase Price under, and
the number of one one-hundredths of a share of Preferred Stock issuable in
respect of, the Rights, shall be proportionately adjusted, so that following
such event one Right (with the Purchase Price and the number of one
one-hundredths of a share of Preferred Stock proportionately adjusted
thereunder) shall thereafter be associated with each share of Common Stock or
(in a reclassification) each security then outstanding, or issued or delivered
thereafter but prior to the Distribution Date. For example, if the Company
effects a two-for-one stock split of the Common Stock at a time when each Right
(if it becomes exercisable) would entitle the holder to purchase one
one-hundredth of a share of Preferred Stock for a Purchase Price of $"Z", then
following such stock split each previous Right would be split into two current
Rights and thereafter each such current Right, upon becoming exercisable, would
(subject to further adjustment) entitle the holder to purchase one one-hundredth
of a share of Preferred Stock at a Purchase Price of 1/2 x $"Z".
Section 12. Certification of Adjustments. Whenever an adjustment is
made as provided in Section 11 or 13, the Company shall (a) promptly prepare a
certificate setting forth such adjustment and a brief statement of the facts
accounting for such adjustment, (b) promptly file with the Rights Agent and with
each transfer agent for the Preferred Stock a copy of such certificate, and (c)
mail or cause the Rights Agent to mail a brief summary thereof to each holder of
a Rights Certificate (or, if no Rights Certificates have been issued, to each
holder of a certificate representing shares of Common Stock) in accordance with
Section 25. Notwithstanding the foregoing sentence, the failure of the Company
to give such notice shall not affect the validity of or the force or effect of
or the requirement for such adjustment. Any adjustment to be made pursuant to
Section 11 or 13 shall be effective as of the date of the event giving rise to
such adjustment.
Section 13. Consolidation, Merger or Sale or Transfer of
Property, Assets or Earning Power.
(a) A "Business Combination" shall be deemed to occur in the event
that, on or following a Triggering Event, (i) the Company shall, directly or
indirectly, consolidate with, or merge with and into, any other Person (other
than a Subsidiary of the Company in a transaction that complies with Section
11(m) and Section 11(n)) in a transaction in which the Company is not the
continuing, resulting or surviving corporation of such merger or consolidation;
(ii) any Person (other than a Subsidiary of the Company in a transaction that
complies with Section 11(m) and Section 11(n)) shall, directly or indirectly,
consolidate with the Company, or shall merge with and into the Company, in a
transaction in which the Company is the continuing, resulting or surviving
corporation of such merger or consolidation and, in connection with such merger
or consolidation, all or part of the Common Stock shall be changed (including,
without limitation, any conversion into or exchange for securities of the
Company or of any other Person, cash or
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any other property); (iii) the Company shall, directly or indirectly, effect a
share exchange in which all or part of the Common Stock shall be changed
(including, without limitation, any conversion into or exchange for securities
of any other Person, cash or any other property); or (iv) the Company shall,
directly or indirectly, sell, lease, exchange, mortgage, pledge (other than
pledges in the ordinary course of the Company's financing activities) or
otherwise transfer or dispose of (or one or more of its Subsidiaries shall
directly or indirectly sell, lease, exchange, mortgage, pledge (other than
pledges in the ordinary course of the Company's financing activities) or
otherwise transfer or dispose of), in one transaction or a series of related
transactions, property, assets or earning power aggregating more than 50% of the
property, assets or earning power of the Company and its Subsidiaries (taken as
a whole) to any other Person (other than the Company or any of its Subsidiaries
in one or more transactions each and all of which comply with Section 11(m) and
Section 11(n)).
In the event of a Business Combination, proper provision shall be
made so that each holder of a Right (except as otherwise provided in this
Agreement) shall thereafter have the right to receive, upon the exercise thereof
at a price equal to the Purchase Price immediately prior to the first occurrence
of a Triggering Event multiplied by the number of one one-hundredths of a share
of Preferred Stock for which a Right was exercisable immediately prior to the
first occurrence of a Triggering Event (without giving effect to the Triggering
Event) in accordance with the terms of this Agreement, such number of shares of
Common Stock of the Principal Party as shall be equal to the result obtained by
(x) multiplying the Purchase Price immediately prior to the first occurrence of
a Triggering Event by the number of one one-hundredths of a share of Preferred
Stock for which a Right was exercisable immediately prior to the first
occurrence of a Triggering Event (without giving effect to the Triggering
Event), and (y) dividing that product by 50% of the Current Market Price per
share of the Common Stock of such Principal Party immediately prior to the
consummation of such Business Combination. All shares of Common Stock of any
Person for which any Right may be exercised after consummation of a Business
Combination as provided in this Section 13(a) shall, when issued upon exercise
thereof in accordance with this Agreement, be duly and validly authorized and
issued, fully paid, nonassessable, freely tradeable, not subject to liens or
encumbrances, and free of preemptive rights, rights of first refusal or any
other restrictions or limitations on the transfer or ownership thereof of any
kind or nature whatsoever.
(b) After consummation of any Business Combination, (i) the
Principal Party shall be liable for, and shall assume, by virtue of such
Business Combination and without the necessity of any further act, all the
obligations and duties of the Company pursuant to this Agreement, (ii) the term
"Company" as used in this Agreement shall thereafter be deemed to refer to such
Principal Party, and (iii) such Principal Party shall take all steps (including,
but not limited to, the reservation of a sufficient number of shares of its
Common Stock in accordance with Section 9) in connection with such Business
Combination as is necessary to ensure that the provisions of this Agreement
shall thereafter be applicable, as nearly equivalent as practicable, in relation
to the shares of its Common Stock thereafter deliverable upon the exercise of
the Rights.
(c) The Company shall not consummate any Business Combination unless
prior thereto (i) the Principal Party shall have a sufficient number of
authorized shares of its Common Stock which have not been issued or reserved for
issuance (other than shares reserved for issuance pursuant to this Agreement to
the holders of Rights) to permit the exercise in full of the Rights in
accordance with this Section 13; (ii) the Company and such Principal Party shall
have executed and delivered to the Rights Agent a supplemental agreement
providing for the fulfillment of the Principal Party's obligations and the terms
as set forth in paragraphs (a) and (b)
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of this Section 13 and further providing that, as soon as practicable on or
after the date of such Business Combination, the Principal Party, at its own
expense, shall (A) prepare and file, if necessary, a registration statement on
an appropriate form under the Securities Act with respect to the Rights and the
securities purchasable upon exercise of the Rights; (B) use its reasonable best
efforts to cause such registration statement to become effective as soon as
practicable after such filing and remain effective (with a prospectus at all
times meeting the requirements of the Securities Act) until the Expiration Date;
(C) deliver to holders of the Rights historical financial statements for the
Principal Party and each of its Affiliates which comply in all respects with the
requirements for registration on Form 10 (or any successor form) under the
Exchange Act; (D) use its reasonable best efforts to qualify or register the
Rights and the securities purchasable upon exercise of the Rights under the
state securities or "blue sky" laws of such jurisdictions as may be necessary or
appropriate; (E) use its reasonable best efforts to list the Rights and the
securities purchasable upon exercise of the Rights on a United States national
securities exchange; and (F) obtain waivers of any rights of first refusal or
preemptive rights in respect of the Common Stock of the Principal Party subject
to purchase upon exercise of outstanding Rights; (iii) the Company and the
Principal Party shall have furnished to the Rights Agent an opinion of
independent counsel stating that such supplemental agreement is a legal, valid
and binding agreement of the Principal Party enforceable against the Principal
Party in accordance with its terms; and (iv) the Company and the Principal Party
shall have filed with the Rights Agent a certificate of a nationally recognized
firm of independent accountants setting forth the number of shares of Common
Stock of such issuer which may be purchased upon the exercise of each Right
after the consummation of such Business Combination.
(d) The provisions of this Section 13 shall similarly apply to
successive Business Combinations. In the event a Business Combination shall be
consummated at any time after the occurrence of a Triggering Event, the Rights
which have not theretofore been exercised shall thereafter be exercisable for
the consideration and in the manner described in Section 13(a). Following a
Business Combination, the provisions of Section 11(a)(ii) shall be of no effect.
(e) Notwithstanding any other provision of this Agreement to the
contrary, no adjustment to the number of shares of Preferred Stock (or fractions
of a share) or other securities, cash or other property for which a Right is
exercisable or the number of Rights outstanding or associated with each share of
Common Stock or any similar or other adjustment shall be made or be effective if
such adjustment would have the effect of reducing or limiting the benefits the
holders of the Rights would have had absent such adjustment, including, without
limitation, the benefits under Sections 11 and 13, unless the terms of this
Agreement are amended so as to preserve such benefits.
(f) The Company covenants and agrees that it shall not effect any
Business Combination if at the time of, or immediately after such Business
Combination, there are any rights, options, warrants or other instruments
outstanding which would diminish or otherwise eliminate the benefits intended to
be afforded by the Rights.
(g) Without limiting the generality of this Section 13, in the event
the nature of the organization of any Principal Party shall preclude or limit
the acquisition of Common Stock of such Principal Party upon exercise of the
Rights as required by Section 13(a) as a result of a Business Combination, it
shall be a condition to such Business Combination that such
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Principal Party shall take such steps (including, but not limited to, a
reorganization) as may be necessary to ensure that the benefits intended to be
derived under this Section 13 upon the exercise of the Rights are assured to the
holders thereof.
(h) In addition to, and without limiting, any other provision of
this Section 13, in case the Principal Party which is to be a party to a
transaction referred to in this Section 13 has provision in any of its
authorized securities or in its certificate of incorporation or by-laws or other
instrument governing its corporate affairs (or equivalent documents for a
non-corporate Person), which provision would have the effect of (i) causing such
Principal Party to issue (other than to holders of Rights pursuant to this
Section 13), in connection with, or as a consequence of, the consummation of a
transaction referred to in this Section 13, Common Stock of such Principal Party
at less than the then Current Market Price per share or securities exercisable
for, or convertible into, Common Stock of such Principal Party at less than such
then Current Market Price, or (ii) providing for any special payment, tax or
similar provisions in connection with the issuance of the Common Stock of such
Principal Party pursuant to the provisions of this Section 13, then, in such
event, the Company hereby agrees with each holder of Rights that it shall not
consummate any such transaction unless prior thereto the Company and such
Principal Party shall have executed and delivered to the Rights Agent a
supplemental agreement providing that the provision in question of such
Principal Party shall have been cancelled, waived or amended, or that the
authorized securities shall be redeemed, so that the applicable provision will
have no effect in connection with, or as a consequence of, the consummation of
the proposed transaction.
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractional Rights or
to distribute Rights Certificates which evidence fractional Rights. In lieu of
such fractional Rights, the Company may at its option pay to the registered
holders of the Rights Certificates with respect to which such fractional Rights
would otherwise be issuable an amount in cash equal to the same fraction of the
current market value of a whole Right. For the purposes of this Section 14(a),
the current market value of a whole Right shall be the closing price of a Right
for the Trading Day immediately prior to the date on which such fractional
Rights otherwise would have been issuable. The closing price for any Trading Day
shall be the last sale price, regular way, on such day, or, in case no such sale
takes place on such day, the average of the closing bid and asked prices,
regular way, on such day, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed or
admitted to trading on the NYSE or, if the Rights are not listed or admitted to
trading on the NYSE, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal United
States national securities exchange on which the Rights are listed or admitted
to trading or, if the Rights are not listed or admitted to trading on any United
States national securities exchange, the last quoted sale price on such day or,
if not so quoted, the average of the high bid and low asked prices in the
over-the-counter market on such day, as reported by Nasdaq or such other system
then in use or, if on such day the Rights are not quoted by any such system, the
average of the closing bid and asked prices on such day as furnished by a
professional market maker making a market in the Rights selected by a majority
of the Board of Directors of the Company (which selection shall be final,
binding and conclusive for all purposes). If on such day no such market maker is
making a market in the Rights, the current market value of the Rights on such
day shall be determined in good faith by a majority of the Board of Directors of
the Company, whose
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determination shall be described in a statement filed with the Rights Agent and
shall be final, binding and conclusive for all purposes.
(b) The Company shall not be required to issue fractions of shares
of Preferred Stock (other than fractions which are integral multiples of one
one-hundredth of a share of Preferred Stock) upon exercise of the Rights or to
distribute certificates which evidence fractional shares of Preferred Stock
(other than fractions which are integral multiples of one one-hundredth of a
share of Preferred Stock). Fractions of shares of Preferred Stock may, at the
election of the Company, be evidenced by depositary receipts pursuant to an
appropriate agreement between the Company and a depositary selected by it,
provided that such agreement shall provide that the holders of such depositary
receipts shall have all the rights, privileges and preferences to which they are
entitled as beneficial owners of the Preferred Stock. In lieu of fractional
shares of Preferred Stock that are not integral multiples of one one-hundredth
of a share of Preferred Stock, the Company may at its option (i) issue scrip or
warrants in registered form (either represented by a certificate or
uncertificated) or in bearer form (represented by a certificate) which shall
entitle the holder to receive a full one one-hundredth of a share of Preferred
Stock upon the surrender of such scrip or warrants aggregating a full one
one-hundredth of a share of Preferred Stock, or (ii) pay to the registered
holders of Rights Certificates at the time such Rights Certificates are
exercised as provided in this Agreement an amount in cash equal to the same
fraction of the current market value of a share of Preferred Stock. For purposes
of this Section 14(b), the current market value of a share of Preferred Stock
shall be the closing price of a share of Preferred Stock (as determined pursuant
to the second sentence of the definition of "Current Market Price" in Section 1)
for the Trading Day immediately prior to the date of such exercise.
(c) The Company shall not be required to issue fractions of shares
of Common Stock or Common Stock Equivalents or to distribute certificates which
evidence fractional shares of Common Stock or Common Stock Equivalents. In lieu
of such fractional shares of Common Stock or Common Stock Equivalents, the
Company shall pay to the registered holders of the Rights Certificates with
regard to which such fractional shares of Common Stock or Common Stock
Equivalents would otherwise be issuable an amount in cash equal to the product
derived by multiplying (x) the subject fraction, by (y) Current Market Price of
the Company's Common Stock.
(d) The holder of a Right by his acceptance thereof expressly waives
any right to receive any fractional Rights or any fractional shares upon
exercise of a Right (except as otherwise provided in this Agreement).
Section 15. Rights of Action. Except as otherwise provided, all
rights of action in respect of this Agreement are vested in the respective
registered holders of the Rights Certificates (and, prior to the Distribution
Date, any registered holders of associated Common Stock); and any registered
holder of any Rights Certificate (or, prior to the Distribution Date, any share
of associated Common Stock), without the consent of the Rights Agent or of the
holder of any other Right, may, on his own behalf and for his own benefit,
enforce, and may institute and maintain any suit, action or proceeding against
the Company or any Principal Party to enforce, or otherwise act in respect of,
his rights pursuant to this Agreement. Without limiting the foregoing or any
remedies available to the holders of Rights, it is specifically acknowledged
that the
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holders of Rights would not have an adequate remedy at law for any breach of
this Agreement and will be entitled, without posting any bond, to specific
performance of the obligations under, and injunctive relief against any actual
or threatened violation of the obligations of any Person subject to, this
Agreement.
Section 16. Agreement of Rights Holders Concerning Transfer and
Ownership of Rights. Every holder of a Right by accepting the same consents and
agrees with the Company and the Rights Agent and with every other holder of a
Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of Common Stock;
(b) after the Distribution Date, the Rights Certificates will be
transferable on the registry books of the Rights Agent only if surrendered at
the principal corporate trust office of the Rights Agent, duly endorsed or
accompanied by a proper instrument of transfer;
(c) the Company and the Rights Agent may deem and treat the Person
in whose name a Rights Certificate (or, prior to the Distribution Date, the
associated Common Stock certificate) is registered as the absolute owner thereof
and of the Rights evidenced thereby (notwithstanding any notations of ownership
or writing on the Rights Certificate or the associated Common Stock certificate
made by anyone other than the Company, the transfer agent for the Common Stock
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; and
(d) notwithstanding anything in this Agreement to the contrary,
neither the Company nor the Rights Agent shall have any liability to any holder
of a Right or other Person as a result of its inability to perform any of its
obligations under this Agreement by reason of any preliminary or permanent
injunction or other order, decree or ruling issued by a court of competent
jurisdiction or by a governmental, regulatory or administrative agency or
commission, or any statute, rule, regulation or executive order promulgated or
enacted by any governmental authority, prohibiting or otherwise restraining
performance of such obligation; provided, however, the Company must use its
reasonable best efforts to have any such order, decree or ruling lifted or
otherwise overturned as soon as possible.
Section 17. Rights Holder Not Deemed a Stockholder. No holder, as
such, of any Rights Certificate shall be entitled to vote or to receive
dividends or distributions or shall be deemed for any purpose the holder of
Preferred Stock or any other securities, cash or other property which may at any
time be issuable on the exercise of the Rights represented thereby, nor shall
anything contained in this Agreement or in any Rights Certificate be construed
to confer upon the holder of any Rights Certificate, as such, any of the rights
of a stockholder of the Company, including, without limitation, any right (i) to
vote for the election of directors or upon any matter submitted to stockholders
at any meeting thereof, (ii) to give or withhold consent to any corporate
action, (iii) to receive notice of meetings or other actions affecting
stockholders (except as provided in Section 24), (iv) to receive dividends,
distributions or subscription rights, or (v) to institute, as a holder of
Preferred Stock or other securities issuable on exercise of the Rights
represented by any Rights Certificate, any derivative action on behalf of the
Company, or
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otherwise, until and only to the extent that the Right or Rights evidenced by
such Rights Certificate shall have been exercised in accordance with the
provisions of this Agreement.
Section 18. Concerning the Rights Agent. 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 gross
negligence, bad faith, willful misconduct or breach of this Agreement on the
part of the Rights Agent for anything done or omitted by the Rights Agent in
connection with the acceptance and administration of this Agreement, including
the costs and expenses of defending against any claim of liability in the
premises. This indemnification shall survive the termination of this Agreement.
The Rights Agent shall be protected and shall incur no liability for
or in respect of any action taken, suffered or omitted by it in connection with
its administration of this Agreement in reliance upon any Rights Certificate or
certificate for Preferred Stock or Common Stock or for other securities of the
Company, instrument of assignment or transfer, power of attorney, endorsement,
affidavit, letter, notice, direction, consent, certificate, statement or other
paper or document reasonably believed by it to be genuine and to be signed,
executed and, when necessary, verified or acknowledged, by the proper Person or
Persons, or otherwise upon the advice of counsel as set forth in Section 20.
Section 19. Merger or Consolidation or Change of Name of Rights
Agent. Any corporation or other entity into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be consolidated, or
any corporation or other entity resulting from any merger or consolidation to
which the Rights Agent or any successor Rights Agent shall be a party, or any
corporation or other entity succeeding to the corporate trust or stock transfer
business of the Rights Agent or any successor Rights Agent, shall be the
successor to the Rights Agent under this Agreement without the execution or
filing of any document or any further act on the part of any of the parties
hereto, provided that such corporation or other entity would be eligible for
appointment as a successor Rights Agent under Section 21. In case at the time
such successor Rights Agent shall succeed to the agency created by this
Agreement any of the Rights Certificates shall have been countersigned but not
delivered, any such successor Rights Agent may adopt the countersignature of the
predecessor Rights Agent and deliver such Rights Certificate so countersigned;
and in case at that time any of the Rights Certificates shall not have been
countersigned, any successor Rights Agent may countersign such Rights
Certificate either in the name of the predecessor Rights Agent or in the name of
the successor Rights Agent; and in all such cases such Rights Certificates shall
have the full force provided in the Rights Certificates and in this Agreement.
In case at any time the name of the Rights Agent shall be changed
and at such time any of the Rights Certificates shall have been countersigned
but not delivered, the Rights Agent may adopt the countersignature under its
prior name and deliver Rights Certificates so countersigned; and in case at that
time any of the Rights Certificates shall not have been countersigned, the
Rights Agent may countersign such Rights Certificates either in its prior name
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or in its changed name; and in all such cases such Rights Certificates shall
have the full force provided in the Rights Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent undertakes and
agrees to perform the duties and obligations imposed by this Agreement upon the
following terms and conditions, by all of which the Company and the holders of
Rights Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be
legal counsel for the Company), and the opinion of such counsel shall be full
and complete authorization and protection to the Rights Agent as to any action
taken or omitted to be taken by it in good faith and in accordance with such
opinion.
(b) Whenever in the performance of its duties under this Agreement
the Rights Agent shall deem it necessary or desirable that any fact or matter
(including, without limitation, the identity of any Acquiring Person or any
Affiliate or Associate of an Acquiring Person or the determination of Current
Market Price) be proved or established by the Company prior to taking or
suffering any action hereunder, such fact or matter (unless other evidence in
respect thereof be specifically prescribed in this Agreement) may be deemed to
be conclusively proved and established by a certificate signed by the Chairman
of the Board, the President, the Chief Executive Officer, any Vice President,
the Treasurer or the Secretary of the Company and delivered to the Rights Agent;
and such certificate shall be full authorization to the Rights Agent for any
action taken or omitted by it in good faith under this Agreement in reliance
upon such certificate.
(c) The Rights Agent shall be liable hereunder only for the gross
negligence, bad faith, willful misconduct or breach of this Agreement by it or
its attorneys or agents.
(d) The Rights Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement or in the Rights
Certificates (except its countersignature thereof) or be required to verify the
same, but all such statements and recitals are and shall be deemed to have been
made by the Company only.
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery of this
Agreement (except the due execution and delivery of this Agreement by the Rights
Agent) or in respect of the validity or execution of any Rights Certificate
(except its countersignature thereof); nor shall it be responsible for any
breach by the Company of any covenant or condition contained in this Agreement
or in any Rights Certificate; nor shall it be responsible for any change in the
transferability or exercisability of the Rights or any change or adjustment in
the terms of the Rights (including the manner, method or amount thereof)
provided for in Section 3, 11, 13 or 23 or any other provision of this Agreement
or the ascertaining of the existence of facts that would require any such change
or adjustment (except with respect to the exercise of Rights evidenced by Rights
Certificates after actual notice of any change or adjustment is required); nor
shall it by any act hereunder be deemed to make any representation or warranty
as to the authorization or reservation of any shares of Preferred Stock, Common
Stock or other securities to be issued pursuant to this Agreement or any Rights
Certificate or as to whether any shares of Preferred
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Stock, Common Stock or other securities will, when issued, be validly authorized
and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge
and deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably be
required by the Rights Agent for the carrying out or performance by the Rights
Agent of its duties and obligations under this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board, the Chief Executive Officer, the President, any Vice
President, the Secretary or the Treasurer of the Company, and to apply to such
officers for advice or instructions in connection with its duties, and it shall
not be liable for any action taken or omitted to be taken by it in good faith in
accordance with instructions of any such officer or for any delay in acting
while waiting for such instructions. When applying to any such officer for
instructions, the Rights Agent may set forth in writing (i) any proposed action
or omission of the Rights Agent with respect to its duties or obligations under
this Agreement and (ii) the date on or after which the Rights Agent proposes
such action will be taken or omitted. Such date shall not be less than three
Business Days after any such officer receives such application for instructions
from the Rights Agent. Unless the Rights Agent has received written instructions
from the Company (including any such officer) with respect to such proposed
action or omission prior to such date (or, if longer, in the case of a proposed
action to be taken, prior to the Rights Agent actually taking such action), the
Rights Agent shall not be liable for the actions or omissions set forth in such
application, provided that such action or omission does not violate any express
provision of this Agreement.
(h) The Rights Agent and any stockholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or other
securities of the Company or become pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as though the Rights Agent were not
serving as such under this Agreement. Nothing in this Agreement shall preclude
the Rights Agent from acting in any other capacity for the Company or for any
other Person.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys or agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of such attorney or
agent, provided that the Rights Agent exercised reasonable care in the selection
and continued employment of such attorney or agent.
(j) No provision of this Agreement shall require the Rights Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of its rights
hereunder if there shall be reasonable grounds for believing that repayment of
such funds or adequate indemnification against such risk or liability is not
reasonably assured to the Rights Agent.
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(k) If, with respect to any Rights Certificate surrendered to the
Rights Agent for exercise or transfer, the certificate attached to the form of
assignment or form of election to purchase, as the case may be, either has not
been completed or indicates an affirmative response to clause 1 and/or 2
thereof, the Rights Agent shall not take any further action with respect to such
requested exercise or transfer without first consulting with the Company.
Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under this
Agreement upon 30 days' notice in writing mailed to the Company and to each
transfer agent of the Common Stock or Preferred Stock by registered or certified
mail, and to the holders of the Rights Certificates by first-class mail. The
Company may remove the Rights Agent or any successor Rights Agent upon 30 days'
notice in writing, mailed to the Rights Agent or successor Rights Agent, as the
case may be, and to each transfer agent of the Common Stock or Preferred Stock
by registered or certified mail, and to the holders of the Rights Certificates
by first-class mail. If the Rights Agent shall resign or be removed or shall
otherwise become incapable of acting, the Company shall appoint a successor to
the Rights Agent. Notwithstanding any other provision of this Agreement, in no
event shall the resignation or removal of a Rights Agent be effective until a
successor Rights Agent shall have been appointed and have accepted such
appointment. If the Company shall fail 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
any holder of a Rights Certificate (who shall, with such notice, submit his
Rights Certificate for inspection by the Company), then the incumbent Rights
Agent or the registered holder of any Rights Certificate may apply to any court
of competent jurisdiction for the appointment of a new Rights Agent. Any
successor Rights Agent, whether appointed by the Company or by such a court,
shall be (i) a corporation or other entity organized and doing business under
the laws of the United States or any state of the United States so long as such
Person is authorized to conduct a corporate trust or banking business under the
laws of such state and is in good standing, which is authorized under such laws
to exercise corporate trust powers or stock transfer 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 surplus and undivided
profits aggregating of at least $100,000,000, according to its last published
statement of condition or (ii) an Affiliate of a Person described in clause (i).
After appointment, the successor Rights Agent shall be vested with the same
powers, rights, duties and responsibilities as if it had been originally named
as Rights Agent without further act or deed but the predecessor Rights Agent
shall deliver and transfer to the successor Rights Agent any property at the
time held by it hereunder and execute and deliver any further assurance,
conveyance, act or deed necessary for such purpose. Not later than the effective
date of any such appointment, the Company shall file notice thereof in writing
with the predecessor Rights Agent and each transfer agent of the Common Stock or
Preferred Stock and mail a notice thereof in writing to the registered holders
of the Rights Certificates. Neither the failure to give any notice provided for
in this Section 21, however, nor any defect therein, shall affect the legality
or validity of the resignation or removal of the Rights Agent or the appointment
of the successor Rights Agent, as the case may be.
Section 22. Issuance of New Rights Certificates. Notwithstanding any
of the provisions of this Agreement or of the Rights Certificates to the
contrary, the Company may, at its option, issue new Rights Certificates
evidencing new Rights in such form as may be approved
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by a majority of the Board of Directors of the Company to reflect any adjustment
or change in the Purchase Price per share and the number or kind or class of
securities, cash or other property purchasable under the Rights Certificates
made in accordance with the provisions of this Agreement. In addition, in
connection with the issuance or sale of Common Stock following the Distribution
Date and prior to the Redemption Date, the Company may with respect to Common
Stock so issued or sold pursuant to (i) the exercise of stock options, (ii)
under any employee plan or arrangement, (iii) upon the exercise, conversion or
exchange of securities notes or debentures issued by the Company or (iv) a
contractual obligation of the Company, in each case existing prior to the
Distribution Date, issue Rights Certificates representing the appropriate number
of Rights in connection with such issuance or sale.
Section 23. Redemption
(a) The Board of Directors of the Company may, at its option, at any
time prior to the earlier of (i) the Stock Acquisition Date and (ii) the
Expiration Date, redeem all but not less than all of the then-outstanding Rights
at a redemption price of $.01 per Right (the "Redemption Price") appropriately
adjusted to reflect any stock split, stock dividend or similar transaction
occurring after the date of this Agreement. The Company may, at its option, pay
the Redemption Price in cash, shares (including fractional shares) of Common
Stock (based on the Current Market Price of the Common Stock at the time of
redemption) or any other form of consideration deemed appropriate by the Board
of Directors.
(b) At the time and date of effectiveness set forth in any
resolution of the Board of Directors of the Company ordering the redemption of
the Rights (the "Redemption Date"), without any further action and without any
further notice, the right to exercise the Rights will terminate and the only
right thereafter of the holders of Rights shall be to receive the Redemption
Price; provided, however, that such resolution of the Board of Directors of the
Company may be revoked, rescinded or otherwise modified at any time prior to the
time and date of effectiveness set forth in such resolution, in which event the
right to exercise will not terminate at the time and date originally set for
such termination by the Board of Directors of the Company. As soon as
practicable after the action of the Board of Directors of the Company ordering
the redemption of the Rights, the Company shall give notice of such redemption
to the Rights Agent and to the holders of the then-outstanding Rights by mailing
such notice to all such holders at their last addresses as they appear upon the
registry books of the Rights Agent or, prior to the issuance of Rights
Certificates, on the registry books of the transfer agent for the Common Stock.
Any notice which is mailed in the manner provided in this Agreement shall be
deemed given, whether or not the holder receives the notice. Each such notice of
redemption will state the method by which the payment of the Redemption Price
will be made. In any case, failure to give such notice by mail, or any defect in
the notice, to any particular holder of Rights shall not affect the sufficiency
of the notice to other holders of Rights. In the case of a redemption permitted
under this Section 23, the Company may, at its option, discharge all of its
obligations with respect to the Rights by (i) issuing a press release announcing
the manner of redemption of the Rights and (ii) mailing payment of the
Redemption Price to the registered holders of the Rights at their last addresses
as they appear on the registry books of the Rights Agent or, prior to the
issuance of the Rights Certificates, on the registry books of the transfer agent
for the Common Stock, and upon such action, all outstanding Rights Certificates
shall be null and void without any further action by the Company. Neither the
Company nor any of its Affiliates or
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Associates may redeem, acquire or purchase for value any Rights at any time in
any manner other than as specifically set forth in this Section 23 and other
than in connection with the purchase of shares of Common Stock prior to the
earlier of the Distribution Date and the Expiration Date.
Section 24. Notice of Certain Events. In case the Company, on or
after the Distribution Date, shall propose to (a) pay any dividend payable in
stock of any class to the holders of its Preferred Stock or to make any other
distribution to the holders of its Preferred Stock (other than a regular
periodic regular cash dividend at an annual rate not in excess of: (x) 125% of
the annual rate of the cash dividend paid on the Preferred Stock during the
immediately preceding fiscal year, or if the Preferred Stock was not outstanding
during such preceding fiscal year, then 125% of the annual rate of the regular
cash dividend paid on the Common Stock during such year, or (y) in the event
that a regular cash dividend was not paid on the Preferred Stock (or Common
Stock) during such preceding fiscal year, 5% of the Current Market Value of the
Preferred Stock on the date such regular cash dividend was first declared); or
(b) offer to the holders of its Preferred Stock rights, options or warrants to
subscribe for or to purchase any additional shares of Preferred Stock or shares
of stock of any class or any other securities, rights or options; or (c) effect
any reclassification of the Preferred Stock (other than a reclassification
involving only the subdivision of outstanding shares of Preferred Stock, a
change in the par value of such Preferred Stock or a change from par value to no
par value); or (d) directly or indirectly effect any consolidation or merger
into or with, or effect any sale, lease, exchange or other transfer or
disposition (or to permit one or more of its Subsidiaries to effect any sale,
lease, exchange or other transfer or disposition), in one transaction or a
series of related transactions, of more than 50% of the property, assets or
earning power of the Company and its Subsidiaries (taken as a whole) to, any
other Person; or (e) effect the liquidation, dissolution or winding up of the
Company, then, in each such case, the Company shall give to each holder of a
Right, in accordance with Section 25, a notice of such proposed action, which
shall specify any record date for the purposes of such stock dividend,
distribution or rights, or the date on which such reclassification,
consolidation, merger, sale, lease, exchange, transfer, disposition,
liquidation, dissolution, or winding up is to take place and if such holders
will or may participate therein, the date of participation therein by the
holders of Common Stock and/or Preferred Stock, if any such date is to be fixed,
and such notice shall be so given in the case of any action covered by clause
(a) or (b) above at least 20 days prior to the record date for determining
holders of the Preferred Stock for purposes of such action, and in the case of
any such other action, at least 20 days prior to the date of the taking of such
proposed action or the date of participation therein, if any, by the holders of
Preferred Stock, whichever shall be the earlier.
In case any Triggering Event or Business Combination shall occur,
then, in any such case, the Company shall as soon as practicable thereafter give
to each holder of a Rights Certificate, in accordance with Section 25, notice of
the occurrence of such Triggering Event or Business Combination, which shall
specify the Triggering Event or Business Combination and include a description
of the consequences of such event to holders of Rights under Section 11(a)(ii)
or 13.
The failure to give notice as required by this Section 24 or any
defect therein shall not affect the legality or validity of the action taken by
the Company or the vote upon any such action.
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Section 25. Notices. Notices or demands authorized by this Agreement
to be given or made by the Rights Agent or by the holder of any Rights
Certificate to or on the Company shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another address (or another
person's attention) is filed in writing with the Rights Agent) as follows:
ATMI, Inc.
7 Commerce Drive
Danbury, Connecticut 06810
Attention: General Counsel
Subject to the provisions of Section 21, any notice or demand authorized by this
Agreement to be given or made by the Company or by the holder of any Rights
Certificate to or on the Rights Agent shall be sufficiently given or made if
sent by first-class mail, postage prepaid, addressed (until another address (or
another person's attention) is filed in writing with the Company) as follows:
Fleet National Bank
c/o EquiServe Limited Partnership
150 Royall Street
Canton, MA 02021
Attention: Client Administration
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 Certificate shall
be sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the registry
books of the Company (or, if no Rights Certificates have been issued, if sent by
first-class mail, postage prepaid, addressed to the holder of a certificate
representing shares of Common Stock at the address of such holder as shown on
the Company's Common Stock registry books).
Section 26. Amendments and Supplements. This Agreement may not
be amended or supplemented except as permitted in Section 26(a) or 26(b) or
as contemplated by Section 11(a)(iii).
(a) At any time prior to the Stock Acquisition Date, a majority of
the Board of Directors of the Company may, and the Rights Agent shall, if so
directed, amend or supplement any provision of this Agreement without the
approval of any holders of Rights.
(b) From and after the Stock Acquisition Date, a majority of the
Board of Directors of the Company may, and the Rights Agent shall, if so
directed, amend or supplement this Agreement without the approval of any holders
of Rights Certificates (i) to cure any ambiguity, (ii) to correct or supplement
any provision contained in this Agreement which may be defective or inconsistent
with any other provision of this Agreement, or (iii) to change or supplement the
provisions hereunder in any manner which the Company may deem necessary or
desirable and which shall not adversely affect the interests of the holders of
Rights Certificates (other than an Acquiring Person or an Affiliate or Associate
of an Acquiring Person).
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(c) Immediately upon the action of a majority of the Board of
Directors providing for any amendment or supplement pursuant to this Section 26,
and without any further action and without notice, such amendment or supplement
shall be deemed effective. Promptly following the adoption of any amendment or
supplement pursuant to this Section 26, the Company shall deliver to the Rights
Agent a copy, certified by the Secretary or any Assistant Secretary of the
Company, of resolutions of a majority of the Board of Directors of the Company
adopting such amendment or supplement. Upon such delivery, the amendment or
supplement shall be administered by the Rights Agent as part of this Agreement
in accordance with the terms of this Agreement, as so amended or supplemented.
Section 27. Successors. All the covenants and provisions of
this Agreement by or for the benefit of the Company or the Rights Agent shall
bind and inure to the benefit of their respective successors and assigns
hereunder.
Section 28. Benefits of this Agreement; Determinations and Actions
by the Board of Directors. Nothing in this Agreement shall be construed to give
to any Person other than the Company, the Rights Agent and the registered
holders of Rights any legal or equitable right, remedy or claim under this
Agreement; and this Agreement shall be for the sole and exclusive benefit of the
Company, the Rights Agent and the registered holders of the Rights.
The Board of Directors of the Company shall have the exclusive power
and authority to administer this Agreement and to exercise all rights and powers
specifically granted to the Board of Directors of the Company or the Company, or
as may be necessary or advisable in the administration of this Agreement,
including, without limitation, the right and power to (i) interpret the
provisions of this Agreement, and (ii) make all determinations deemed necessary
or advisable for the administration of this Agreement (including a determination
to redeem or not redeem the Rights, to exchange or not exchange the Rights for
Common Stock or other securities of the Company, or to amend or supplement this
Agreement). All such actions, calculations, interpretations and determinations
(including, for purposes of clause (y) below, all omissions with respect to the
foregoing) which are done or made by the Board of Directors of the Company in
good faith, shall (x) be final, conclusive and binding on the Company, the
Rights Agent, the holders of the Rights and all other Persons, and (y) not
subject the Board of Directors of the Company to any liability to the holders of
the Rights.
Section 29. Severability.
(a) If any term, provision, covenant or restriction of this
Agreement or the application thereof to any Person or to any circumstance is
held by a court of competent jurisdiction or other authority to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
(b) If legal counsel to the Company delivers to the Company a
written opinion to the effect that, as a result of changes in federal law or
Delaware law, any term, provision, covenant or restriction of this Agreement may
be invalid, void or unenforceable, then, notwithstanding any other provision of
this Agreement to the contrary, the Company and the
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Rights Agent may amend this Agreement to modify, revise or delete such term,
provision, covenant or restriction to the extent necessary to comply with such
law as so changed.
Section 30. Governing Law. This Agreement and each Rights
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of Delaware and for all purposes shall be governed by and
construed in accordance with the internal laws of such State applicable to
contracts to be made and performed entirely within such State.
Section 31. Counterparts. This Agreement may be executed in
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and both such counterparts shall together constitute but one and
the same instrument.
Section 32. Descriptive Headings. Descriptive headings of the
several Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions of this Agreement.
Section 33. Grammatical Construction. Throughout this Agreement,
where such meanings would be appropriate, (a) any pronouns used herein shall
include the corresponding masculine, feminine or neuter forms (e.g., references
to "he" shall also include "she" and "it" and references to "who" and "whom"
shall also include "which"), (b) the plural form of nouns and pronouns shall
include the singular and vice-versa, (c) reference to a Section means a Section
of this Agreement, and (d) the word "including" means "including, without
limitation," whether expressly stated or not.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
ATMI, INC.
Attest:
By:
-------------------------- ---------------------------------------
Secretary Name: Daniel P. Sharkey
Title: Vice President, Chief Financial
[Corporate Seal] Officer and Treasurer
FLEET NATIONAL BANK
Attest:
By:
-------------------------------- --------------------------------
Name: Name:
Title: Title:
[Corporate Seal]
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Exhibit A
Form of Certificate of Designation
Certificate of Designation
of
ATMI, Inc.
Pursuant to Section 151 of the General Corporation Law of the State of
Delaware
We, Daniel P. Sharkey, Vice President, Chief Financial Officer and
Treasurer, and Ward Stevens, Secretary, of ATMI, Inc., a corporation organized
and existing under the General Corporation Law of the State of Delaware (the
"Corporation"), in accordance with the provisions of Section 103 thereof, DO
HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors by
the Certificate of Incorporation of the Corporation, the Board of Directors on
October 13, 2000, adopted the following resolution creating a series of 350,000
shares of Preferred Stock designated as Series A Junior Participating Preferred
Stock:
RESOLVED, that, pursuant to the authority vested in the Board of Directors
of the Corporation in accordance with the provisions of its Certificate of
Incorporation, a series of Preferred Stock of the Corporation be and it hereby
is created, and that the preferences and relative, participating, optional or
other rights and the qualifications, limitations or restrictions thereof are as
follows:
SECTION 1. Designation and Amount. The designation of the series of
Preferred Stock created by this resolution shall be "Series A Junior
Participating Preferred Stock" and the number of shares constituting such series
shall be 350,000.
SECTION 2. Dividends and Distributions.
(A) Out of the surplus or net profits of the Corporation legally
available for the payment of dividends, the holders of shares of Series A Junior
Participating Preferred Stock shall be entitled to receive, when and as such
dividends may be declared by the Board of Directors, quarterly dividends payable
in cash on the tenth days of March, June, September and December in each year
(each such date being referred to herein as a "Quarterly Dividend Payment
Date"), commencing on the first Quarterly Dividend Payment Date after the first
issuance of a share or fraction of a share of Series A Junior Participating
Preferred Stock, in an amount per share (rounded to the nearest cent) equal to
the greater of (a) $1.00 or (b) subject to the provision for adjustment
hereinafter set forth, 100 times the aggregate per share amount of all cash
dividends, and 100 times the aggregate per share amount (payable in kind) of all
non-cash dividends or other distributions other than a dividend payable in
shares of Common Stock or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on the Common Stock, par
value $.01 per share, of the Corporation (the "Common Stock") since the
immediately preceding Quarterly Dividend Payment Date, or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series A Junior Participating Preferred Stock. In the
event the Corporation shall at any time after
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November 9, 2000 (the "Rights Declaration Date") (i) pay any dividend on Common
Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common
Stock, (iii) combine the outstanding Common Stock into a smaller number of
shares or (iv) issue any shares by reclassification of its shares of Common
Stock, then in each such case the amount to which holders of shares of Series A
Junior Participating Preferred Stock shall have been entitled immediately prior
to such event under clause (b) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of which shall be the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which shall be the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Junior Participating Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares of Series
A Junior Participating Preferred Stock, unless the date of issue of such shares
shall be prior to the record date for the first Quarterly Dividend Payment Date,
in which case dividends on such shares shall begin to accrue from the date on
which shares of Series A Junior Participating Preferred Stock are first issued,
or unless the date of issue shall be a Quarterly Dividend Payment Date or shall
be a date after the record date for the next Quarterly Dividend Payment Date and
before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. No interest, or sum of money in lieu of interest, shall be payable
in respect of any dividend payment or payments which may be in arrears.
(C) Dividends payable upon the share of Series A Junior
Participating Preferred Stock shall be cumulative (whether or not in any
dividend period or periods there shall be surplus or net profits of the
Corporation legally available for the payment of such dividends) so that, if on
any Quarterly Dividend Payment Date dividends upon the outstanding shares of
Series A Junior Participating Preferred Stock shall not have been paid, or
declared and a sum sufficient for the payment thereof set apart for such
payment, the amount of the deficiency shall be fully paid, but without interest,
or dividends in such amount declared on the shares of Series A Junior
Participating Preferred Stock and a sum sufficient for the payment thereof set
apart for such payment, before any dividend shall be declared or paid upon or
set apart for, or any other distribution shall be made in respect of, or any
payment shall be made in respect of, or any payment shall be made on account of
the purchase of, the Common Stock or any series of Preferred Stock subordinate
to the Series A Junior Participating Preferred Stock.
SECTION 3. Distributions to Holders of Series A Junior Participating
Preferred Stock and Common Stock. Out of any surplus or net profits of the
Corporation legally available for dividends remaining after full cumulative
dividends upon any series of Preferred Stock ranking senior to Series A Junior
Participating Preferred Stock shall have been paid for all past dividend
periods, and after or concurrently with making payment of, or declaring and
setting apart for payment, full dividends on any series of Preferred Stock
ranking senior to the Series A Junior Participating Preferred Stock then
outstanding to the most recent Quarterly Dividend Payment Date and after the
Corporation shall have complied with the provisions in respect of any and all
amounts then or theretofore required to be set aside in respect of any sinking
fund or purchase fund with respect to any series of Preferred Stock ranking
senior to Series A Junior Participating Preferred Stock then outstanding and
entitled to the benefit of a sinking fund or purchase fund, and after the
Corporation shall have made provision for compliance in respect of the current
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sinking fund or purchase period for any series of Preferred Stock ranking senior
to Series A Junior Participating Preferred Stock, then and not otherwise the
holders of Series A Junior Participating Preferred Stock shall be entitled to or
may receive dividends and redemption payments as provided herein. Out of any
surplus or net profits of the Corporation legally available for dividends
remaining after full cumulative dividends upon the shares of Series A Junior
Participating Preferred Stock then outstanding shall have been paid through the
preceding Quarterly Dividend Payment Date, and after the Corporation shall have
complied with the provisions in respect of any and all amounts then or
theretofore required (if any) to be set aside or applied in respect of any
redemption payments in respect of shares of Series A Junior Participating
Preferred Stock, then and not otherwise, the holders of Common Stock and of any
series of Preferred Stock ranking subordinate to Series A Junior Participating
Preferred Stock shall, subject to the rights of any other series of Preferred
Stock then outstanding, to paragraph (A) of Section 2 hereof and to the
provisions of the Certificate of Incorporation, be entitled to receive such
dividends as may from time to time be declared by the Board of Directors.
SECTION 4. Voting.
(A) Holders of shares of Series A Junior Participating Preferred
Stock shall be entitled to 100 votes for each share of stock held. In the event
the Corporation shall at any time after the Rights Declaration Date (i) pay any
dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, (iii) combine the outstanding Common Stock into a
smaller number of shares or (iv) issue any shares by reclassification of its
shares of Common Stock, then in each such case the number of votes per share to
which holders of shares of Series A Junior Participating Preferred Stock were
entitled immediately prior to such event shall be adjusted by multiplying such
number of votes by a fraction the numerator of which shall be the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which shall be the number of shares of Common Stock that were
outstanding immediately prior to such event. Except as provided in this Section
4 and except as may be required by applicable law, holders of shares of Series A
Junior Participating Preferred Stock shall vote with the Common Stock on all
matters required to be submitted to holders of Common Stock and shall not be
entitled to vote as a separate class with respect to any matter.
(B) So long as any shares of Series A Junior Participating Preferred
Stock shall be outstanding, the Corporation shall not, without the affirmative
vote or written consent of the holders of a majority of the aggregate number of
shares of Series A Junior Participating Preferred Stock at the time outstanding
(or such greater percentage as may be required under applicable law), acting as
a single class, alter or change the powers, preferences or rights given to the
Series A Junior Participating Preferred Stock by the Certificate of
Incorporation so as to affect such powers, preferences or rights adversely.
(C) If at the time of any annual meeting of stockholders of the
Corporation for the election of directors a default in preference dividends, as
the term "default in preference dividends" is hereinafter defined with respect
to the Series A Junior Participating Preferred Stock, shall exist, the holders
of the Series A Junior Participating Preferred Stock, voting separately as a
class with the holders of any other series of Preferred Stock so entitled to
vote, shall have the right to elect two members of the Board of Directors; and
the holders of the Common Stock shall not be entitled to vote in the election of
the directors of the Corporation to
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be elected as provided in the foregoing clause. Whenever a default in preference
dividends shall commence to exist, the Corporation, upon the written request of
the holders of 5% or more of the outstanding shares of Preferred Stock so
entitled to vote, shall call a special meeting of the holders of the Preferred
Stock so entitled to vote, such special meeting to be held within 120 days after
the date on which such request shall be received by the Corporation, for the
purpose of enabling such holders to elect members of the Board of Directors as
provided in the immediately preceding sentence; provided, however, that such
special meeting need not be called if an annual meeting of stockholders of the
Corporation for the election of directors shall be scheduled to be held within
such 120 days; and provided further that in lieu of any such special meeting,
the election of the directors to be elected thereat may be effected by the
written consent of the holders of a majority of the outstanding shares that
would be entitled to be voted upon at such special meeting. Prior to any such
special meeting or meetings, the number of directors of the Corporation shall be
increased to the extent necessary to provide as additional places on the Board
of Directors the directorships to be filled by the directors to be elected
thereat. Any director elected as aforesaid by the holders of shares of Preferred
Stock or of any series thereof shall cease to serve as such director whenever a
default in preference dividends shall cease to exist. If, prior to the end of
the term of any director elected as aforesaid by the holders of shares of the
Preferred Stock or of any series thereof, or elected by the holders of Common
Stock, a vacancy in the office of such director shall occur by reason of death,
resignation, removal or disability, or for any other cause, such vacancy shall
be filled for the unexpired term in the manner provided in the Bylaws; provided,
however, that if such vacancy shall be filled by election by the stockholders at
a meeting thereof, the right to fill such vacancy shall be vested in the holders
of that class of stock or series thereof which elected the director the vacancy
in the office of whom is so to be filled, unless, in any such case, no default
in preference dividends shall exist at the time of such election. For the
purposes of this paragraph (C), a "default in preference dividends" with respect
to the Series A Junior Participating Preferred Stock shall be deemed to have
occurred whenever the amount of dividends in arrears upon the Series A Junior
Participating Preferred Stock shall be equivalent to six full quarterly
dividends or more, and, having so occurred, such default in preference dividends
shall be deemed to exist thereafter until, but only until, all dividends in
arrears on all shares of the Series A Junior Participating Preferred Stock then
outstanding shall have been paid. The term "dividends in arrears" whenever used
in this paragraph (C) with reference to the Series A Junior Participating
Preferred Stock shall be deemed to mean (whether or not in any dividend period
in respect of which such term is used there shall have been surplus or net
profits of the Corporation legally available for the payment of dividends) that
amount which shall be equal to cumulative dividends at the rate for the Series A
Junior Participating Preferred Stock for all past quarterly dividend periods
less the amount of all dividends paid, or deemed paid, for all such periods upon
such Series A Junior Participating Preferred Stock. Nothing herein contained
shall be deemed to prevent an increase in the number of directors of the
Corporation pursuant to its Bylaws as from time to time in effect so as to
provide as additional places on the Board of Directors directorships to be
filled by the directors so to be elected by the holders of the Series A Junior
Participating Preferred Stock, or to prevent any other change in the number of
the directors of the Corporation.
(D) Except as set forth herein or as otherwise required by law,
holders of Series A Junior Participating Preferred Stock shall have no special
voting rights and their consent shall not be required (except to the extent they
are entitled to vote with holders of Common Stock as set forth herein) for
taking any corporate action.
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SECTION 5. Reacquired Shares. Any shares of Series A Junior Participating
Preferred Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their cancellation become authorized but
unissued shares of Preferred Stock and may be reissued as part of a new series
of Preferred Stock to be created by resolution or resolutions of the Board of
Directors.
SECTION 6. Liquidation Rights.
(A) Upon any liquidation (voluntary of otherwise), dissolution or
winding up of the Corporation ("Liquidation"), the holders of shares of Series A
Junior Participating Preferred Stock shall be entitled to receive out of the
assets of the Corporation available for distribution to its stockholders, before
any payment or distribution shall be made on the shares of any series of
Preferred Stock subordinate to Series A Junior Participating Preferred Stock as
to assets in the event of any Liquidation ("Junior Shares") or on the Common
Stock, the amount of $100.00 per share, plus a sum equal to all dividends
(whether or not earned or declared) on such shares accrued and unpaid thereon
through the date of final distribution (the "Series A Liquidation Preference").
(B) The shares of Series A Junior Participating Preferred Stock
shall be subordinate to any other series of Preferred Stock unless the
provisions of such other series provide otherwise, and shall be preferred over
the Common Stock, as to assets in the event of any Liquidation. In the event of
any Liquidation, the holders of the shares of Series A Junior Participating
Preferred Stock shall be entitled to receive, out of the assets of the
Corporation available for distribution to its stockholders (after payment in
full of all amounts payable in respect of any series of Preferred Stock ranking
senior to Series A Junior Participating Preferred Stock), an amount determined
as provided in paragraph (A) of this Section 6 for every share of Series A
Junior Participating Preferred Stock before any distribution of assets shall be
made to the holders of any Junior Shares or to the holders of the Common Stock.
If, in the event of any Liquidation, the holders of the Series A Junior
Participating Preferred Stock shall have received all the amounts to which they
shall be entitled in accordance with the terms of paragraph (A) of this Section
6, no additional distributions shall be made to the holders of shares of Series
A Junior Participating Preferred Stock unless, prior thereto, the holders of
shares of Common Stock shall have received an amount per share (the "Common
Adjustment") equal to the quotient obtained by dividing (i) the Series A
Liquidation Preference by (ii) 100 (as appropriately adjusted as set forth in
paragraph (C) of this Section 6 to reflect such events as stock splits, stock
dividends and recapitalizations with respect to the Common Stock) (such number
in clause (ii) being referred to herein as the "Adjustment Number"). Following
the payment of the full amount of the Common Adjustment in respect of all
outstanding shares of Common Stock, holders of Series A Junior Participating
Preferred Stock and holders of shares of Common Stock shall receive their
ratable and proportionate share of the remaining assets to be distributed to the
holders of Series A Junior Participating Preferred Stock and Common Stock in the
ratio of the Adjustment Number to 1 with respect to such Preferred Stock and
Common Stock, on a per share basis, respectively. If, upon any Liquidation, the
amounts payable on or with respect to Series A Junior Participating Preferred
Stock and any series of Preferred Stock ranking on a parity with Series A Junior
Participating Preferred Stock are not paid in full, the holders of shares of
such Preferred Stock shall share ratably in any distribution of assets according
to the respective
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amounts which would be payable in respect of the shares held by them upon such
distribution if all amounts payable on or with respect to such Preferred Stock
were paid in full.
(C) In the event the Corporation shall at any time after the Rights
Declaration Date (i) pay any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, (iii) combine the
outstanding Common Stock into a smaller number of shares or (iv) issue any
shares by reclassification of its shares of Common Stock, then in each such case
the Adjustment Number in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment Number by a fraction the numerator of
which shall be the number of shares of Common Stock outstanding immediately
after such event and the denominator of which shall be the number of shares of
Common Stock that were outstanding immediately prior to such event.
(D) Neither the sale, lease or exchange (for cash, shares of stock,
securities or other consideration) of all or substantially all the property and
assets of the Corporation nor the merger or consolidation of the Corporation
into or with any other corporation or other entity or the merger or
consolidation of any other corporation or other entity into or with the
Corporation shall be deemed to be a Liquidation for the purposes of this Section
6.
SECTION 7. Consolidation, Merger, etc. In case the Corporation shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock shall be exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares of
Series A Junior Participating Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share (subject to the provision
for adjustment hereinafter set forth) equal to 100 times the aggregate amount of
stock, securities, cash and/or any other property (payable in kind), as the case
may be, into which or for which each share of Common Stock is changed or
exchanged. In the event the Corporation shall at any time after the Rights
Declaration Date (i) pay any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, (iii) combine the
outstanding Common Stock into a smaller number of shares or (iv) issue any
shares by reclassification of its shares of Common Stock, then in each such case
the amount set forth in the preceding sentence with respect to the exchange or
change of shares of Series A Junior Participating Preferred Stock shall be
adjusted by multiplying such amount by a fraction the numerator of which shall
be the number of shares of Common Stock outstanding immediately after such event
and the denominator of which shall be the number of shares of Common Stock that
were outstanding immediately prior to such event.
SECTION 8. Optional Redemption.
(A) The Corporation shall have the option to redeem the whole or any
part of the Series A Junior Participating Preferred Stock at any time at a
redemption price equal to, subject to the provision for adjustment hereinafter
set forth, 100 times the "current per share market price" of the Common Stock on
the date of the mailing of the notice of redemption, together with unpaid
accumulated dividends to the date of such redemption. In the event the
Corporation shall at any time after the Rights Declaration Date (i) pay any
dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, (iii) combine the outstanding Common Stock into a
smaller number of shares or (iv) issue any shares by
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reclassification of its shares of Common Stock, then in each such case the
amount to which holders of shares of Series A Junior Participating Preferred
Stock shall be otherwise entitled immediately prior to such event under the
immediately preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which shall be the number of shares of Common Stock
outstanding immediately after such event and the denominator of which shall be
the number of shares of Common Stock that were outstanding immediately prior to
such event. The "current per share market price" on any date shall be deemed to
be the average of the closing prices per share of such Common Stock for the 10
consecutive Trading Days (as such term in hereinafter defined) immediately prior
to such date. The closing price for each Trading Day shall be the last sale
price, regular way, on such day or, in case no such sale takes place on such
day, the average of the closing bid and asked prices, regular way, on such day
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 ("NYSE") or, if the Common Stock is not listed or admitted to
trading on the NYSE, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal United
States national securities exchange on which the Common Stock is listed or
admitted to trading or, if the Common Stock is not listed or admitted to trading
on any United States national securities exchange, the last quoted sale price on
such day or, if not so quoted the average of the high bid and low asked prices
in the over-the-counter market on such day, as reported by the National
Association of Securities Dealers, Inc. Automated Quotation System ("Nasdaq") or
such other system then in use or, if on any such day the Common Stock is not
quoted by any such system, the average of the closing bid and asked prices on
such day as furnished by a professional market maker making a market in the
Common Stock selected by the Board of Directors of the Corporation (which
selection shall be final, binding and conclusive for all purposes) or, if on
such day no such market maker is be making a market in the Common Stock, the
fair market value of the Common Stock on such date as determined in good faith
by the Board of Directors of the Corporation (which determination shall be
final, binding and conclusive for all purposes). The term "Trading Day" shall
mean a day on which the principal United States national securities exchange on
which the Common Stock is be listed or admitted to trading is open for the
transaction of business or, if the Common Stock is not listed or admitted to
trading on any United States national securities exchange, but are traded in the
over-the-counter market and reported by Nasdaq, then any day for which Nasdaq
reports the high bid and low asked prices in the over-the-counter market, or if
the Common Stock is not traded in the over-the counter market and reported by
Nasdaq, then any day other than a Saturday, Sunday or a day on which banking
institutions in the State of New York are authorized or obligated by law or
executive order to close..
(B) Notice of any such redemption shall be given by mailing to the
holders of the Series A Junior Participating Preferred Stock a notice of such
redemption, first class postage prepaid, not later than the thirtieth day and
not earlier than the sixtieth day before the date fixed for redemption, at their
last address as the same shall appear upon the books of Corporation. Any notice
which shall be mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the stockholder shall have
received such notice, and failure duly to give such notice by mail, or any
defect in such notice, to any holder of Series A Junior Participating Preferred
Stock shall not affect the validity of the proceedings for the redemption of
such Series A Junior Participating Preferred Stock.
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(C) If less than all the outstanding shares of the Series A Junior
Participating Preferred Stock are to be redeemed by the Corporation, the number
of shares to be redeemed shall be determined by the Board of Directors and the
shares to be redeemed shall be determined by lot or pro rata or in such fair and
equitable other manner as may be prescribed by resolution of the Board of
Directors.
(D) The notice of redemption to each holder of Series A Junior
Participating Preferred Stock shall specify (a) the number of shares of Series A
Junior Participating Preferred Stock of such holder to be redeemed, (b) the date
fixed for redemption, (c) the redemption price and (d) the place of payment of
the redemption price.
(E) If any such notice of redemption shall have been duly given or
if the Corporation shall have given to the bank or trust company hereinafter
referred to irrevocable written authorization promptly to give or complete such
notice, and if on or before the redemption date specified therein the funds
necessary for such redemption shall have been deposited by the Corporation with
the bank or trust company designated in such notice, doing business in the
United States of America and having a capital, surplus and undivided profits
aggregating at least $100,000,000 according to its last published statement of
condition, in trust for the benefit of the holders of Series A Junior
Participating Preferred Stock called for redemption, then, notwithstanding that
any certificate for such shares so called for redemption shall not have been
surrendered for cancellation, from and after the time of such deposit all such
shares called for redemption shall no longer be deemed outstanding, all rights
with respect to such shares shall no longer be deemed outstanding and all rights
with respect to such shares shall forthwith cease and terminate, except the
right of the holders thereof to receive from such bank or trust company at any
time after the time of such deposit the funds so deposited, without interest. In
case less than all the shares represented by any surrendered certificate shall
be redeemed, a new certificate shall be issued representing the unredeemed
shares. Any interest accrued on such funds so deposited shall be paid to the
Corporation from time to time. Any funds so deposited and unclaimed at the end
of six years from such redemption date shall be repaid to the Corporation, after
which the holders of shares of Series A Junior Participating Preferred Stock
called for redemption shall look only to the Corporation for payment thereof;
provided, however, that any funds so deposited which shall not be required for
redemption because of the exercise of any privilege of conversion or exchange
subsequent to the date of deposit shall be repaid to the Corporation forthwith.
SECTION 9. Ranking. The Series A Junior Participating Preferred Stock
shall rank junior to all other series of Preferred Stock as to the payment of
dividends and the distribution of assets, unless the terms of any such series
shall provide otherwise.
SECTION 10. Fractional Shares. Series A Junior Participating Preferred
Stock may be issued in fractions of a share which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the benefit of all
other rights of holders of Series A Junior Participating Preferred Stock.
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IN WITNESS WHEREOF, we have executed and subscribed this Certificate and do
affirm the foregoing as true under the penalties of perjury this 13th day of
October, 2000.
_______________________________
Daniel P. Sharkey
Vice President, Chief
Financial Officer and
Treasurer
Attest:
_________________________________
Ward Stevens
Secretary
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Exhibit B
Form of Rights Certificate
Certificate No. R- ________ Rights
NOT EXERCISABLE AFTER OCTOBER 12, 2010 OR EARLIER IF NOTICE OF REDEMPTION OR
EXCHANGE IS GIVEN. THE RIGHTS ARE SUBJECT TO REDEMPTION OR EXCHANGE, AT THE
OPTION OF THE COMPANY, ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. [THE
RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY
A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN ASSOCIATE OR AFFILIATE OF
AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT).
ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY
BECOME NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE
RIGHTS AGREEMENT.]
Rights Certificate
ATMI, INC.
This certifies that _________________________, or registered
assigns, is the registered owner of the number of Rights set forth above, each
of which entitles the owner thereof, subject to the terms, provisions and
conditions of the Rights Agreement dated as of October 13, 2000 (as amended, the
"Rights Agreement") between ATMI, Inc., a Delaware corporation (the "Company"),
and Fleet National Bank (the "Rights Agent"), unless notice of redemption shall
have been previously given by the Company, to purchase from the Company at any
time after the Distribution Date (as such term is defined in the Rights
Agreement) and prior to 5:00 P.M., New York, New York time on October 12, 2010,
at the principal corporate trust office of the Rights Agent, or at the office of
its successor as Rights Agent, one one-hundredth of a fully paid and
nonassessable share of the Junior Participating Preferred Stock, par value $.01
per share, of the Company (the "Preferred Stock"), at a purchase price (the
"Purchase Price") of $175.00 per one one-hundredth share, upon presentation and
surrender of this Rights Certificate with the Form of Election to Purchase duly
executed. The Purchase Price may be paid in cash or by certified bank check or
bank draft payable to the order of the Company.
As provided in the Rights Agreement, the Purchase Price and the
number of shares of Preferred Stock or other securities, cash or other property
which may be purchased upon the exercise of the Rights evidenced by this Rights
Certificate are subject to modification and adjustment upon the occurrence of
certain events.
If the Rights evidenced by this Rights Certificate are or were
formerly beneficially owned, on or after the earlier of the Distribution Date
and the Stock Acquisition Date, by (i) an Acquiring Person or any Associate or
Affiliate of an Acquiring Person, or (ii) a direct or indirect transferee of an
Acquiring Person (or of any Associate or Affiliate of an
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Acquiring Person), such Rights may become null and void, in which event the
holder of any such Right (including any subsequent holder) shall not have any
rights with respect to such Right.
This Rights Certificate is subject to all of the terms, provisions
and conditions of the Rights Agreement, which terms, provisions and conditions
are hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Rights Certificates.
Capitalized terms used but not defined in this Rights Certificate that are
defined in the Rights Agreement shall have the same meanings ascribed to them in
the Rights Agreement. Copies of the Rights Agreement are on file at the
principal executive offices of the Company and the above-mentioned office of the
Rights Agent.
This Rights Certificate, with or without other Rights Certificates,
upon surrender at the principal corporate trust office of the Rights Agent, may
be exchanged for another Rights Certificate or Rights Certificates of like tenor
and date evidencing Rights entitling the holder to purchase a like aggregate
number of shares of Preferred Stock or other property as the Rights evidenced by
the Rights Certificate or Rights Certificates surrendered entitled such holder
to purchase. If this Rights Certificate shall be exercised in part, the holder
shall be entitled to receive upon surrender hereof another Rights Certificate or
Rights Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Rights Certificate (a) may be redeemed by the Board of
Directors of the Company at its option at a redemption price of $.01 per Right,
subject to adjustment, payable, at the election of the Company, in cash or
shares (including fractional shares) of Common Stock or such other consideration
as the Board of Directors may determine at any time prior to the earlier of (i)
12:00 a.m. (midnight, New York, New York time) on the Stock Acquisition Date,
and (ii) the Expiration Date, or (b) may be exchanged after the Stock
Acquisition Date by the Board of Directors of the Company at its option in whole
or in part for shares of the Company's Common Stock or other Company securities.
No fractional shares of Preferred Stock (other than fractions that
are integral multiples of one one-hundredth of a share of Preferred Stock, which
may, at the election of the Company, be evidenced by depository receipts) are
required to be issued upon the exercise of any Right or Rights evidenced hereby,
but in lieu thereof the Company may elect to (i) evidence fractional shares by
depositary receipts, (ii) issue scrip or warrants in registered form (either
represented by a certificate or uncertificated) or in bearer form (represented
by a certificate) which shall entitle the holder to receive a full share upon
the surrender of such scrip or warrants aggregating a full share, or (iii) make
a cash payment, as provided in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be entitled to
vote or to receive dividends on, or shall be deemed for any purpose the holder
of, Preferred Stock or of any other securities, cash or property which may at
any time be issuable on the exercise hereof, nor shall anything contained in the
Rights Agreement or this Rights Certificate be construed to confer upon the
holder hereof, as such, any of the rights of a stockholder of the Company,
including, without limitation, any right to vote for the election of directors
or upon any matter submitted to
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<PAGE>
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
stockholders (except as provided in the Rights Agreement), or to receive
dividends or subscription rights, or to institute, as a holder of Preferred
Stock or other securities issuable on the exercise of the Rights represented by
this Rights Certificate, any derivative action, or otherwise, until and only to
the extent the Right or Rights evidenced by this Rights Certificate shall have
been exercised as provided in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal. Dated as of _______ __, ____.
ATMI, INC.
By:
------------------------------------
Daniel P. Sharkey
Chief Financial Officer, Vice President and
Treasurer
Countersigned:
Fleet National Bank
By: __________________________
Name:
Title:
[Form of Reverse Side of Rights Certificate]
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<PAGE>
Form of Assignment
(To be executed by the registered holder if such holder desires
to transfer the Rights Certificate.)
FOR VALUE RECEIVED the undersigned ________________ hereby sells,
assigns and transfers unto
(Please print name and address of transferee) _________ Rights evidenced by this
Rights Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint ________________________ with a
power of attorney to transfer the said Rights and a Rights Certificate
evidencing such Rights on the books of ATMI, Inc., with full power of
substitution.
A new Rights Certificate evidencing the remaining balance, if any,
of such Rights not hereby sold, assigned and transferred shall be mailed to and
registered in the name of the undersigned unless such person requests that such
Rights Certificate be registered in the name of and mailed to (complete only if
a Rights Certificate evidencing any remaining balance of Rights is to be
registered in a name other than the name of the undersigned):
Please insert Social Security or
other identifying number of transferee: _________________________
-----------------------------------------------------------------
(Please print name and address)
-----------------------------------------------------------------
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<PAGE>
Certificate
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) this Rights Certificate or any Rights evidenced hereby __ are __
are not being sold, assigned and transferred by or on behalf of a Person who is
or was an Acquiring Person or an Affiliate or Associate of an Acquiring Person
(as such terms are defined in the Rights Agreement); and
(2) after due inquiry and to the best knowledge of the undersigned,
the undersigned __ did __did not acquire any of the Rights evidenced by this
Rights Certificate from any Person who is or was an Acquiring Person or an
Affiliate or Associate of an Acquiring Person.
Dated: ____________________________ _________________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by an eligible guarantor institution with
membership in a recognized signature guarantee medallion program as approved by
the Stock Transfer Association.
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<PAGE>
Notice
The signature on the foregoing Form of Assignment must correspond to
the name as written upon the face of this Rights Certificate in every
particular, without alteration or enlargement or any change whatsoever.
In the event the certification set forth above in the Form of
Assignment is not completed, the Company will deem the beneficial owner of the
Rights evidenced by this Right Certificate to be an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement) and, in the
case of an assignment or other transfer of this Rights Certificate or any Rights
evidenced hereby, will affix a legend to that effect on any Rights Certificate
issued in whole or partial exchange for this Rights Certificate.
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<PAGE>
Form of Election to Purchase
(To be executed if holder desires to exercise
the Rights represented by this Rights Certificate)
To: ATMI, Inc.
The undersigned hereby irrevocably elects to exercise
____________________ Rights represented by this Rights Certificate to purchase
the shares of Preferred Stock or other securities, cash or other property
issuable upon the exercise of such Rights and requests that certificates for
such shares or other securities be issued in the name of, and such cash or other
property be paid to:
Please insert social security
or other identifying number: ________________________
___________________________________________________________________
(Please print name and address)
___________________________________________________________________
A new Rights Certificate evidencing the remaining balance, if any,
of such Rights not hereby exercised shall be mailed to and registered in the
name of the undersigned unless such person requests that such Rights Certificate
be registered in the name of and mailed to (complete only if Rights Certificate
evidencing any remaining balance of Rights is to be registered in a name other
than the name of the undersigned):
Please insert social security
or other identifying number: ________________________
___________________________________________________________________
(Please print name and address)
___________________________________________________________________
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<PAGE>
Certificate
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) the Rights evidenced by this Rights Certificate __are __are not
being exercised by or on behalf of a Person who is or was an Acquiring Person or
an Affiliate or Associate of an Acquiring Person (as such terms are defined in
the Rights Agreement); and
(2) after due inquiry and to the best knowledge of the undersigned,
the undersigned __ did __ did not acquire the Rights evidenced by this Rights
Certificate from any Person who is or was an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated: __________________________ __________________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by an eligible guarantor institution with
membership in a recognized signature guarantee medallion program as approved by
the Stock Transfer Association.
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<PAGE>
Notice
The signature on the foregoing Form of Election to Purchase must
correspond to the name as written upon the face of this Rights Certificate in
every particular, without alteration or enlargement or any change whatsoever.
In the event the certification set forth above in the Form of
Election to Purchase is not completed, the Company will deem the beneficial
owner of the Rights evidenced by this Rights Certificate to be an Acquiring
Person or an Affiliate or Associate thereof (as defined in the Rights Agreement)
and, in the case of an assignment or other transfer of this Rights Certificate
or any Rights evidenced hereby, will affix a legend to that effect on any Rights
Certificate issued in whole or partial exchange for this Rights Certificate.
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<PAGE>
Exhibit C
Summary of Rights to Purchase Preferred Stock
On October 13, 2000, the Board of Directors of ATMI, Inc. (the
"Company") authorized the issuance of one preferred share purchase right (a
"Right") for each outstanding share of common stock, par value $.01 per share
(the "Common Stock"), of the Company. The distribution is payable to the
stockholders of record at the close of business on November 9, 2000 (the "Record
Date"), which is also the payment date, and with respect to all shares of Common
Stock that become outstanding after the Record Date and prior to the earliest of
the Distribution Date (as defined below), the redemption of the Rights, the
exchange of the Rights, or the expiration of the Rights (and, in certain cases,
following the Distribution Date). Each Right entitles the registered holder to
purchase from the Company one one-hundredth of a share of a Junior Participating
Preferred Stock, par value $.01 per share, of the Company (the "Preferred
Stock") at an exercise price of $175.00 per one one-hundredth of a share of
Preferred Stock (the "Purchase Price"), subject to adjustment. The description
and terms of the Rights, and certain defined terms used herein, are set forth in
a Rights Agreement (as amended, the "Rights Agreement") between the Company and
Fleet National Bank as Rights Agent (the "Rights Agent"), dated as of October
13, 2000.
Until the earlier to occur of (i) the expiration of the Company's
redemption rights on the date of public disclosure that a person or group other
than certain Exempt Persons (an "Acquiring Person"), together with persons
affiliated or associated with such Acquiring Person (other than those that are
Exempt Persons), has acquired, or obtained the right to acquire, beneficial
ownership of 15% or more (20% or more in the case of certain acquisitions by
institutional investors) of the outstanding Common Stock (the "Stock Acquisition
Date") and (ii) the tenth business day after the date (the "Tender Offer Date")
of commencement or public disclosure of an intention to commence a tender offer
or exchange offer by a person other than an Exempt Person if, upon consummation
of the offer, such person could acquire beneficial ownership of 15% or more of
the outstanding Common Stock (the earlier of such dates being called the
"Distribution Date"), the Rights will be evidenced by Common Stock certificates
and not by separate certificates. The Rights Agreement provides that, until the
Distribution Date (or earlier redemption, exchange or expiration of the Rights),
the Rights will be transferred with and only with the Common Stock. Until the
Distribution Date (or earlier redemption, exchange or expiration of the Rights),
new Common Stock certificates issued after November 13, 2000, upon transfer or
new issuance of shares of Common Stock, will contain a notation incorporating
the Rights Agreement by reference. Until the Distribution Date (or earlier
redemption, exchange or expiration of the Rights) the surrender for transfer of
any certificate for Common Stock will also constitute the transfer of the Rights
associated with the Common Stock represented by such certificate. As soon as
practicable following the Distribution Date, separate certificates evidencing
the Rights ("Right Certificates") will be mailed to holders of record of the
Common Stock as of the close of business on the Distribution Date, and such
separate Right Certificates alone will evidence the Rights.
The Rights will first become exercisable on the Stock Acquisition
Date (unless sooner redeemed or exchanged). The Rights will expire at the close
of business on October 12,
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<PAGE>
2010 (the "Expiration Date"), unless earlier redeemed or exchanged by the
Company as described below.
The Purchase Price payable, and the number of shares of Preferred
Stock or other securities, cash or other property issuable, upon exercise of the
Rights are subject to adjustment from time to time to prevent dilution (i) in
the event of a stock dividend or distribution on, or a subdivision, combination
or reclassification of, the Preferred Stock, (ii) upon the grant to holders of
the Preferred Stock of certain rights, options or warrants to subscribe for
Preferred Stock or securities convertible into or exchangeable for Preferred
Stock at less than the current market price of the Preferred Stock or (iii) upon
the distribution to holders of the Preferred Stock of evidences of indebtedness
or assets (excluding regular periodic cash dividends, subject to certain
limitations set forth in the Rights Agreement) or of subscription rights or
warrants (other than those referred to above). In addition, the Purchase Price
payable, and the number of shares of Preferred Stock purchasable, on exercise of
a Right is subject to adjustment in the event that the Company should (i)
declare or pay any dividend on the Common Stock payable in Common Stock or (ii)
effect a subdivision or combination of the Common Stock into a different number
of shares of Common Stock.
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional shares of Preferred Stock will be issued
(other than fractions which are integral multiples of one one-hundredth of a
share of Preferred Stock, which may, at the election of the Company, be
evidenced by depositary receipts) and in lieu thereof, an adjustment in cash
will be made based on the market price of the Preferred Stock on the last
trading date prior to the date of exercise.
In the event that there is public disclosure that an Acquiring
Person has become such, proper provision would be made so that each holder of a
Right, other than Rights that are or were beneficially owned by the Acquiring
Person and certain related persons and transferees (which will thereafter be
void), will thereafter have the right to receive upon exercise that number of
shares of Common Stock (or other securities) having at the time of such
transaction a market value of two times the Purchase Price of the Right. In
addition, the Company's Board of Directors has the option of exchanging all or
part of the Rights (excluding void Rights) for an equal number of shares of
Common Stock in the manner described in the Rights Agreement.
In the event that, at any time following public disclosure that an
Acquiring Person has become such, the Company is involved in a merger or other
business combination transaction where the Company is not the surviving
corporation or where the Common Stock is changed or exchanged or in a
transaction or transactions as a result of which 50% or more of its consolidated
assets or earning power are sold, proper provision would be made so that each
holder of a Right (other than such Acquiring Person and certain related persons
or transferees) shall thereafter have the right to receive, upon the exercise
thereof at the then current Purchase Price of the Right, that number of shares
of common stock of the acquiring company or the Company, as the case may be,
which at the time of such transaction would have a market value of two times the
Purchase Price of the Right.
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<PAGE>
At any time prior to public disclosure that an Acquiring Person has
become such, the Board of Directors of the Company may redeem the Rights in
whole, but not in part, at a price of $.01 per Right (the "Redemption Price"),
payable in cash, shares (including fractional shares) of Common Stock or any
other form of consideration deemed appropriate by the Board of Directors.
At any time prior to the Distribution Date, the Board of Directors
of the Company may amend or supplement the Rights Agreement without the approval
of the Rights Agent or any holder of the Rights. From and after the Distribution
Date, the Board of Directors of the Company may generally only amend or
supplement the Rights Agreement without such approval only to cure ambiguity,
correct or supplement any defective or inconsistent provision or change or
supplement the Rights Agreement in any manner which shall not adversely affect
the interests of the holders of the Rights (other than an Acquiring Person or an
affiliate or associate thereof). Immediately upon the action of the Board of
Directors providing for any amendment or supplement, such amendment or
supplement will be deemed effective.
The Preferred Stock purchasable upon exercise of the Rights will not
be redeemable. Each share of Preferred Stock will be entitled to a minimum
preferential quarterly dividend payment, when, as and if declared by the Board
of Directors of the Company, equal to the greater of $1.00 per share and 100
times the dividend declared per share of Common Stock, subject to anti-dilution
adjustment. In the event of liquidation, the holders of the Preferred Stock will
be entitled to a preferential liquidation payment equal to $100 per share, plus
accrued and unpaid dividends, subject to anti-dilution adjustment. Each share of
Preferred Stock will have 100 votes per share, subject to anti-dilution
adjustment, voting together with the Common Stock. In the event of any merger,
consolidation or other transaction in which the Common Stock is exchanged, each
share of Preferred Stock will be entitled to receive 100 times the amount
received per Common Stock, subject to anti-dilution adjustment.
Exempt Persons include (i) the Company, (ii) any Subsidiary of the
Company, (iii) any employee benefit plan of the Company or of any Subsidiary of
the Company and (iv) any Person holding Common Stock for any such employee
benefit plan or for employees of the Company or of any Subsidiary of the Company
pursuant to the terms of any such employee benefit plan.
The Rights may have certain anti-takeover effects. The Rights may
cause substantial dilution to a person or group (except as described above with
respect to an Exempt Person) that attempts to acquire the Company on terms not
approved by the Board. The Rights should not interfere with any merger or other
business combination approved by the Board of Directors prior to the time a
person or group other than an Exempt Person has acquired beneficial ownership of
15% or more (20% or more in the case of certain acquisitions by institutional
investors) of the Common Stock, because until such time the Rights may generally
be redeemed by the Company at $.01 per Right.
Until a Right is exercised, the holder thereof, as such, will have
no rights as a stockholder of the Company, including, without limitation, the
right to vote or to receive dividends.
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<PAGE>
A copy of the Rights Agreement has been filed with the Securities
and Exchange Commission as an Exhibit to the Company's Current Report on Form
8-K. A copy of the Rights Agreement is available free of charge from the
Company. This summary description of the Rights does not purport to be complete
and is qualified in its entirety by reference to the Rights Agreement, which is
hereby incorporated herein by reference.
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