SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
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FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
March 31, 1998
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W. R. GRACE & CO.
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(Exact name of registrant as specified in its charter)
Delaware 1-13953 65-0773649
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(State or other (Commission File (IRS Employer
jurisdiction of Number) Identification No.)
incorporation)
One Town Center Road, Boca Raton, Florida 33486-1010
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 561/362-2000
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GRACE SPECIALTY CHEMICALS, INC.
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(Former Name)
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Item 1. Changes in Control of Registrant.
On March 31, 1998, W. R. Grace & Co., a Delaware corporation renamed
Sealed Air Corporation ("Old Grace"), distributed on a one-for-one basis (the
"Spin-off") all of the outstanding shares of common stock, par value $.01 per
share, of W. R. Grace & Co., a Delaware corporation formerly named Grace
Specialty Chemicals, Inc. (the "Company"), each together with an associated
preferred share purchase right, to the holders of record of the common stock of
Old Grace as of such date. The Spin-off was effected pursuant to a Distribution
Agreement, dated as of March 30, 1998, by and among Old Grace, the Company and
Cryovac, Inc., a Delaware corporation ("Cryovac"). No consideration was paid by
the stockholders of Old Grace for the shares of the Company's common stock
received in the Spin-off. Immediately after the Spin-off, all of the capital
stock of the Company was held by the former stockholders of Old Grace.
The above matters are more fully described in a Joint Proxy
Statement/Prospectus dated February 13, 1998 (the "Joint Proxy
Statement/Prospectus") included in a Registration Statement on Form S-4 (File
No. 333-46281) under the Securities Act of 1933, as amended, filed by Old Grace
on February 13, 1998, and in an Information Statement dated February 13, 1998
included in a Registration Statement on Form 10 (File No. 001-13953) under the
Securities Exchange Act of 1934, as amended, filed by the Company on March 13,
1998.
Item 5. Other Events.
(a) As a result of the Spin-off, Old Grace's principal remaining
asset was 100% of the outstanding capital stock of Cryovac. On March 31, 1998,
pursuant to an Agreement and Plan of Merger, dated as of August 14, 1997, a
wholly owned subsidiary of Old Grace merged (the "Merger") with and into Sealed
Air Corporation, a Delaware corporation ("Old Sealed Air"), with Old Sealed Air
surviving the Merger and changing its name to Sealed Air Corporation (US). The
Merger resulted in the combination of Old Grace's packaging business with Old
Sealed Air (Old Grace after the Merger being referred to herein as "New Sealed
Air"). Immediately prior to the Merger, each outstanding share of Old Grace
common stock, par value $.01 per share, was recapitalized into .536 of a share
of common stock, par value $.10 per share, of New Sealed Air and .475 of a share
of a new series of convertible preferred stock, par value $.10 per share, of New
Sealed Air. In the Merger, Old Sealed Air stockholders received one share of New
Sealed Air common stock for each share of Old Sealed Air common stock, par value
$.01 per share, held immediately prior to the Merger. Immediately after the
Merger, former Old Grace stockholders owned, in the aggregate, approximately 63%
of the equity of New Sealed Air on a fully diluted basis and former Old Sealed
Air shareholders owned the remaining 37%.
The above matters are more fully described in the Joint Proxy
Statement/Prospectus.
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On March 31, 1998 and April 7, 1998, the Company issued press
releases with respect to the foregoing, which are filed as exhibits hereto and
incorporated by reference herein.
(b) On April 2, 1998, the Company announced that it had entered into
a definitive agreement to acquire the Crosfield business of Imperial Chemical
Industries PLC for $455 million in cash. Completion of the transaction is
subject to various conditions, including customary governmental approvals, and
is expected to take place in mid-1998. The announcement also stated that the
Company's board of directors had approved a program to purchase up to 20% of the
outstanding shares of the Company's common stock in the open market and that the
Company is continuing a strategic review of its Darex Container Products unit
and that such review will be concluded this year.
The Company's April 2, 1998 press release is filed as an
exhibit hereto and incorporated by reference herein.
Item 7. Financial Statements, Pro Forma Financial Information and
Exhibits.
Exhibits. The following exhibits are filed with this Report:
Exhibit Description
No.
3.1 Restated Certificate of Incorporation of W. R.
Grace & Co., a Delaware corporation.
3.2 Amended and Restated By-Laws of W. R. Grace & Co.
4.1 Rights Agreement by and between W. R. Grace & Co.
and The Chase Manhattan Bank, as Rights Agent.
4.2 First Amendment, dated as of February 17, 1998, to the
364-Day Credit Agreement, dated as of May 16, 1997,
among W. R. Grace & Co.-Conn., W. R. Grace & Co., Grace
Specialty Chemicals, Inc., the several banks parties
thereto, NationsBank, N.A. (South), as documentation
agent, and The Chase Manhattan Bank, as administrative
agent for such banks.
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4.3 First Amendment, dated as of February 17, 1998, to the
Credit Agreement, dated as of May 16, 1997, among W. R.
Grace & Co.-Conn., W. R. Grace & Co., Grace Specialty
Chemicals, Inc., the several banks parties thereto and
The Chase Manhattan Bank, as administrative agent for
such banks.
99.1 Press Release issued by W. R. Grace & Co., dated
March 31, 1998.
99.2 Press Release issued by W. R. Grace & Co., dated
April 2, 1998.
99.3 Press Release issued by W. R. Grace & Co., dated
April 7, 1998.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed by the undersigned,
thereunto duly authorized.
W. R. GRACE & CO.
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(Registrant)
By /s/ Robert B.Lamm
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Robert B. Lamm
Vice President and Secretary
Dated: April 8, 1998
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W. R. GRACE & CO.
Current Report on Form 8-K
Exhibit Index
Exhibit
No. Description
3.1 Restated Certificate of Incorporation of W. R.
Grace & Co., a Delaware corporation.
3.2 Amended and Restated By-Laws of W. R. Grace & Co.
4.1 Rights Agreement by and between W. R. Grace & Co.
and The Chase Manhattan Bank, as Rights Agent.
4.2 First Amendment, dated as of February 17, 1998, to the
364-Day Credit Agreement, dated as of May 16, 1997,
among W. R. Grace & Co.-Conn., W. R. Grace & Co., Grace
Specialty Chemicals, Inc., the several banks parties
thereto, NationsBank, N.A. (South), as documentation
agent, and The Chase Manhattan Bank, as administrative
agent for such banks.
4.3 First Amendment, dated as of February 17, 1998, to the
Credit Agreement, dated as of May 16, 1997, among W. R.
Grace & Co.-Conn., W. R. Grace & Co., Grace Specialty
Chemicals, Inc., the several banks parties thereto and
The Chase Manhattan Bank, as administrative agent for
such banks.
99.1 Press Release issued by W. R. Grace & Co., dated
March 31, 1998.
99.2 Press Release issued by W. R. Grace & Co., dated
April 2, 1998.
99.3 Press Release issued by W. R. Grace & Co., dated
April 7, 1998.
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Exhibit 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
W. R. GRACE & CO.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
* * * * * * *
The undersigned, Larry Ellberger, certifies that he is the Senior Vice
President and Chief Financial Officer of W. R. Grace & Co., and does hereby
further certify as follows:
1. The name of the corporation (the "Corporation") is "W. R. Grace
& Co."
2. The original Certificate of Incorporation was filed with the Secretary
of State of the State of Delaware on August 6, 1997, under the name Grace
Specialty Chemicals, Inc.
3. This Restated Certificate of Incorporation has been duly proposed by
resolutions adopted and declared advisable by the Board of Directors of
the Corporation and duly executed by an officer of the Corporation in
accordance with the provisions of Sections 103 and 245 of the General
Corporation Law of the State of Delaware and, upon filing with the
Secretary of State in accordance with Section 103, shall supersede the
original Certificate of Incorporation and shall, as it may thereafter be
amended in accordance with its terms and applicable law, be the
Certificate of Incorporation of the Corporation.
4. The text of the Certificate of Incorporation of the Corporation is
hereby restated to read in its entirety as follows:
ARTICLE I
The name of the corporation (the "Corporation") is:
W. R. Grace & Co.
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ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is The Prentice-Hall Corporation System, Inc., 1013 Centre Road,
Wilmington, Delaware, County of New Castle. The name of the Corporation's
registered agent at such address is The Prentice-Hall Corporation System, Inc.
ARTICLE III
The purpose of the Corporation shall be to engage in any lawful act or
activity for which corporations may be organized and incorporated under the
General Corporation Law of the State of Delaware (the "GCL").
ARTICLE IV
(a) The total number of shares of stock which the Corporation shall have
authority to issue is Three Hundred and Fifty-Three Million (353,000,000),
consisting of Fifty-Three Million (53,000,000) shares of Preferred Stock, par
value $.01 per share (the "Preferred Stock"), and Three Hundred Million
(300,000,000) shares of Common Stock, par value $.01 per share (the "Common
Stock").
(b) The Preferred Stock may be issued from time to time in one or more
series. The Board of Directors is hereby authorized to provide for the issuance
of shares of Preferred Stock in series and, by filing a certificate pursuant to
the applicable law of the State of Delaware ("Preferred Stock Designation"), to
establish from time to time the number of shares to be included in each such
series, and to fix the designation, powers, preferences and rights of the shares
of each such series and the qualifications, limitations and restrictions
thereof. The authority of the Board of Directors with respect to each series
shall include, but not be limited to, determination of the following:
(1) The designation of the series, which may be by distinguishing
number, letter or title.
(2) The number of shares of the series, which number the Board of
Directors may thereafter (except where otherwise provided in the Preferred
Stock Designation) increase or decrease (but not below the number of
shares thereof then outstanding).
(3) Whether dividends, if any, shall be cumulative or noncumulative
and the dividend rate of the series.
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(4) The dates on which dividends, if any, shall be payable.
(5) The redemption rights and price or prices, if any, for shares of
the series.
(6) The terms and amount of any sinking fund provided for the
purchase or redemption of shares of the series.
(7) The amounts payable on, and the preferences, if any, of, shares
of the series in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation.
(8) Whether the shares of the series shall be convertible into
shares of any other class or series, or any other security, of the
Corporation or any other corporation, and, if so, the specification of
such other class or series of such other security, the conversion price or
prices or rate or rates, any adjustments thereof, the date or dates at
which such shares shall be convertible and all other terms and conditions
upon which such conversion may be made.
(9) Restrictions on the issuance of shares of the same series or of
any other class or series.
(10) The voting rights, if any, of the holders of shares of the
series.
(c) The Common Stock shall be subject to the express terms of the
Preferred Stock and any series thereof. Each share of Common Stock shall be
equal to each other share of Common Stock. The holders of shares of Common Stock
shall be entitled to one vote for each such share upon all questions presented
to the stockholders.
Except as may be provided in this Restated Certificate of Incorporation or
in a Preferred Stock Designation, or as may be required by law, the Common Stock
shall have the exclusive right to vote for the election of directors and for all
other purposes, and holders of Preferred Stock shall not be entitled to receive
notice of any meeting of stockholders at which they are not entitled to vote.
(d) The Corporation shall be entitled to treat the person in whose name
any share of its stock is registered as the owner thereof for all purposes and
shall not be bound to recognize any equitable or other claim to, or interest in,
such share on the part of any other person, whether or not the Corporation shall
have notice thereof, except as expressly provided by applicable law.
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(e) There shall be designated a series of the Corporation's Preferred
Stock, as follows:
(1) Designation and Amount. The shares of such series shall be
designated as "Series A Junior Participating Preferred Stock" (the "Series
A Preferred Stock") and the number of shares constituting the Series A
Preferred Stock shall be 3,000,000. Such number of shares may be increased
or decreased by resolution of the Board of Directors; provided, that no
decrease shall reduce the number of shares of Series A Preferred Stock to
a number less than the number of shares then outstanding plus the number
of shares reserved for issuance upon the exercise of outstanding options,
rights or warrants or upon the conversion of any outstanding securities
issued by the Corporation convertible into Series A Preferred Stock.
(2) Dividends and Distributions.
(a) Subject to the rights of the holders of any shares of any series
of Preferred Stock (or any similar stock) ranking prior and superior to
the Series A Preferred Stock with respect to dividends, the holders of
shares of Series A Preferred Stock, in preference to the holders of Common
Stock, and of any other junior stock, shall be entitled to receive, when,
as and if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in cash on the
first day 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 Preferred Stock, in
an amount per share (rounded to the nearest cent) equal to the greater of
(a) $1 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 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 of a fraction of a share of Series A Preferred Stock. In the event
the Corporation shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the amount to which holders of shares
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of Series A Preferred Stock were entitled immediately prior to such
event under clause (b) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(b) The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in subparagraph (a) of this paragraph
(2) immediately after it declares a dividend or distribution on the Common
Stock (other than a dividend payable in shares of Common Stock); provided
that, in the event no dividend or distribution shall have been declared on
the Common Stock during the period between any Quarterly Dividend Payment
Date and the next subsequent Quarterly Dividend Payment Date, a dividend
of $1 per share on the Series A Preferred Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment
Date next preceding the date of issue of such shares, unless the date of
issue of such shares is 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 of issue of such shares, or unless the date of
issue is a Quarterly Dividend Payment Date or is a date after the record
date for the determination of holders of shares of Series A Preferred
Stock entitled to receive a quarterly dividend 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. Accrued but unpaid dividends shall not bear interest. Dividends paid
on the shares of Series A Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such shares
shall be allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may fix a record
date for the determination of holders of shares of Series A Preferred
Stock entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be not more than 60 days prior to the
date fixed for the payment thereof.
(3) Voting Rights. The holders of shares of Series A Preferred Stock
shall have the following voting rights:
(a) Subject to the provision for adjustment hereinafter set forth,
each share of Series A Preferred Stock shall entitle the holder thereof to
100 votes on all matters submitted to a vote of the stockholders of the
Corporation. In the
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event the Corporation shall at any time declare or pay any dividend
on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the number of votes per
share to which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event shall be adjusted by multiplying such
number by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(b) Except as otherwise provided herein, in any other certificate of
designations creating a series of Preferred Stock or any similar stock, or
by law, the holders of shares of Series A Preferred Stock and the holders
of shares of Common Stock and any other capital stock of the Corporation
having general voting rights shall vote together as one class on all
matters submitted to a vote of stockholders of the Corporation.
(c) Except as set forth herein, or as otherwise provided by law,
holders of Series A 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.
(4) Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in paragraph (2) are
in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Preferred
Stock outstanding shall have been paid in full, the Corporation shall not:
(i)declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up) with
the Series A Preferred Stock, except dividends paid ratably on the
Series A Preferred Stock, and all such parity stock on which
dividends are payable or in arrears in proportion to the total
amounts to which the holders of all such shares are
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then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock, provided that the Corporation may at any
time redeem, purchase or otherwise acquire shares of any such junior
stock in exchange for shares of any stock of the Corporation ranking
junior (either as to dividends or upon dissolution, liquidation or
winding up) to the Series A Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series A Preferred Stock, or any shares
of stock ranking on a parity with the Series A Preferred Stock,
except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all holders
of such shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and
classes, shall determine in good faith will result in fair and
equitable treatment among the respective series of classes.
(b) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares
of stock of the Corporation unless the Corporation could, under
subparagraph (a) of this paragraph (4), purchase or otherwise acquire such
shares at such time and in such manner.
(5) Reacquired Shares. Any shares of Series A 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 subject to the conditions and restrictions
on issuance set forth herein, or in any other certificate of designations
creating a series of Preferred Stock or any similar stock or as otherwise
required by law.
(6) Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of the Corporation, no distribution shall be
made (1) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received $100 per share, plus an amount equal
to all accrued and unpaid
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dividends and distributions thereon, whether or not declared, to the
date of such payment, provided that the holders of shares of Series A
Preferred Stock shall also be entitled to receive an aggregate amount per
share, subject to the provision for adjustment hereinafter set forth,
equal to 100 times the aggregate amount to be distributed per share to
holders of shares of Common Stock, or (2) to the holders of shares of
stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, except
distributions made ratably on the Series A Preferred Stock and all such
parity stock in proportion to the total amounts to which the holders of
all such shares are entitled upon such liquidation, dissolution or winding
up. In the event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect
a subdivision or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the aggregate amount to
which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under the proviso in clause (1) of the
preceding sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately
prior to such event.
(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 are exchanged for or changed into other stock
or securities, cash and/or any other property, then in any such case each
share of Series A Preferred Stock shall at the same time be similarly
exchanged or changed into an amount per share, subject to the provision
for adjustment hereinafter set forth, equal to 100 times the aggregate
amount of stock, securities, cash 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 declare or pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or consolidation of
the outstanding shares of Common Stock (by re-classification or otherwise
than by payment of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the amount
set forth in the preceding sentence with respect to the exchange or change
of shares of Series A Preferred Stock shall be adjusted by multiplying
such amount by a fraction, the numerator of which is the number of shares
of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding
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immediately prior to such event.
(8) No Redemption. The shares of Series A Preferred Stock shall not
be redeemable.
(9) Rank. The Series A Preferred Stock shall rank, with respect to
the payment of dividends and the distribution of assets, junior to all
series of any other class of the Corporation's Preferred Stock.
(10) Amendment. This Restated Certificate of Incorporation of the
Corporation shall not be amended in any manner which would materially
alter or change the powers, preferences or special rights of the Series A
Preferred Stock so as to affect them adversely without the affirmative
vote of the holders of at least two-thirds of the outstanding shares of
Series A Preferred Stock, voting together as a single class.
ARTICLE V
The Board of Directors is hereby authorized to create and issue, whether
or not in connection with the issuance and sale of any of its stock or other
securities or property, rights entitling the holders thereof to purchase from
the Corporation shares of stock or other securities of the Corporation or any
other corporation. The times at which and the terms upon which such rights are
to be issued will be determined by the Board of Directors and set forth in the
contracts or instruments that evidence such rights. The authority of the Board
of Directors with respect to such rights shall include, but not be limited to,
determination of the following:
(1) The initial purchase price per share or other unit of the stock
or other securities or property to be purchased upon exercise of such
rights.
(2) Provisions relating to the times at which and the circumstances
under which such rights may be exercised or sold or otherwise transferred,
either together with or separately from, any other stock or other
securities of the Corporation.
(3) Provisions which adjust the number or exercise price of such
rights or amount or nature of the stock or other securities or property
receivable upon exercise of such rights in the event of a combination,
split or recapitalization of any stock of the Corporation, a change in
ownership of the Corporation's stock or other securities or a
reorganization, merger, consolidation, sale of assets or other occurrence
relating to the Corporation or any stock of the Corporation, and
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provisions restricting the ability of the Corporation to enter into
any such transaction absent an assumption by the other party or parties
thereto of the obligations of the Corporation under such rights.
(4) Provisions which deny the holder of a specified percentage of
the outstanding stock or other securities of the Corporation the right to
exercise such rights and/or cause the rights held by such holder to become
void.
(5) Provisions which permit the Corporation to redeem or exchange
such rights.
(6) The appointment of a rights agent with respect to such rights.
ARTICLE VI
In furtherance of, and not in limitation of, the powers conferred by law,
the Board of Directors is expressly authorized and empowered:
(1) to adopt, amend or repeal the By-laws of the Corporation;
provided, however, that the By-laws adopted by the Board of Directors
under the powers hereby conferred may be amended or repealed by the Board
of Directors or by the stockholders having voting power with respect
thereto, provided further that in the case of amendments by stockholders,
the affirmative vote of the holders of at least 80 percent of the voting
power of the then outstanding Voting Stock (as defined below), voting
together as a single class, shall be required to alter, amend or repeal
any provision of the By-laws; and
(2) from time to time to determine whether and to what extent, and
at what times and places, and under what conditions and regulations, the
accounts and books of the Corporation, or any of them, shall be open to
inspection of stockholders; and, except as so determined or as expressly
provided in this Restated Certificate of Incorporation or in any Preferred
Stock Designation, no stockholder shall have any right to inspect any
account, book or document of the Corporation other than such rights as may
be conferred by applicable law.
The Corporation may in its By-laws confer powers upon the Board of
Directors in addition to the foregoing and in addition to the powers and
authorities expressly conferred upon the Board of Directors by applicable law.
Notwithstanding anything contained in this Restated Certificate of Incorporation
to the contrary, the affirmative vote of the holders of at least 80 percent of
the voting power of the then outstanding Voting Stock, voting together as a
single class, shall be required to amend, repeal or
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adopt any provision inconsistent with paragraph (1) of this Article VI.
For the purposes of this Restated Certificate of Incorporation, "Voting Stock"
shall mean the outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of directors.
ARTICLE VII
Subject to the rights of the holders of any series of Preferred Stock or
any other series or class of stock as set forth in this Restated Certificate of
Incorporation to elect additional directors under specific circumstances, any
action required or permitted to be taken by the stockholders of the Corporation
must be effected at a duly called annual or special meeting of stockholders of
the Corporation and may not be effected by any consent in writing in lieu of a
meeting of such stockholders. Notwithstanding anything contained in this
Restated Certificate of Incorporation to the contrary, the affirmative vote of
at least 80 percent of the voting power of the then outstanding Voting Stock,
voting together as a single class, shall be required to amend, repeal or adopt
any provision inconsistent with this Article VII.
ARTICLE VIII
Subject to the rights of the holders of any series of Preferred Stock or
any other series or class of stock as set forth in this Restated Certificate of
Incorporation to elect additional directors under specified circumstances, the
number of directors of the Corporation shall be fixed, and may be increased or
decreased from time to time, in such manner as may be prescribed by the By-laws
of the Corporation.
Unless and except to the extent that the By-laws of the Corporation shall
so require, the election of directors of the Corporation need not be by written
ballot.
The directors, other than those who may be elected by the holders of any
series of Preferred Stock or any other series or class of stock as set forth in
this Restated Certificate of Incorporation, shall be divided into three classes,
as nearly equal in number as possible. One class of directors shall be initially
elected for a term expiring at the annual meeting of stockholders to be held in
1999, another class shall be initially elected for a term expiring at the annual
meeting of stockholders to be held in 2000, and another class shall be initially
elected for a term expiring at the annual meeting of stockholders to be held in
2001. Members of each class shall hold office until their successors are elected
and qualified. At each succeeding annual meeting of the stockholders of the
Corporation, the successors of the class of directors whose term expires at that
meeting shall be elected by a plurality vote of all votes cast at such
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meeting to hold office for a term expiring at the annual meeting of
stockholders held in the third year following the year of their election.
Subject to the rights of the holders of any series of Preferred Stock or
any other series or class of stock as set forth in this Restated Certificate of
Incorporation to elect additional directors under specified circumstances, any
director may be removed from office at any time by the stockholders, but only
for cause.
Notwithstanding anything contained in this Restated Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
80 percent of the voting power of the then outstanding Voting Stock, voting
together as a single class, shall be required to amend, repeal or adopt any
provision inconsistent with this Article VIII.
ARTICLE IX
Each person who is or was or has agreed to become a director or officer of
the Corporation, or each such person who is or was serving or who has agreed to
serve at the request of the Board of Directors or an officer of the Corporation
as an employee or agent of the Corporation or as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans (including
the heirs, executors, administrators or estate of such person), shall be
indemnified by the Corporation, in accordance with the By-laws of the
Corporation, to the fullest extent permitted from time to time by the GCL as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than said law permitted prior to such amendment)
or any other applicable laws as presently or hereafter in effect. Without
limiting the generality or the effect of the foregoing, the Corporation may
enter into one or more agreements with any person which provide for
indemnification greater than or different from that provided in this Article IX.
Any amendment or repeal of this Article IX shall not adversely affect any right
or protection existing hereunder in respect of any act or omission occurring
prior to such amendment or repeal.
ARTICLE X
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (1) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (2) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (3) under Section 174 of the GCL, or (4) for
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any transaction from which the director derived an improper personal
benefit. Any amendment or repeal of this Article X shall not adversely affect
any right or protection of a director of the Corporation existing hereunder in
respect of any act or omission occurring prior to such amendment or repeal.
ARTICLE XI
Except as may be expressly provided in this Restated Certificate of
Incorporation, the Corporation reserves the right at any time and from time to
time to amend, alter, change or repeal any provision contained in this Restated
Certificate of Incorporation or a Preferred Stock Designation, and any other
provisions authorized by the laws of the State of Delaware at the time in force
may be added or inserted, in the manner now or hereafter prescribed herein or by
applicable law, and all rights, preferences and privileges of whatsoever nature
conferred upon stockholders, directors or any other persons whomsoever by and
pursuant to this Restated Certificate of Incorporation in its present form or as
hereafter amended are granted subject to the right reserved in this Article XI;
provided, however, that any amendment or repeal of Article IX or Article X of
this Restated Certificate of Incorporation shall not adversely affect any right
or protection existing hereunder in respect of any act or omission occurring
prior to such amendment or repeal; and provided further that no Preferred Stock
Designation shall be amended after the issuance of any shares of the series of
Preferred Stock created thereby, except in accordance with the terms of such
Preferred Stock Designation and the requirements of applicable law.
IN WITNESS WHEREOF, W. R. Grace & Co. has caused this Restated
Certificate of Incorporation to be signed by its Senior Vice President this
3rd day of April, 1998.
W. R. GRACE & CO.
By: /s/ Larry Ellberger
-----------------------------
Senior Vice President
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Exhibit 3.2
AMENDED AND RESTATED
BY-LAWS
OF
W. R. GRACE & CO.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
ARTICLE I
OFFICES AND RECORDS
Section 1.1. Delaware Office. The principal office of the Corporation in
the State of Delaware shall be located in Wilmington, Delaware, and the name and
address of its registered agent is The Prentice-Hall Corporation System, Inc.,
1013 Centre Road, Wilmington, Delaware.
Section 1.2. Other Offices. The Corporation may have such other offices,
either within or without the State of Delaware, as the Board of Directors may
designate or as the business of the Corporation may from time to time require.
Section 1.3. Books and Records. The books and records of the Corporation
may be kept outside the State of Delaware at such place or places as may from
time to time be designated by the Board of Directors.
ARTICLE II
STOCKHOLDERS
Section 2.1. Annual Meeting. The annual meeting of the stockholders of the
Corporation shall be held annually (a) on the tenth day of May, or (b) if such
day be a Saturday, Sunday or a holiday at the place where the meeting is to be
held, on the last business day preceding or on the first business day after such
tenth day of May, as may be fixed by the Board of Directors, or (c) on such
other date as may be fixed by the Board of Directors.
Section 2.2. Special Meeting. Subject to the rights of the holders of any
series of stock having a preference over the Common Stock of the Corporation as
to dividends or upon liquidation ("Preferred Stock") with respect to such series
of Preferred Stock, special meetings of the stockholders may be called only by
the Chairman, by the President or by the Board of Directors pursuant to a
resolution adopted by a majority of the total number of directors which the
Corporation would have if there were no vacancies (the "Whole Board").
Section 2.3. Place of Meeting. The Chairman, the President or the
Board of Directors, as the case may be, may designate the place of
meeting for any annual
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meeting or for any special meeting of the stockholders called by the
Chairman, the President or the Board of Directors. If no designation is so made,
the place of meeting shall be the principal office of the Corporation.
Section 2.4. Notice of Meeting. Written or printed notice, stating the
place, date and time of the meeting and the purpose or purposes for which the
meeting is called, shall be delivered by the Corporation not less than ten (10)
days nor more than sixty (60) days before the date of the meeting, either
personally or by mail, to each stockholder of record entitled to vote at such
meeting. If mailed, such notice shall be deemed to be delivered when deposited
in the U.S. mail with postage thereon prepaid, addressed to the stockholder at
his address as it appears on the stock transfer books of the Corporation. Such
further notice shall be given as may be required by law. Only such business
shall be conducted at a special meeting of stockholders as shall have been
brought before the meeting pursuant to the Corporation's notice of meeting.
Meetings may be held without notice if all stockholders entitled to vote are
present, or if notice is waived by those not present in accordance with Section
6.4 of these By-laws. Any previously scheduled meeting of the stockholders may
be postponed, and (unless the Certificate of Incorporation otherwise provides)
any special meeting of the stockholders may be cancelled, by resolution of the
Board of Directors upon public notice given prior to the date previously
scheduled for such meeting of stockholders.
Section 2.5. Quorum and Adjournment. Except as otherwise provided by law
or by the Certificate of Incorporation, the holders of a majority of the
outstanding shares of the Corporation entitled to vote generally in the election
of directors (the "Voting Stock"), represented in person or by proxy, shall
constitute a quorum at a meeting of stockholders, except that when specified
business is to be voted on by a class or series of stock voting as a class, the
holders of a majority of the voting power of the shares of such class or series
shall constitute a quorum of such class or series for the transaction of such
business. The chairman of the meeting or a majority of the shares so represented
may adjourn the meeting from time to time, whether or not there is a quorum. No
notice of the time and place of adjourned meetings need be given except as
required by law. The stockholders present at a duly called meeting at which a
quorum is present may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum.
Section 2.6. Proxies. At all meetings of stockholders, a
stockholder may vote by proxy executed in writing (or in any other manner
permitted by law) by the stockholder, or by his duly authorized
attorney-in-fact.
Section 2.7. Notice of Stockholder Business and Nominations.
(A) Annual
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Meetings of Stockholders. (1) Nominations of persons for election to the
Board of Directors of the Corporation and the proposal of business to be
considered by the stockholders may be made at an annual meeting of stockholders
(a) pursuant to the Corporation's notice of meeting, (b) by or at the direction
of the Board of Directors or (c) by any stockholder of the Corporation who was a
stockholder of record at the time of giving of the notice provided for in this
Section 2.7, who is entitled to vote at the meeting and who complies with the
notice procedures set forth in this Section 2.7.
(2) For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (c) of paragraph (A)(1) of
this Section 2.7, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation, and such other business must
otherwise be a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on the
60th day nor earlier than the close of business on the 90th day prior to the
first anniversary of the preceding year's annual meeting; provided, however,
that in the event that the date of the annual meeting is more than 30 days
before or more than 60 days after such anniversary date, notice by the
stockholder to be timely must be so delivered not earlier than the close of
business on the 90th day prior to such annual meeting and not later than the
close of business on the later of the 60th day prior to such annual meeting or
the 10th day following the day on which public announcement of the date of such
meeting is first made by the Corporation. In no event shall the public
announcement of an adjournment of an annual meeting commence a new time period
for the giving of a stockholder's notice as described above. Such stockholder's
notice shall set forth (a) as to each person whom the stockholder proposes to
nominate for election or re-election as a director all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors in an election contest, or is otherwise required, in each
case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and Rule 14a-11 thereunder (including such
person's written consent to being named in the proxy statement as a nominee and
to serving as a director if elected); (b) as to any other business that the
stockholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reasons for conducting
such business at the meeting and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the proposal is
made; and (c) as to the stockholder giving the notice and the beneficial owner,
if any, on whose behalf the nomination or proposal is made (i) the name and
address of such stockholder, as they appear on the Corporation's books, and of
such beneficial owner and (ii) the class and number of shares of the Corporation
which are owned beneficially and of record by such
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stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph (A)(2) of
this Section 2.7 to the contrary, in the event that the number of directors to
be elected to the Board of Directors of the Corporation is increased and there
is no public announcement by the Corporation naming all of the nominees for
election as director or specifying the size of the increased Board of Directors
at least 70 days prior to the first anniversary of the preceding year's annual
meeting, a stockholder's notice required by this Section 2.7 shall also be
considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the 10th day following the day on which such public announcement is
first made by the Corporation.
(B) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation's notice of meeting. Nominations of
persons for election to the Board of Directors may be made at a special meeting
of stockholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (a) by or at the direction of the Board of
Directors or (b) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice
provided for in this Section 2.7, who shall be entitled to vote at the meeting
and who complies with the notice procedures set forth in this Section 2.7. In
the event the Corporation calls a special meeting of stockholders for the
purpose of electing one or more directors to the Board of Directors, any such
stockholder may nominate a person or persons (as the case may be), for election
to such position(s) as specified in the Corporation's notice of meeting, if the
stockholder's notice required by paragraph (A)(2) of this Section 2.7 shall be
delivered to the Secretary at the principal executive offices of the Corporation
not earlier than the close of business on the 90th day prior to such special
meeting and not later than the close of business on the later of the 60th day
prior to such special meeting or the 10th day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting. In no
event shall the public announcement of an adjournment of a special meeting
commence a new time period for the giving of a stockholder's notice as described
above.
(C) General. (1) Only such persons who are nominated in accordance with
the procedures set forth in this Section 2.7 shall be eligible to serve as
directors and only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures
set forth
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in this Section 2.7. Except as otherwise provided by law, the Certificate
of Incorporation or these By-laws, the chairman of the meeting shall have the
power and duty to determine whether a nomination or any business proposed to be
brought before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this Section 2.7 and, if any
proposed nomination or business is not in compliance with this Section 2.7, to
declare that such defective proposal or nomination shall be disregarded.
(2) For purposes of this Section 2.7, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or a comparable national news service or in a document publicly filed by
the Corporation with the Securities and Exchange Commission pursuant to Section
13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section 2.7, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this by-law. Nothing in this Section 2.7 shall be deemed to affect any
rights (i) of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or
(ii) of the holders of any series of Preferred Stock to elect directors under
specified circumstances.
Section 2.8. Procedure for Election of Directors; Required Vote. Election
of directors at all meetings of the stockholders at which directors are to be
elected shall be by ballot, and, subject to the rights of the holders of any
series of Preferred Stock to elect directors under specified circumstances, a
plurality of the votes cast thereat shall elect directors. Except as otherwise
provided by law, the Certificate of Incorporation, or these By-laws, in all
matters other than the election of directors, the affirmative vote of a majority
of the shares present in person or represented by proxy at the meeting and
entitled to vote on the matter shall be the act of the stockholders.
Section 2.9. Inspectors of Elections; Opening and Closing the Polls. The
Board of Directors by resolution shall appoint one or more inspectors, which
inspector or inspectors may include individuals who serve the Corporation in
other capacities, including, without limitation, as officers, employees, agents
or representatives, to act at meetings of stockholders and make written reports
thereof. One or more persons may be designated as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate has been
appointed to act or is able to act at a meeting of stockholders, the chairman of
the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before discharging his or her duties, shall take and sign an oath
faithfully to execute
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the duties of inspector with strict impartiality and according to the best
of his or her ability. The inspectors shall have the duties prescribed by law.
The chairman of the meeting shall fix and announce at the meeting the date
and time of the opening and the closing of the polls for each matter upon which
the stockholders will vote at a meeting.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1. General Powers. The business and affairs of the Corporation
shall be managed under the direction of the Board of Directors. In addition to
the powers and authorities by these By-laws expressly conferred upon them, the
Board of Directors may exercise all such powers of the Corporation and do all
such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these By-laws required to be exercised or done by the
stockholders.
Section 3.2. Number, Tenure and Qualifications. Subject to the rights of
the holders of any series of Preferred Stock to elect directors under specified
circumstances, the number of directors shall be fixed from time to time
exclusively pursuant to a resolution adopted by a majority of the Whole Board.
The directors, other than those who may be elected by the holders of any series
of Preferred Stock under specified circumstances, shall be divided, with respect
to the time for which they severally hold office, into three classes, as nearly
equal in number as is reasonably possible, designated Class I, Class II and
Class III, with the initial term of office of the Class I directors to expire at
the 1999 annual meeting of stockholders, the initial term of office of the Class
II directors to expire at the 2000 annual meeting of stockholders and the
initial term of office of the Class III directors to expire at the 2001 annual
meeting of stockholders, with each director to hold office until his or her
successor shall have been duly elected and qualified. No person shall be
nominated for election as a director if such person will have attained the age
of 70 prior to the expiration of his or her term of office, except for any
person whose election as a director of the Corporation is effective upon the
distribution of shares of the Corporation's common stock by a Delaware
corporation formerly named "W. R. Grace & Co." and whose initial term of office
is scheduled to expire at the 2001 annual meeting of stockholders. At each
annual meeting of stockholders, commencing with the 1999 annual meeting,
directors elected to succeed those directors whose terms then expire shall be
elected for a term of office to expire at the third succeeding annual meeting of
stockholders after their election, with each director to hold office until his
or her successor shall have been
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duly elected and qualified.
Section 3.3. Regular Meetings. A regular meeting of the Board of Directors
shall be held without other notice than this Section 3.3 immediately after, and
at the same place as, the Annual Meeting of Stockholders. The Board of Directors
may fix the time and place for the holding of additional regular meetings
without notice.
Section 3.4. Special Meetings. Special meetings of the Board of Directors
shall be called at the request of the Chairman, the President or a majority of
the directors then in office. The person or persons authorized to call special
meetings of the Board of Directors may fix the place and time of such meetings.
Section 3.5. Notice. Notice of any special meeting or notice of a change
in the time or place of any regular meeting of the Board of Directors shall be
given to each director at his or her business or residence in writing by hand
delivery, first-class or overnight mail or courier service, telegram or
facsimile transmission, or orally by telephone. If mailed by first-class mail,
such notice shall be deemed adequately delivered when deposited in the U.S.
mails so addressed, with postage thereon prepaid, at least five (5) days before
such meeting. If by telegram, overnight mail or courier service, such notice
shall be deemed adequately delivered when the telegram is delivered to the
telegraph company or the notice is delivered to the overnight mail or courier
service company at least twenty-four (24) hours before such meeting. If by
facsimile transmission, such notice shall be deemed adequately delivered when
the notice is transmitted at least twelve (12) hours before such meeting. If by
telephone, the notice shall be communicated to the director or his or her
representative or answering machine. If by telephone or by hand delivery, the
notice shall be given at least twenty-four (24) hours prior to the time set for
the meeting. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in the
notice of such meeting, except for amendments to these By-laws, as provided
under Section 8.1. A meeting may be held at any time without notice if all the
directors are present or if those not present waive notice of the meeting in
accordance with Section 6.4 of these By-laws.
Section 3.6. Action by Consent of Board of Directors. Any action required
or permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if all members of the Board of
Directors or committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board of
Directors or committee.
Section 3.7. Conference Telephone Meetings. Members of the Board
of
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Directors, or any committee thereof, may participate in a meeting of the
Board of Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
Section 3.8. Quorum. Subject to Section 3.9, a number of directors equal
to at least a majority of the Whole Board shall constitute a quorum for the
transaction of business. If at any meeting of the Board of Directors there shall
be less than a quorum present, a majority of the directors present may adjourn
the meeting from time to time without further notice. The act of the majority of
the directors present at a meeting at which a quorum is present shall be the act
of the Board of Directors. The directors present at a duly organized meeting may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough directors to leave less than a quorum.
Section 3.9. Vacancies. Subject to applicable law and the rights of the
holders of any series of Preferred Stock with respect to such series of
Preferred Stock, and unless the Board of Directors otherwise determines,
vacancies resulting from death, resignation, retirement, disqualification,
removal from office or other cause, and newly created directorships resulting
from any increase in the authorized number of directors, may be filled only by
the affirmative vote of a majority of the remaining directors, though less than
a quorum of the Board of Directors, and directors so chosen shall hold office
for a term expiring at the annual meeting of stockholders at which the term of
office of the class to which they have been elected expires and until such
director's successor shall have been duly elected and qualified. No decrease in
the number of authorized directors constituting the Whole Board shall shorten
the term of any incumbent director.
Section 3.10. Committees. The Board of Directors may establish one or more
committees. Each Committee shall consist of two or more directors of the
Corporation designated by the Board of Directors. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. Any
such committee may to the extent permitted by law exercise such powers and shall
have such responsibilities as shall be specified in the designating resolution.
In the absence or disqualification of any member of such committee or
committees, the member or members thereof present at any meeting and not
disqualified from voting, whether or not constituting a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in the
place of any such absent or disqualified member. Each committee shall keep
written minutes of its proceedings and shall report such proceedings to the
Board of Directors when
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requested.
A majority of any committee may determine its action and fix the time and
place of its meetings, unless the Board of Directors shall otherwise provide.
Notice of such meetings shall be given to each member of the committee in the
manner provided for in Section 3.5 of these By-laws. The Board of Directors
shall have the power at any time to fill vacancies in, to change the membership
of, or to dissolve any such committee. Nothing herein shall be deemed to prevent
the Board of Directors from appointing one or more committees consisting in
whole or in part of persons who are not directors of the Corporation; provided,
however, that no such committee shall have or may exercise any authority of the
Board of Directors.
The term of office of a committee member shall be as provided in the
resolution of the Board designating him or her but shall not exceed his or her
term as a director. If prior to the end of his term, a committee member should
cease to be a director, he or she shall cease to be a committee member. Any
member of a committee may resign at any time by giving written notice to the
Board of Directors, the Chairman, the President or the Secretary. Such
resignation shall take effect as provided in Section 6.6 of these By-laws in the
case of resignations by directors. Any member of a committee may be removed from
such committee, either with or without cause, at any time, by resolution adopted
by a majority of the whole Board. Any vacancy in a committee shall be filled by
the Board of Directors in the manner prescribed by these By-laws for the
original designation of the members of such committee.
Section 3.11. Committee on Officers' Compensation. Pursuant to Section
3.10 of these By-laws, the Board of Directors shall designate a committee to
evaluate the performance of, and to recommend the appropriate level of
compensation for, officers of the Corporation. Such committee shall have access
to an advisor not otherwise serving the Corporation. Each member of such
committee shall be an "independent director," as that term is defined in the
following sentence. For purposes of this Section 3.11, an "independent director"
shall mean a person who (a) has not been employed by the Corporation within the
past five years; (b) is not, and is not affiliated with, a firm that is an
advisor or consultant to the Corporation; (c) is not affiliated with any
customer or supplier of the Corporation whose purchases from and/or sales to the
Corporation exceed 3% of the sales and revenues of such customer or supplier for
its most recently completed fiscal year; (d) has no personal services contract
with the Corporation; (e) is not affiliated with a tax-exempt entity, not
otherwise affiliated with the Corporation, that receives contributions from the
Corporation that exceed 3% of such entity's gross contributions for its most
recently completed fiscal year; and (f) is not a member of the "immediate
family" (as defined in Item 404(a) of Securities and Exchange
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Commission Regulation S-K) of any person described in clauses (a) through
(e).
Section 3.12. Removal. Subject to the rights of the holders of any series
of Preferred Stock with respect to such series of Preferred Stock, any director,
or the entire Board of Directors, may be removed from office at any time by the
stockholders, but only for cause.
Section 3.13. Records. The Board of Directors shall cause to be kept a
record containing the minutes of the proceedings of the meetings of the Board of
Directors and of the stockholders, appropriate stock books and registers and
such books of records and accounts as may be necessary for the proper conduct of
the business of the Corporation.
ARTICLE IV
OFFICERS
Section 4.1. Elected Officers. The elected officers of the Corporation
shall be a Chairman, a President, a Secretary, a Treasurer, and such other
officers (including, without limitation, a Chief Financial Officer) as the Board
of Directors may deem proper from time to time. The Chairman shall be chosen
from among the directors. Each officer elected by the Board of Directors shall
have such powers and duties as generally pertain to his or her respective
office, subject to the specific provisions of this ARTICLE IV. Such officers
shall also have such powers and duties as may be conferred from time to time by
the Board of Directors. The Board of Directors may from time to time elect, or
the Chairman or President may appoint, such assistant officers (including one or
more Assistant Vice Presidents, Assistant Secretaries, Assistant Treasurers and
Assistant Controllers) as may be necessary or desirable for the conduct of the
business of the Corporation. Such assistant officers shall have such duties and
shall hold their offices for such terms as shall be provided in these By-laws or
as may be prescribed by the Board of Directors or by the Chairman or President,
as the case may be.
Section 4.2. Election and Term of Office. The elected officers of the
Corporation shall be elected annually by the Board of Directors at the regular
meeting of the Board of Directors held after the annual meeting of the
stockholders or at any other time as the Board of Directors may deem proper.
Each officer shall hold office until his successor shall have been duly elected
and shall have qualified or until his death or until he shall resign, but any
officer may be removed from office at any time by the affirmative vote of a
majority of the Whole Board or, except in the case of an officer elected by the
Board of Directors, by the Chairman or President.
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Such removal shall be without prejudice to the contractual rights, if any,
of the person so removed.
Section 4.3. Chairman. The Chairman shall preside at all meetings of the
stockholders and of the Board of Directors and shall be the Chief Executive
Officer of the Company. The Chairman shall be responsible for the general
management of the affairs of the Corporation and shall perform all duties
incidental to his office which may be required by law and all such other duties
as are properly required of him by the Board of Directors. He shall make reports
to the Board of Directors and the stockholders, and shall see that all orders
and resolutions of the Board of Directors and of any committee thereof are
carried into effect. The Chairman may also serve as President, if so elected by
the Board of Directors.
Section 4.4. President. The President shall act in a general executive
capacity and shall assist the Chairman in the administration and operation of
the Corporation's business and the general supervision of its policies and
affairs. In the absence of or the inability to act of the Chairman, the
President shall perform all duties of the Chairman and preside at all meetings
of stockholders and of the Board of Directors.
Section 4.5. Vice Presidents. Each Vice President shall have such
powers and shall perform such duties as shall be assigned to him by the
Board of Directors.
Section 4.6. Chief Financial Officer. The Chief Financial Officer (if any)
shall be a Vice President and act in an executive financial capacity. He shall
assist the Chairman and the President in the general supervision of the
Corporation's financial policies and affairs.
Section 4.7. Treasurer. The Treasurer shall exercise general supervision
over the receipt, custody and disbursement of corporate funds. The Treasurer
shall cause the funds of the Corporation to be deposited in such banks as may be
authorized by the Board of Directors, or in such banks as may be designated as
depositaries in the manner provided by resolution of the Board of Directors. He
shall have such further powers and duties and shall be subject to such
directions as may be granted or imposed upon him from time to time by the Board
of Directors, the Chairman or the President.
Section 4.8. Secretary. The Secretary shall keep or cause to be kept in
one or more books provided for that purpose, the minutes of all meetings of the
Board of Directors, the committees of the Board of Directors and the
stockholders; he shall see that all notices are duly given in accordance with
the provisions of these By-laws and as required by law; he shall be custodian of
the records and the seal of
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the Corporation and affix and attest the seal to all stock certificates of
the Corporation (unless the seal of the Corporation on such certificates shall
be a facsimile, as hereinafter provided) and affix and attest the seal to all
other documents to be executed on behalf of the Corporation under its seal; and
he shall see that the books, reports, statements, certificates and other
documents and records required by law to be kept and filed are properly kept and
filed; and in general, he shall perform all the duties incident to the office of
Secretary and such other duties as from time to time may be assigned to him by
the Board of Directors, the Chairman or the President.
Section 4.9. Controller. The Controller shall have general control, charge
and supervision of the accounts of the Corporation. He shall see that proper
accounts are maintained and that all accounts are properly credited from time to
time. He shall prepare or cause to be prepared the financial statements of the
Corporation.
Section 4.10. Removal. Any officer elected by the Board of Directors may
be removed by the affirmative vote of a majority of the Whole Board whenever, in
their judgment, the best interests of the Corporation would be served thereby.
Any assistant officer appointed by the Chairman or the President may be removed
by him whenever, in his judgment, the best interests of the Corporation would be
served thereby. No elected officer shall have any contractual rights against the
Corporation for compensation by virtue of such election beyond the date of the
election of his successor, his death, his resignation or his removal, whichever
event shall first occur, except as otherwise provided in an employment contract
or under an employee deferred compensation plan.
Section 4.11. Vacancies. A newly created elected office and a vacancy in
any elected office because of death, resignation, or removal may be filled by
the Board of Directors for the unexpired portion of the term at any meeting of
the Board of Directors.
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ARTICLE V
STOCK CERTIFICATES AND TRANSFERS
Section 5.1. Stock Certificates and Transfers. The interest of each
stockholder of the Corporation shall be evidenced by certificates for shares of
stock in such form as the appropriate officers of the Corporation may from time
to time prescribe. The shares of the stock of the Corporation shall be
transferred on the books of the Corporation by the holder thereof in person or
by his attorney, upon surrender for cancellation of certificates for at least
the same number of shares, with an assignment and power of transfer endorsed
thereon or attached thereto, duly executed, with such proof of the authenticity
of the signature as the Corporation or its agents may reasonably require.
The certificates of stock shall be signed, countersigned and registered in
such manner as the Board of Directors may by resolution prescribe, which
resolution may permit all or any of the signatures on such certificates to be in
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate has ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 5.2. Lost, Stolen or Destroyed Certificates. No certificate for
shares of stock in the Corporation shall be issued in place of any certificate
alleged to have been lost, destroyed or stolen, except on production of such
evidence of such loss, destruction or theft and on delivery to the Corporation
of a bond of indemnity in such amount, upon such terms and secured by such
surety, as the Board of Directors or any financial officer may in its or his
discretion require.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.1. Fiscal Year. The fiscal year of the Corporation
shall begin on the first day of January and end on the thirty-first day
of December of each year.
Section 6.2. Dividends. The Board of Directors may from time to time
declare, and the Corporation may pay, dividends on its outstanding shares in the
manner and upon the terms and conditions provided by law and the Certificate of
Incorporation.
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Section 6.3. Seal. The corporate seal shall have enscribed
thereon the words "Corporate Seal," the year of incorporation and around
the margin thereof the words "W. R. Grace & Co."
Section 6.4. Waiver of Notice. Whenever any notice is required to be given
to any stockholder or director of the Corporation under the provisions of the
General Corporation Law of the State of Delaware (the "GCL") or these By-laws, a
waiver thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice. The attendance of any stockholder at a
meeting in person or by proxy, without protesting at the beginning of the
meeting the lack of notice of such meeting, shall constitute a waiver of notice
of such stockholder. Neither the business to be transacted at, nor the purpose
of, any annual or special meeting of the stockholders or the Board of Directors
or committee thereof need be specified in any waiver of notice of such meeting.
Section 6.5. Audits. The accounts, books and records of the Corporation
shall be audited upon the conclusion of each fiscal year by an independent
certified public accountant selected by the Board of Directors, and it shall be
the duty of the Board of Directors to cause such audit to be done annually.
Section 6.6. Resignations. Any director or any officer or assistant
officer, whether elected or appointed, may resign at any time by giving written
notice of such resignation to the Chairman, the President, or the Secretary, and
such resignation shall be deemed to be effective as of the close of business on
the date said notice is received by the Chairman, the President, or the
Secretary, or at such later time as is specified therein. No formal action shall
be required of the Board of Directors or the stockholders to make any such
resignation effective.
Section 6.7. Indemnification and Insurance. (A) Each person who was or is
made a party or is threatened to be made a party to or is involved in any
action, suit, or proceeding, whether civil, criminal, administrative or
investigative (hereinafter, a "proceeding"), by reason of the fact that he or
she or a person of whom he or she is the legal representative is or was a
director or officer of the Corporation or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation
or of a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans maintained or sponsored by the
Corporation, whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the GCL as the same exists or may hereafter be amended (but, in
the case of any
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such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law permitted
the Corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith, and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that except as provided in
paragraph (C) of this Section 6.7, the Corporation shall indemnify any such
person seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors. The right to indemnification conferred in
this Section 6.7 shall be a contract right and shall include the right to be
paid by the Corporation the expenses incurred in defending any such proceeding
in advance of its final disposition, such advances to be paid by the Corporation
within 20 days after the receipt by the Corporation of a statement or statements
from the claimant requesting such advance or advances from time to time;
provided, however, that if the GCL requires, the payment of such expenses
incurred by a director or officer in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer, including, without limitation, service
to an employee benefit plan) in advance of the final disposition of a
proceeding, shall be made only upon delivery to the Corporation of an
undertaking by or on behalf of such director or officer, to repay all amounts so
advanced if it shall ultimately be determined that such director or officer is
not entitled to be indemnified under this Section 6.7 or otherwise.
(B) To obtain indemnification under this Section 6.7, a claimant shall
submit to the Corporation a written request, including therein or therewith such
documentation and information as is reasonably available to the claimant and is
reasonably necessary to determine whether and to what extent the claimant is
entitled to indemnification. Upon written request by a claimant for
indemnification pursuant to the first sentence of this paragraph (B), a
determination, if required by applicable law, with respect to the claimant's
entitlement thereto shall be made as follows: (1) if requested by the claimant,
by Independent Counsel (as hereinafter defined), or (2) if no request is made by
the claimant for a determination by Independent Counsel, (i) by the Board of
Directors by a majority vote of a quorum consisting of Disinterested Directors
(as hereinafter defined), or (ii) if a quorum of the Board of Directors
consisting of Disinterested Directors is not obtainable or, even if obtainable,
such quorum of Disinterested Directors so directs, by Independent Counsel in a
written opinion to the Board of Directors, a copy of which shall be delivered to
the claimant, or (iii) if a quorum of Disinterested Directors so directs, by the
stockholders of the Corporation. In the event the determination of
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entitlement to indemnification is to be made by Independent Counsel at the
request of the claimant, the Independent Counsel shall be selected by the Board
of Directors unless there shall have occurred within two years prior to the date
of the commencement of the action, suit or proceeding for which indemnification
is claimed a "Change of Control" (as defined below) in which case the
Independent Counsel shall be selected by the claimant unless the claimant shall
request that such selection be made by the Board of Directors. If it is so
determined that the claimant is entitled to indemnification, payment to the
claimant shall be made within 10 days after such determination.
(C) If a claim under paragraph (A) of this Section 6.7 is not paid in full
by the Corporation within 30 days after a written claim pursuant to paragraph
(B) of this Section 6.7 has been received by the Corporation, the claimant may
at any time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim and, if successful in whole or in part, the claimant shall
be entitled to be paid also the expense of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the GCL for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, Independent Counsel or stockholders) to have
made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he or she
has met the applicable standard of conduct set forth in the GCL, nor an actual
determination by the Corporation (including its Board of Directors, Independent
Counsel or stockholders) that the claimant has not met such applicable standard
of conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
(D) If a determination shall have been made pursuant to paragraph (B) of
this Section 6.7 that the claimant is entitled to indemnification, the
Corporation shall be bound by such determination in any judicial proceeding
commenced pursuant to paragraph (C) of this Section 6.7.
(E) The Corporation shall be precluded from asserting in any judicial
proceeding commenced pursuant to paragraph (C) of this Section 6.7 that the
procedures and presumptions of this Section 6.7 are not valid, binding and
enforceable and shall stipulate in such proceeding that the Corporation is bound
by all the provisions of this Section 6.7.
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(F) The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
Section 6.7 shall not be exclusive of any other right which any person may have
or hereafter acquire under any statute, provision of the Certificate of
Incorporation, these By-laws, agreement, vote of stockholders or Disinterested
Directors or otherwise. No repeal or modification of this Section 6.7 shall in
any way diminish or adversely affect the rights of any director, officer,
employee or agent of the Corporation hereunder in respect of any occurrence or
matter arising prior to any such repeal or modification.
(G) The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the GCL. To the extent that the Corporation maintains any policy or
policies providing such insurance, each such director or officer, and each such
agent or employee to which rights to indemnification have been granted as
provided in paragraph (H) of this Section 6.7, shall be covered by such policy
or policies in accordance with its or their terms to the maximum extent of the
coverage thereunder for any such director, officer, employee or agent.
(H) The Corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification, and rights to be paid by
the Corporation the expenses incurred in defending any proceeding in advance of
its final disposition, to any employee or agent of the Corporation to the
fullest extent of the provisions of this Section 6.7 with respect to the
indemnification and advancement of expenses of directors and officers of the
Corporation.
(I) If any provision or provisions of this Section 6.7 shall be held to be
invalid, illegal or unenforceable for any reason whatsoever: (1) the validity,
legality and enforceability of the remaining provisions of this Section 6.7
(including, without limitation, each portion of any paragraph of this By-law
containing any such provision held to be invalid, illegal or unenforceable, that
is not itself held to be invalid, illegal or unenforceable) shall not in any way
be affected or impaired thereby; and (2) to the fullest extent possible, the
provisions of this Section 6.7 (including, without limitation, each such portion
of any paragraph of this By-law containing any such provision held to be
invalid, illegal or unenforceable) shall be construed so as to give effect to
the intent manifested by the provision held invalid, illegal or unenforceable.
(J) For purposes of this Section 6.7:
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(1) "Disinterested Director" means a director of the Corporation who
is not and was not a party to the matter in respect of which
indemnification is sought by the claimant.
(2) "Independent Counsel" means a law firm, a member of a law firm,
or an independent practitioner, that is experienced in matters of
corporation law and shall include any person who, under the applicable
standards of professional conduct then prevailing, would not have a
conflict of interest in representing either the Corporation or the
claimant in an action to determine the claimant's rights under this
Section 6.7.
(3) "Change of Control" has the meaning given such term in the
Corporation's 1998 Stock Incentive Plan, as the same may be amended or
superseded from time to time.
(K) Any notice, request or other communication required or permitted to be
given to the Corporation under this Section 6.7 shall be in writing and either
delivered in person or sent by telecopy, telex, telegram, overnight mail or
courier service, or certified or registered mail, postage prepaid, return
receipt requested, to the Secretary of the Corporation and shall be effective
only upon receipt by the Secretary.
ARTICLE VII
CONTRACTS, PROXIES, ETC.
Section 7.1. Contracts. Except as otherwise required by law, the
Certificate of Incorporation or these By-laws, any contracts or other
instruments may be executed and delivered in the name and on the behalf of the
Corporation by such officer or officers of the Corporation as the Board of
Directors may from time to time direct. Such authority may be general or
confined to specific instances as the Board of Directors may determine. The
Chairman, the President or any Vice President may execute bonds, contracts,
deeds, leases and other instruments to be made or executed for or on behalf of
the Corporation. Subject to any restrictions imposed by the Board of Directors
or the Chairman, the President or any Vice President of the Corporation may
delegate contractual powers to others under his jurisdiction, it being
understood, however, that any such delegation of power shall not relieve such
officer of responsibility with respect to the exercise of such delegated power.
Section 7.2. Proxies. Unless otherwise provided by resolution
adopted by the Board of Directors, the Chairman, the President or any
Vice President may from
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time to time appoint an attorney or attorneys or agent or agents of the
Corporation, in the name and on behalf of the Corporation, to cast the votes
which the Corporation may be entitled to cast as the holder of stock or other
securities in any other corporation, any of whose stock or other securities may
be held by the Corporation, at meetings of the holders of the stock or other
securities of such other corporation, or to consent in writing, in the name of
the Corporation as such holder, to any action by such other corporation, and may
instruct the person or persons so appointed as to the manner of casting such
votes or giving such consent, and may execute or cause to be executed in the
name and on behalf of the Corporation and under its corporate seal or otherwise,
all such written proxies or other instruments as he may deem necessary or proper
in the premises.
ARTICLE VIII
AMENDMENTS
Section 8.1. Amendments. These By-laws may be altered, amended, or
repealed at any meeting of the Board of Directors or of the stockholders,
provided notice of the proposed change was given in the notice of the meeting
and, in the case of a meeting of the Board of Directors, in a notice given not
less than two days prior to the meeting; provided, however, that, in the case of
amendments by stockholders, notwithstanding any other provisions of these
By-laws or any provision of law which might otherwise permit a lesser vote or no
vote, but in addition to any affirmative vote of the holders of any particular
class or series of the capital stock of the Corporation required by law, the
Certificate of Incorporation or these By-laws, the affirmative vote of the
holders of at least 80 percent of the voting power of all the then outstanding
shares of the Voting Stock, voting together as a single class, shall be required
to alter, amend or repeal any provision of these By-laws.
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Exhibit 4.1
GRACE SPECIALTY CHEMICALS, INC.
(to be renamed W. R. GRACE & CO.)
AND
THE CHASE MANHATTAN BANK, AS
RIGHTS AGENT
* * *
RIGHTS AGREEMENT
DATED AS OF March 31, 1998
<PAGE>
TABLE OF CONTENTS
PAGE
Section 1. Certain Definitions....................................... 1
Section 2. Appointment of Rights Agent............................... 4
Section 3. Issue of Right Certificates............................... 4
Section 4. Form of Right Certificates................................ 5
Section 5. Countersignature and Registration......................... 5
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen
Right Certificates..................................... 6
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights................................................. 7
Section 8. Cancellation and Destruction of Right Certificates........ 8
Section 9. Availability of Preferred Shares.......................... 8
Section 10. Preferred Shares Record Date.............................. 8
Section 11. Adjustment of Purchase Price, Number of Shares or Number
of Rights.............................................. 9
Section 12. Certificate of Adjusted Purchase Price or Number of
Shares................................................. 15
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power.......................................... 15
Section 14. Fractional Rights and Fractional Shares................... 16
Section 15. Rights of Action.......................................... 17
Section 16. Agreement of Right Holders................................ 17
Section 17. Right Certificate Holder Not Deemed a Stockholder......... 18
Section 18. Concerning the Rights Agent............................... 18
Section 19. Merger or Consolidation or Change of Name of Rights Agent 18
Section 20. Duties of Rights Agent.................................... 19
Section 21. Change of Rights Agent.................................... 21
Section 22. Issuance of New Right Certificates........................ 22
Section 23. Redemption................................................ 22
Section 24. Exchange.................................................. 22
Section 25. Notice of Certain Events.................................. 24
Section 26. Notices................................................... 24
Section 27. Supplements and Amendments................................ 25
Section 28. Successors................................................ 25
Section 29. Benefits of This Agreement................................ 25
Section 30. Severability.............................................. 26
Section 31. Governing Law............................................. 26
Section 32. Counterparts.............................................. 26
Section 33. Descriptive Headings...................................... 26
Exhibit A Form of Right Certificate................................. A-1
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<PAGE>
AGREEMENT, dated as of March 31,1998, between Grace Specialty
Chemicals, Inc., a Delaware corporation which, following the Spin-off (as
hereinafter defined), will be renamed W. R. Grace & Co. (the "Company"), and The
Chase Manhattan Bank (the "Rights Agent").
WHEREAS, the Board of Directors of the Company has authorized and
declared that a dividend of one preferred share purchase right (a "Right") be
paid in respect of each Common Share (as hereinafter defined) of the Company
outstanding at the moment of consummation of the Spin-off (such moment, the
"Record Date") to the holder of record thereof at such moment, each Right
representing the right to purchase one hundredth of a Preferred Share (as
hereinafter defined), upon the terms and subject to the conditions herein set
forth, and has further authorized and directed the issuance of one Right with
respect to each Common Share that shall become outstanding between the Record
Date and the earliest of the Distribution Date, the Redemption Date and the
Final Expiration Date (as such terms are hereinafter defined).
ACCORDINGLY, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the
following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates and
Associates (as such terms are hereinafter defined) of such Person, shall
be the Beneficial Owner (as such term is hereinafter defined) of 20% or
more of the Common Shares of the Company then outstanding, but shall not
include the Company, any Subsidiary (as such term is hereinafter defined)
of the Company, any employee benefit plan of the Company or any Subsidiary
of the Company, or any entity holding Common Shares for or pursuant to the
terms of any such plan.
Notwithstanding the foregoing, no Person shall become an "Acquiring
Person" as the result of an acquisition of Common Shares by the Company
which, by reducing the number of shares outstanding, increases the
proportionate number of shares beneficially owned by such Person to 20% or
more of the Common Shares of the Company then outstanding; provided,
however, that if a Person shall become the Beneficial Owner of 20% or more
of the Common Shares of the Company then outstanding by reason of share
purchases by the Company and shall, after such share purchases by the
Company, become the Beneficial Owner of any additional Common Shares of
the Company, then such Person shall be deemed to be an "Acquiring Person."
Notwithstanding the foregoing, if the Board of Directors of the Company
determines in good faith that a Person who would otherwise be an
"Acquiring Person," as defined pursuant to the foregoing provisions of
this paragraph (a), has become such inadvertently, and such Person divests
as promptly as practicable a sufficient number of Common Shares so that
such Person would no longer be an "Acquiring Person," as defined pursuant
to the foregoing provisions of this paragraph (a), then such Person shall
not be deemed to be an "Acquiring Person" for any purposes of this
Agreement.
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(b) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), as in effect on the date of this Agreement.
(c) A Person shall be deemed the "Beneficial Owner" of and shall be
deemed to "beneficially own" any securities:
(i) which such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person's Affiliates or
Associates has (A) the right to acquire (whether such right is
exercisable immediately or only after the passage of time) pursuant
to any agreement, arrangement or understanding (other than customary
agreements with and between underwriters and selling group members
with respect to a bona fide public offering of securities), or upon
the exercise of conversion rights, exchange rights, rights (other
than these Rights), warrants or options, or otherwise; provided,
however, that a Person shall not be deemed the Beneficial Owner of,
or to beneficially own, securities tendered pursuant to a tender or
exchange offer made by or on behalf of such Person or any of such
Person's Affiliates or Associates until such tendered securities are
accepted for purchase or exchange; or (B) the right to vote pursuant
to any agreement, arrangement or understanding; provided, however,
that a Person shall not be deemed the Beneficial Owner of, or to
beneficially own, any security if the agreement, arrangement or
understanding to vote such security (1) arises solely from a
revocable proxy or consent given to such Person in response to a
public proxy or consent solicitation made pursuant to, and in
accordance with, the applicable rules and regulations promulgated
under the Exchange Act and (2) is not also then reportable on
Schedule 13D under the Exchange Act (or any comparable or successor
report); or
(iii) which are beneficially owned, directly or indirectly,
by any other Person with which such Person or any of such Person's
Affiliates or Associates has any agreement, arrangement or
understanding (other than customary agreements with and between
underwriters and selling group members with respect to a bona fide
public offering of securities) for the purpose of acquiring,
holding, voting (except to the extent contemplated by the proviso to
Section 1(c)(ii)(B)) or disposing of any securities of the Company.
Notwithstanding anything in this definition of Beneficial Ownership
to the contrary, the phrase "then outstanding," when used with reference
to a Person's Beneficial Ownership of securities of the Company, shall
mean the number of such securities then issued and outstanding together
with the number of such securities not then actually issued and
outstanding which such Person would be deemed to own beneficially
hereunder.
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(d) "Business Day" shall mean any day other than a Saturday, a
Sunday, or a day on which banking or trust institutions in New York are
authorized or obligated by law or executive order to close.
(e) "Close of business" on any given date shall mean 5:00 P.M., New
York time, on such date; provided, however, that if such date is not a
Business Day it shall mean 5:00 P.M., New York time, on the next
succeeding Business Day.
(f) "Common Shares" when used with reference to the Company shall
mean the shares of common stock, par value $.01 per share, of the Company.
"Common Shares" when used with reference to any Person other than the
Company shall mean the capital stock (or equity interest) with the
greatest voting power of such other Person or, if such other Person is a
Subsidiary of another Person, the Person or Persons which ultimately
control such first-mentioned Person.
(g) "Distribution Date" shall have the meaning set forth in Section
3 hereof.
(h) "Final Expiration Date" shall have the meaning set forth in
Section 7 hereof.
(i) "Grace" shall mean W. R. Grace & Co., a Delaware
corporation, which, in connection with the Spin-off, is to be renamed
"Sealed Air Corporation."
(j) "Grace Common Shares" shall mean the shares of common stock,
par value $.01 per share, of Grace.
(k) "Person" shall mean any individual, firm, corporation or other
entity, and shall include any successor (by merger or otherwise) of such
entity.
(l) "Preferred Shares" shall mean shares of Series A Junior
Participating Preferred Stock, par value $.01 per share, of the Company
having the rights and preferences set forth in the Amended and Restated
Certificate of Incorporation of the Company.
(m) "Redemption Date" shall have the meaning set forth in Section
7 hereof.
(n) "Shares Acquisition Date" shall mean the first date of public
announcement by the Company or an Acquiring Person that an Acquiring
Person has become such.
(o) "Spin-off" shall mean the distribution by Grace of one Common
Share of the Company in respect of each Grace Common Share.
(p) "Subsidiary" of any Person shall mean any corporation or other
entity of which a majority of the voting power of the voting equity
securities or equity interest is owned, directly or indirectly, by such
Person.
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
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hereof, and the Rights Agent hereby accepts such appointment. The Company may
from time to time appoint such co-Rights Agents as it may deem necessary or
desirable.
Section 3. Issue of Rights Certificates. (a) Until the earlier of
(i) the tenth day after the Shares Acquisition Date or (ii) the tenth business
day (or such later date as may be determined by action of the Board of Directors
of the Company prior to such time as any Person becomes an Acquiring Person)
after the date of the commencement by any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or of any
Subsidiary of the Company or any entity holding Common Shares for or pursuant to
the terms of any such plan) of, or after the date of the first public
announcement of the intention of any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or of any
Subsidiary of the Company or any entity holding Common Shares for or pursuant to
the terms of any such plan) to commence, a tender or exchange offer the
consummation of which would result in any Person becoming the Beneficial Owner
of Common Shares aggregating 20% or more of the then outstanding Common Shares
(including any such date which is after the date of this Agreement and prior to
the issuance of the Rights; the earlier of such dates being herein referred to
as the "Distribution Date"), (x) the Rights will be evidenced (subject to the
provisions of Section 3(b) hereof) by the certificates for Common Shares
registered in the names of the holders thereof (which certificates shall also be
deemed to be Right Certificates) and not by separate Right Certificates, and (y)
the right to receive Right Certificates will be transferable only in connection
with the transfer of Common Shares. As soon as practicable after the
Distribution Date, the Company will promptly notify the Rights Agent thereof,
and the Company will prepare and execute, the Rights Agent will countersign, and
the Company will send or cause to be sent (and the Rights Agent will, if
requested and presented with a list of the holders of record of the Common
Shares by the transfer agent of the Common Shares, send) by first-class,
insured, postage-prepaid mail, to each record holder of Common Shares as of the
close of business on the Distribution Date, at the address of such holder shown
on the records of the Company, a right certificate, in substantially the form of
Exhibit A hereto (a "Right Certificate"), evidencing one Right for each Common
Share so held. As of the Distribution Date, the Rights will be evidenced solely
by such Right Certificates.
(b) Until the earliest of the Distribution Date, the Redemption Date
or the Final Expiration Date, certificates representing Common Shares of the
Company shall have impressed on, printed on, written on or otherwise affixed to
them the following legend:
This certificate also evidences and entitles the holder hereof to
certain rights, as set forth in a Rights Agreement (the "Rights
Agreement") between W. R. Grace & Co. (the "Company"), and The
Chase Manhattan Bank (the "Rights Agent"), the terms of which are
hereby incorporated herein by reference and a copy of which is on
file at the principal offices of the Company. Under certain
circumstances, as set forth in the Rights Agreement, such Rights
will be evidenced by separate certificates and will no longer be
evidenced by this certificate. The Company will mail to the
holder of this certificate a copy of the Rights Agreement, as in
effect on the date of mailing, without charge
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promptly after receipt of a written request therefor. Under
certain circumstances set forth in the Rights Agreement, rights
beneficially owned by an Acquiring Person or any Affiliates or
Associates thereof (as such terms are defined in the Rights
Agreement), or certain transferees thereof, may become null and
void.
With respect to such certificates containing the foregoing legend,
until the Distribution Date, the Rights associated with the Common Shares
represented by such certificates shall be evidenced by such certificates alone,
and the surrender for transfer of any such certificate shall also constitute the
transfer of the Rights associated with the Common Shares represented thereby. In
the event that the Company purchases or acquires any Common Shares after the
Record Date but prior to the Distribution Date, any Rights associated with such
Common Shares shall be deemed cancelled and retired so that the Company shall
not be entitled to exercise any Rights associated with the Common Shares which
are no longer outstanding.
Section 4. Form of Right Certificates. The Right Certificates (and
the forms of election to purchase Preferred Shares and of assignment to be
printed on the reverse thereof) shall be substantially the same as Exhibit A
hereto and may have such marks of identification or designation and such
legends, summaries or endorsements printed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any applicable law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Rights may from time to time be listed, or to conform to
usage; provided, however, that such marks, legends, summaries or endorsements
may not affect the rights or responsibilities of the Rights Agent unless the
Rights Agent consents in writing thereto. Subject to the provisions of Section
22 hereof, the Right Certificates shall entitle the holders thereof to purchase
such number of hundredths of a Preferred Share as shall be set forth therein at
the price per hundredth of a Preferred Share set forth therein (the "Purchase
Price"), but the number of such hundredths of a Preferred Share and the Purchase
Price shall be subject to adjustment as provided herein.
Section 5. Countersignature and Registration. The Right Certificates
shall be executed on behalf of the Company by its Chairman of the Board, its
Chief Executive Officer, its President, any of its Vice Presidents, or its
Treasurer, either manually or by facsimile signature, shall have affixed thereto
the Company's seal or a facsimile thereof, and shall be attested by the
Secretary or an Assistant Secretary of the Company, either manually or by
facsimile signature. The Right Certificates shall be manually countersigned by
the Rights Agent and shall not be valid for any purpose unless countersigned. In
case any officer of the Company who shall have signed any of the Right
Certificates shall cease to be such officer of the Company before
countersignature by the Rights Agent and issuance and delivery by the Company,
such Right Certificates, nevertheless, may be countersigned by the Rights Agent
and issued and delivered by the Company with the same force and effect as though
the person who signed such Right Certificates had not ceased to be such officer
of the Company; and any Right Certificate may be signed on behalf of the Company
by any person who, at the actual date of the execution of such Right
Certificate, shall be a proper officer of the Company to sign such Right
Certificate, although at the date of the execution of this Rights Agreement any
such person was not such an officer.
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Following the Distribution Date and receipt by the Rights Agent of
the list of record holders of Common Shares referred to in Section 3(a) hereof,
the Rights Agent will keep or cause to be kept, at the office designated in
Section 26 hereof (the "Designated Office"), books for registration and transfer
of the Right Certificates issued hereunder. Such books shall show the names and
addresses of the respective holders of the Right Certificates, the number of
Rights evidenced on its face by each of the Right Certificates and the date of
each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates. Subject
to the provisions of Sections 14 and 24 hereof, at any time after the close of
business on the Distribution Date, and at or prior to the close of business on
the earlier of the Redemption Date or the Final Expiration Date, any Right
Certificate or Right Certificates (other than Right Certificates representing
Rights that have become null and void pursuant to Section 11(a)(ii) hereof or
that have been exchanged pursuant to Section 24 hereof) may be transferred,
split up, combined or exchanged for another Right Certificate or Right
Certificates, entitling the registered holder to purchase a like number of
hundredths of a Preferred Share as the Right Certificate or Right Certificates
surrendered then entitled such holder to purchase. Any registered holder
desiring to transfer, split up, combine or exchange any Right Certificate or
Right Certificates shall make such request in writing delivered to the Rights
Agent, and shall surrender the Right Certificate or Right Certificates to be
transferred, split up, combined or exchanged at the Designated Office. Thereupon
the Rights Agent shall countersign and deliver to the person entitled thereto a
Right Certificate or Right Certificates, as the case may be, as so requested.
The Company may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer, split
up, combination or exchange of Right Certificates. The Rights Agent shall have
no duty or obligation under this Section unless and until it is satisfied that
all such taxes and/or charges have been paid.
Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or mutilation of
a Right Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to them, and, at the Company's request,
reimbursement to the Company and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent and cancellation of
the Right Certificate if mutilated, the Company will make and deliver a new
Right Certificate of like tenor to the Rights Agent for delivery to the
registered holder in lieu of the Right Certificate so lost, stolen, destroyed or
mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights. (a) The registered holder of any Right Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein) in whole or in
part at any time after the Distribution Date upon surrender of the Right
Certificate, with the form of election to purchase on the reverse side thereof
duly and properly executed, to the Rights Agent at the Designated Office,
together with payment of the Purchase Price for each hundredth of a Preferred
Share as to which the Rights are exercised, at or prior to the earliest of (i)
the close of business on March 31, 2008 (the "Final Expiration Date"), (ii) the
time at which the Rights are redeemed as provided in Section 23 hereof (the
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"Redemption Date"), or (iii) the time at which such Rights are exchanged as
provided in Section 24 hereof.
(b) The Purchase Price for each hundredth of a Preferred Share
purchasable pursuant to the exercise of a Right shall initially be $100, and
shall be subject to adjustment from time to time as provided in Section 11 or 13
hereof and shall be payable in lawful money of the U.S. of America in accordance
with paragraph (c) below.
(c) Upon receipt of a Right Certificate representing exercisable
Rights, with the form of election to purchase duly executed, accompanied by
payment of the Purchase Price for the shares to be purchased and an amount equal
to any applicable tax or governmental charge required to be paid by the holder
of such Right Certificate in accordance with Section 9 hereof by certified
check, cashier's check or money order payable to the order of the Company, the
Rights Agent shall thereupon promptly (i) (A) requisition from any transfer
agent of the Preferred Shares certificates for the number of Preferred Shares to
be purchased and the Company hereby irrevocably authorizes its transfer agent to
comply with all such requests, or (B) requisition from the depositary agent
depositary receipts representing such number of hundredths of a Preferred Share
as are to be purchased (in which case certificates for the Preferred Shares
represented by such receipts shall be deposited by the transfer agent with the
depositary agent) and the Company hereby directs the depositary agent to comply
with such request, (ii) when appropriate, requisition from the Company the
amount of cash to be paid in lieu of issuance of fractional shares in accordance
with Section 14 hereof, (iii) 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 Right Certificate, registered in such name or names as may be
designated by such holder and (iv) when appropriate, after receipt, deliver such
cash to or upon the order of the registered holder of such Right Certificate.
(d) In case the registered holder of any Right Certificate shall
exercise less than all the Rights evidenced thereby, a new Right Certificate
evidencing Rights equivalent to the Rights remaining unexercised shall be issued
by the Rights Agent to the registered holder of such Right Certificate or to his
duly authorized assigns, subject to the provisions of Sections 6 and 14 hereof.
Section 8. Cancellation and Destruction of Right Certificates. All
Right Certificates surrendered for the purpose of ates exercise, transfer, split
up, combination or exchange shall, if surrendered to the Company or to any of
its agents, be delivered to the Rights Agent for cancellation or in cancelled
form, or, if surrendered to the Rights Agent, shall be cancelled by it, and no
Right Certificates shall be issued in lieu thereof except as expressly permitted
by any of the provisions of this Rights Agreement. The Company shall deliver to
the Rights Agent for cancellation and retirement, and the Rights Agent shall so
cancel and retire, any other Right Certificate purchased or acquired by the
Company otherwise than upon the exercise thereof. The Rights Agent shall deliver
all cancelled Right Certificates to the Company, or shall, at the written
request of the Company, destroy such cancelled Right Certificates, and in such
case shall deliver a certificate of destruction thereof to the Company.
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Section 9. Availability of Preferred Shares. The Company covenants
and agrees that it will cause to be reserved and kept available out of its
authorized and unissued Preferred Shares or any Preferred Shares held in its
treasury, the number of Preferred Shares that will be sufficient to permit the
exercise in full of all outstanding Rights in accordance with Section 7. The
Company covenants and agrees that it will take all such action as may be
necessary to ensure that all Preferred Shares delivered upon exercise of Rights
shall, at the time of delivery of the certificates for such Preferred Shares
(subject to payment of the Purchase Price), be duly and validly authorized and
issued and fully paid and nonassessable shares.
The Company further covenants and agrees that it will pay when due
and payable any and all federal and state transfer taxes and charges which may
be payable in respect of the issuance or delivery of the Right Certificates or
of any Preferred Shares upon the exercise of Rights. The Company shall not,
however, be required to pay any tax or governmental charge which may be payable
in respect of any transfer or delivery of Right Certificates to a person other
than, or the issuance or delivery of certificates or depositary receipts for the
Preferred Shares in a name other than that of, the registered holder of the
Right Certificate evidencing Rights surrendered for exercise or to issue or to
deliver any certificates or depositary receipts for Preferred Shares upon the
exercise of any Rights until any such tax or governmental charge shall have been
paid (any such tax or governmental charge being payable by the holder of such
Right Certificate at the time of surrender) or until it has been established to
the Company's reasonable satisfaction that no such tax or governmental charge is
due.
Section 10. Preferred Shares Record Date. Each Person in whose name
any certificate for Preferred Shares is issued upon the exercise of Rights shall
for all purposes be deemed to have become the holder of record of the Preferred
Shares represented thereby on, and such certificate shall be dated, the date
upon which the Right Certificate evidencing such Rights was duly surrendered and
payment of the Purchase Price (and any applicable taxes and governmental
charges) was made; provided, however, that if the date of such surrender and
payment is a date upon which the Preferred Shares transfer books of the Company
are closed, such person shall be deemed to have become the record holder of such
shares on, and such certificate shall be dated, the next succeeding Business Day
on which the Preferred Shares transfer books of the Company are open. Prior to
the exercise of the Rights evidenced thereby, the holder of a Right Certificate
shall not be entitled to any rights of a holder of Preferred Shares for which
the Rights shall be exercisable, including, without limitation, the right to
vote, to receive dividends or other distributions or to exercise any preemptive
rights, and shall not be entitled to receive any notice of any proceedings of
the Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number of Shares or Number
of Rights. The Purchase Price, the number of Preferred Shares covered by each
Right and the number of Rights outstanding are subject to adjustment from time
to time as provided in this Section 11.
(a) (i) In the event the Company shall at any time after the Record
Date (A) declare a dividend on the Preferred Shares payable in Preferred Shares,
(B) subdivide the outstanding Preferred Shares, (C) combine the outstanding
Preferred Shares into a smaller number
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of Preferred Shares or (D) issue any shares of its capital stock in a
reclassification of the Preferred Shares (including any such reclassification
in connection with a consolidation or merger in which the Company is the
continuing or surviving corporation), except as otherwise provided in this
Section 11(a), the Purchase Price in effect at the time of the record date for
such dividend or of the effective date of such subdivision, combination or
reclassification, and the number and kind of shares of capital stock 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 which, if such Right had been exercised
immediately prior to such date and at a time when the Preferred Shares transfer
books of the Company were open, he would have owned upon such exercise and been
entitled to receive by virtue of such dividend, subdivision, combination or
reclassification; provided, however, that in no event shall the consideration
to be paid upon the exercise of one Right be less than the aggregate par value
of the shares of capital stock of the Company issuable upon exercise of one
Right.
(ii) Subject to Section 24 of this Agreement, in the event any
Person becomes an Acquiring Person, each holder of a Right shall thereafter have
a right to receive, upon exercise thereof at a price equal to the then current
Purchase Price multiplied by the number of hundredths of a Preferred Share for
which a Right is then exercisable, in accordance with the terms of this
Agreement and in lieu of Preferred Shares, such number of Common Shares of the
Company as shall equal the result obtained by (x) multiplying the then current
Purchase Price by the number of hundredths of a Preferred Share for which a
Right is then exercisable and dividing that product by (y) 50% of the then
current per share market price of the Company's Common Shares (determined
pursuant to Section 11(d) hereof) on the date of the occurrence of such event.
In the event that any Person shall become an Acquiring Person and the Rights
shall then be outstanding, the Company shall not take any action which would
eliminate or diminish the benefits intended to be afforded by the Rights.
From and after the occurrence of such event, any Rights that are or
were acquired or beneficially owned by any Acquiring Person (or any Associate or
Affiliate of such Acquiring Person) shall be null and void and any holder of
such Rights shall thereafter have no right to exercise such Rights under any
provision of this Agreement. No Right Certificate shall be issued pursuant to
Section 3 that represents Rights beneficially owned by an Acquiring Person whose
Rights would be null and void pursuant to the preceding sentence or any
Associate or Affiliate thereof; no Right Certificate shall be issued at any time
upon the transfer of any Rights to an Acquiring Person whose Rights would be
null and void pursuant to the preceding sentence or any Associate or Affiliate
thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and
any Right Certificate delivered to the Rights Agent for transfer to an Acquiring
Person whose Rights would be null and void pursuant to the preceding sentence
shall be cancelled. The Rights Agent shall have no duty or liability under this
paragraph until it has been notified in writing of the identity of any Acquiring
Person.
(iii) In the event that there shall not be sufficient Common Shares
issued but not outstanding or authorized but unissued to permit the exercise in
full of the Rights in accordance with the foregoing subparagraph (ii), the
Company shall take all such action as may be necessary to authorize additional
Common Shares for issuance upon exercise of the Rights. In the event
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the Company shall, after good faith effort, be unable to take all such action
as may be necessary to authorize such additional Common Shares, the Company
shall substitute, for each Common Share that would otherwise be issuable upon
exercise of a Right, a number of Preferred Shares or fraction thereof such that
the current per share market price of one Preferred Share multiplied by such
number or fraction is equal to the current per share market price of one Common
Share as of the date of issuance of such Preferred Shares or fraction thereof.
(b) In case the Company shall fix a record date for the issuance of
rights, options or warrants to all holders of Preferred Shares entitling them
(for a period expiring within 45 calendar days after such record date) to
subscribe for or purchase Preferred Shares (or shares having the same rights,
privileges and preferences as the Preferred Shares ("equivalent preferred
shares")) or securities convertible into Preferred Shares or equivalent
preferred shares at a price per Preferred Share or equivalent preferred share
(or having a conversion price per share, if a security convertible into
Preferred Shares or equivalent preferred shares) less than the then current per
share market price of the Preferred Shares (as defined in Section 11(d)) 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
Preferred Shares outstanding on such record date plus the number of Preferred
Shares which the aggregate offering price of the total number of Preferred
Shares and/or equivalent preferred shares so to be offered (and/or the aggregate
initial conversion price of the convertible securities so to be offered) would
purchase at such current market price and the denominator of which shall be the
number of Preferred Shares outstanding on such record date plus the number of
additional Preferred Shares and/or equivalent preferred shares to be offered for
subscription or purchase (or into which the convertible securities so to be
offered are initially convertible); provided, however, that in no event shall
the consideration to be paid upon the exercise of one Right be less than the
aggregate par value of the shares of capital stock of the Company issuable upon
exercise of one Right. In case such subscription price may be paid in a
consideration part or all of which shall be in a form other than cash, the value
of such consideration shall be as determined in good faith by the Board of
Directors of the Company, whose determination shall be described in a statement
filed with the Rights Agent. Preferred Shares owned by or held for the account
of the Company shall not be deemed outstanding for the purpose of any such
computation. Such adjustment shall be made successively whenever such a record
date is fixed; and in the event that such rights, options or warrants are not so
issued, the Purchase Price shall be adjusted to be the Purchase Price which
would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for the making of a
distribution to all holders of the Preferred Shares (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation) of evidences of indebtedness
or assets (other than a regular quarterly cash dividend or a dividend payable in
Preferred Shares) or subscription rights or warrants (excluding those referred
to in Section 11(b) hereof), the Purchase Price to be in effect after such
record date shall be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the numerator of which
shall be the then current per share market price of the Preferred Shares on such
record date, less the fair market value (as determined in good faith by the
Board
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of Directors of the Company, whose determination shall be described in a
statement filed with the Rights Agent) of the portion of the assets or evidences
of indebtedness so to be distributed or of such subscription rights or warrants
applicable to one Preferred Share and the denominator of which shall be such
current per share market price of the Preferred Shares; provided, however, that
in no event shall the consideration to be paid upon the exercise of one Right be
less than the aggregate par value of the shares of capital stock of the Company
to be issued upon exercise of one Right. Such adjustments shall be made
successively whenever such a record date is fixed; and in the event that such
distribution is not so made, the Purchase Price shall again be adjusted to be
the Purchase Price which would then be in effect if such record date had not
been fixed.
(d) (i) For the purpose of any computation hereunder, the "current
per share market price" of any security (a "Security" for the purpose of this
Section 11(d)(i)) on any date shall be deemed to be the average of the daily
closing prices per share of such Security for the 30 consecutive Trading Days
(as such term is hereinafter defined) immediately prior to, but not including,
such date; provided, however, that in the event that the current per share
market price of the Security is determined during a period following the
announcement by the issuer of such Security of (A) a dividend or distribution on
such Security payable in shares of such Security or securities convertible into
such shares, or (B) any subdivision, combination or reclassification of such
Security and prior to the expiration of 30 Trading Days after, but not
including, 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 per share market price shall be appropriately adjusted to
reflect the current market price per share equivalent of such Security; and
provided, further, that in the event that the current per share market price of
the Common Shares is determined as of a date prior to the expiration of 30
Trading Days following, but not including, the Record Date, the current per
share market price of the Common Shares shall be deemed to be the average of the
daily closing prices per Common Share for the period of Trading Days commencing
with the Record Date and ending immediately prior to such date. The closing
price for each day shall be the last sale price, regular way, or, in case no
such sale takes place on such day, the average of the closing bid and asked
prices, regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on the New York Stock Exchange or, if the Security is not listed or
admitted to trading on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which the Security is listed or
admitted to trading or, if the Security is not listed or admitted to trading on
any national securities exchange, the last quoted price or, if not so quoted,
the average of the high bid and low asked prices in the over-the-counter market,
as reported by the National Association of Securities Dealers, Inc. Automated
Quotations System ("NASDAQ") or such other system then in use, or, if on any
such date the Security is not quoted by any such organization, the average of
the closing bid and asked prices as furnished by a professional market maker
making a market in the Security selected by the Board of Directors of the
Company. The term "Trading Day" shall mean a day on which the principal national
securities exchange on which the Security is listed or admitted to trading is
open for the transaction of business or, if the Security is not listed or
admitted to trading on any national securities exchange, a Business Day.
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(ii) For the purpose of any computation hereunder, the "current per
share market price" of the Preferred Shares shall be determined in accordance
with the method set forth in Section 11(d)(i). If the Preferred Shares are not
publicly traded, the "current per share market price" of the Preferred Shares
shall be conclusively deemed to be the current per share market price of the
Common Shares as determined pursuant to Section 11(d)(i) (appropriately adjusted
to reflect any stock split, stock dividend or similar transaction occurring
after the date hereof), multiplied by one hundred. If neither the Common Shares
nor the Preferred Shares are publicly held or so listed or traded, "current per
share market price" shall mean the fair value per share as determined in good
faith by the Board of Directors of the Company, whose determination shall be
described in a statement filed with the Rights Agent.
(e) 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(e) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Section
11 shall be made to the nearest cent or to the nearest millionth of a Preferred
Share or ten-thousandth of any other share or security, as the case may be.
Notwithstanding the first sentence of this Section 11(e), any adjustment
required by this Section 11 shall be made no later than the earlier of (i) three
years from the date of the transaction which requires such adjustment or (ii)
the date of the expiration of the right to exercise any Rights.
(f) If as a result of an adjustment made pursuant to Section 11(a)
hereof, the holder of any Right thereafter exercised shall become entitled to
receive any shares of capital stock of the Company other than Preferred Shares,
thereafter the number of such other shares 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
Preferred Shares contained in Section 11(a) through (m), inclusive, and the
provisions of Sections 7, 9, 10 and 13 with respect to the Preferred Shares
shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of hundredths of a
Preferred Share purchasable from time to time hereunder upon exercise of the
Rights, all subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its election as provided
in Section 11(i), upon each adjustment of the Purchase Price as a result of the
calculations made in Sections 11(b) and (c), each Right outstanding immediately
prior to the making of such adjustment shall thereafter evidence the right to
purchase, at the adjusted Purchase Price, that number of hundredths of a
Preferred Share (calculated to the nearest millionth of a Preferred Share)
obtained by (i) multiplying (x) the number of hundredths of a share covered by a
Right immediately prior to this adjustment by (y) the Purchase Price in effect
immediately prior to such adjustment of the Purchase Price and (ii) dividing the
product so obtained by the Purchase Price in effect immediately after such
adjustment of the Purchase Price.
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(i) The Company may elect on or after the date of any adjustment of
the Purchase Price to adjust the number of Rights, in substitution for any
adjustment in the number of hundredths of a Preferred Share 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 hundredths of a
Preferred Share for which a Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such adjustment of the number of
Rights shall become that number of Rights (calculated to the nearest
ten-thousandth) obtained by dividing the Purchase Price in effect immediately
prior to adjustment of the Purchase Price by the Purchase Price in effect
immediately after adjustment of the Purchase Price. The Company shall make a
public announcement, with written notice thereof to the Rights Agent, 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 Right Certificates have been issued, shall be at
least 10 days later than the date of the public announcement. If Right
Certificates have been issued, upon each adjustment of the number of Rights
pursuant to this Section 11(i), the Company shall, as promptly as practicable,
cause to be distributed to holders of record of Right Certificates on such
record date Right Certificates evidencing, subject to Section 14 hereof, the
additional Rights to which such holders shall be entitled as a result of such
adjustment, or, at the option of the Company, shall cause to be distributed to
such holders of record in substitution and replacement for the Right
Certificates held by such holders prior to the date of adjustment, and upon
surrender thereof, if required by the Company, new Right Certificates evidencing
all the Rights to which such holders shall be entitled after such adjustment.
Right Certificates so to be distributed shall be issued, executed and
countersigned in the manner provided for herein and shall be registered in the
names of the holders of record of Right Certificates on the record date
specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price
or the number of hundredths of a Preferred Share issuable upon the exercise of
the Rights, the Right Certificates theretofore and thereafter issued may
continue to express the Purchase Price and the number of hundredths of a
Preferred Share which were expressed in the initial Right Certificates issued
hereunder.
(k) Before taking any action that would cause an adjustment reducing
the Purchase Price below one hundredth of the then par value, if any, of the
Preferred Shares issuable upon exercise of the Rights, the Company shall take
any corporate action which may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue fully paid and
nonassessable Preferred Shares at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for a
specified event, the Company may elect to defer (and shall provide the Rights
Agent with notice of such election) until the occurrence of such event the
issuing to the holder of any Right exercised after such record date of the
Preferred Shares and other capital stock or securities of the Company, if any,
issuable upon such exercise over and above the Preferred Shares and other
capital stock or securities of the Company, if any, issuable upon such exercise
on the basis of the Purchase Price in effect prior to such
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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 upon the occurrence of the event requiring such
adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding, the
Company shall be entitled to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this Section 11, as and to
the extent that it in its sole discretion shall determine to be advisable in
order that any consolidation or subdivision of the Preferred Shares, issuance
wholly for cash of any Preferred Shares at less than the current market price,
issuance wholly for cash of Preferred Shares or securities which by their terms
are convertible into or exchangeable for Preferred Shares, dividends on
Preferred Shares payable in Preferred Shares or issuance of rights, options or
warrants referred to hereinabove in Section 11(b), hereafter made by the Company
to holders of its Preferred Shares shall not be taxable to such stockholders.
(n) In the event that at any time after the date of this Agreement
and prior to the Distribution Date, the Company shall (i) declare or pay any
dividend on the Common Shares payable in Common Shares or (ii) effect a
subdivision, combination or consolidation of the Common Shares (by
reclassification or otherwise than by payment of dividends in Common Shares)
into a greater or lesser number of Common Shares, then in any such case (A) the
number of hundredths of a Preferred Share purchasable after such event upon
proper exercise of each Right shall be determined by multiplying the number of
hundredths of a Preferred Share so purchasable immediately prior to such event
by a fraction, the numerator of which is the number of Common Shares outstanding
immediately before such event and the denominator of which is the number of
Common Shares outstanding immediately after such event, and (B) each Common
Share outstanding immediately after such event shall have issued with respect to
it that number of Rights which each Common Share outstanding immediately prior
to such event had issued with respect to it. The adjustments provided for in
this Section 11(n) shall be made successively whenever such a dividend is
declared or paid or such a subdivision, combination or consolidation is
effected.
Section 12. Certificate of Adjusted Purchase Price or Number of
Shares. Whenever an adjustment is made as provided in Section 11 or 13 hereof,
the Company shall promptly (a) prepare a certificate setting forth such
adjustment, and a brief statement of the facts and computations accounting for
such adjustment, (b) file with the Rights Agent and with each transfer agent for
the Common Shares or the Preferred Shares a copy of such certificate and (c)
mail a brief summary thereof to each holder of a Right Certificate in accordance
with Section 26 hereof. The Rights Agent shall be fully protected in relying on
any such certificate and on any adjustment contained therein, and shall have no
duty with respect to, and shall not be deemed to have knowledge of, any
adjustment unless and until it shall have received such a certificate.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power. In the event, directly or indirectly, at any time after a Person
has become an Acquiring Person, (a) the Company shall consolidate with, or merge
with and into, any other Person, (b) any Person shall consolidate with the
Company, or merge with and into the Company and the Company shall be the
continuing or surviving corporation of such merger and, in connection
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with such merger, all or part of the Common Shares shall be changed into or
exchanged for stock or other securities of any other Person (or the Company) or
cash or any other property, or (c) the Company shall sell or otherwise transfer
(or one or more of its Subsidiaries shall sell or otherwise transfer), in one or
more transactions, assets or earning power aggregating 50% or more of the assets
or earning power of the Company and its Subsidiaries (taken as a whole) to any
other Person other than the Company or one or more of its wholly owned
Subsidiaries, then, and in each such case, proper provision shall be made so
that (i) each holder of a Right (except as otherwise provided herein) shall
thereafter have the right to receive, upon the exercise thereof at a price equal
to the then current Purchase Price multiplied by the number of hundredths of a
Preferred Share for which a Right is then exercisable, in accordance with the
terms of this Agreement and in lieu of Preferred Shares, such number of Common
Shares of such other Person (including the Company as successor thereto or as
the surviving corporation) as shall equal the result obtained by (A) multiplying
the then current Purchase Price by the number of hundredths of a Preferred Share
for which a Right is then exercisable and dividing that product by (B) 50% of
the then current per share market price of the Common Shares of such other
Person (determined pursuant to Section 11(d) hereof) on the date of consummation
of such consolidation, merger, sale or transfer; (ii) the issuer of such Common
Shares shall thereafter be liable for, and shall assume, by virtue of such
consolidation, merger, sale or transfer, all the obligations and duties of the
Company pursuant to this Agreement; (iii) the term "Company" shall thereafter be
deemed to refer to such issuer; and (iv) such issuer shall take such steps
(including, but not limited to, the reservation of a sufficient number of its
Common Shares in accordance with Section 9 hereof) in connection with such
consummation as may be necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in relation to the
Common Shares thereafter deliverable upon the exercise of the Rights. The
Company shall not consummate any such consolidation, merger, sale or transfer
unless prior thereto the Company and such issuer shall have executed and
delivered to the Rights Agent a supplemental agreement so providing. The Company
shall not enter into any transaction of the kind referred to in this Section 13
if at the time of such transaction there are any rights, warrants, instruments
or securities outstanding or any agreements or arrangements which, as a result
of the consummation of such transaction, would eliminate or substantially
diminish the benefits intended to be afforded by the Rights. The provisions of
this Section 13 shall similarly apply to successive mergers or consolidations or
sales or other transfers.
Section 14. Fractional Rights and Fractional Shares. (a) The Company
shall not be required to issue fractions of Rights or to distribute Right
Certificates which evidence fractional Rights. In lieu of such fractional
Rights, there shall be paid to the registered holders of the Right Certificates
with regard to which such fractional Rights would otherwise be issuable, an
amount in cash equal to the same fraction of the current market value of a whole
Right. For the purposes of this Section 14(a), the current market value of a
whole Right shall be the closing price of the Rights for the Trading Day
immediately prior to the date on which such fractional Rights would have been
otherwise issuable. The closing price for any day shall be the last sale price,
regular way, or, in case no such sale takes place on such day, the average of
the closing bid and asked prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with respect to securities
listed or admitted to trading on the New York Stock Exchange or, if the Rights
are not listed or admitted to trading on the New York Stock Exchange,
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<PAGE>
as reported in the principal consolidated transaction reporting system with
respect to securities listed on the principal national securities exchange on
which the Rights are listed or admitted to trading or, if the Rights are not
listed or admitted to trading on any national securities exchange, the last
quoted price or, if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by NASDAQ or such other
system then in use or, if on any such date the Rights are not quoted by any such
organization, the average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Rights selected by the Board of
Directors of the Company. If on any such date no such market maker is making a
market in the Rights, the fair value of the Rights on such date determined in
good faith by the Board of Directors of the Company shall be used.
(b) The Company shall not be required to issue fractions of
Preferred Shares (other than fractions which are integral multiples of one
hundredth of a Preferred Share) upon exercise of the Rights or to distribute
certificates which evidence fractional Preferred Shares (other than fractions
which are integral multiples of one hundredth of a Preferred Share). Fractions
of Preferred Shares in integral multiples of one hundredth of a Preferred Share
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 Shares
represented by such depositary receipts. In lieu of fractional Preferred Shares
that are not integral multiples of one hundredth of a Preferred Share, the
Company shall pay to the registered holders of Right Certificates at the time
such Rights are exercised as herein provided an amount in cash equal to the same
fraction of the current market value of one Preferred Share. For the purposes of
this Section 14(b), the current market value of a Preferred Share shall be the
closing price of a Preferred Share (as determined pursuant to the second
sentence of Section 11(d)(i) hereof) for the Trading Day immediately prior to
the date of such exercise.
(c) The holder of a Right by the acceptance of the Right expressly
waives his right to receive any fractional Rights or any fractional shares upon
exercise of a Right (except as provided above).
Section 15. Rights of Action. All rights of action in respect of
this Agreement, excepting the rights of action given to the Rights Agent under
Section 18 hereof, are vested in the respective registered holders of the Right
Certificates (and, prior to the Distribution Date, the registered holders of the
Common Shares); and any registered holder of any Right Certificate (or, prior to
the Distribution Date, of the Common Shares), without the consent of the Rights
Agent or of the holder of any other Right Certificate (or, prior to the
Distribution Date, of the Common Shares), may, in his own behalf and for his own
benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise act in respect of, his right to
exercise the Rights evidenced by such Right Certificate in the manner provided
in such Right Certificate and in this Agreement. Without limiting the foregoing
or any remedies available to the holders of Rights, it is specifically
acknowledged that the holders of Rights would not have an adequate remedy at law
for any breach of this Agreement and will be entitled to specific
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<PAGE>
performance of the obligations under, and injunctive relief against actual or
threatened violations of the obligations of any Person subject to, this
Agreement.
Section 16. Agreement of Rights Holders. Every holder of a Right, by
accepting the same, consents and agrees with the Company and the Rights Agent
and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be transferable
only in connection with the transfer of the Common Shares;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if surrendered
at the Designated Office, duly endorsed or accompanied by a proper
instrument of transfer; and
(c) the Company and the Rights Agent may deem and treat the Person
in whose name the Right Certificate (or, prior to the Distribution Date,
the associated Common Shares certificate) is registered as the absolute
owner thereof and of the Rights evidenced thereby (notwithstanding any
notations of ownership or writing on the Right Certificates or the
associated Common Shares certificate made by anyone other than the Company
or the Rights Agent) for all purposes whatsoever, and neither the Company
nor the Rights Agent shall be affected by any notice to the contrary.
Section 17. Right Certificate Holder Not Deemed a Stockholder. No
holder, as such, of any Right Certificate shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of the Preferred Shares or any
other securities of the Company which may at any time be issuable on the
exercise of the Rights represented thereby, nor shall anything contained herein
or in any Right Certificate be construed to confer upon the holder of any Right
Certificate, as such, any of the rights of a stockholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
stockholders (except as provided in Section 25 hereof), or to receive dividends
or subscription rights, or otherwise, until the Right or Rights evidenced by
such Right Certificate shall have been exercised in accordance with the
provisions hereof.
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 preparation,
delivery, administration and execution of this Agreement and any amendment of
this Agreement and the exercise and performance of its duties hereunder. The
Company also agrees to indemnify the Rights Agent for, and to hold it harmless
against, any loss, liability, damage, judgment , fine, penalty, claim, demand,
settlement, cost or expense, incurred without negligence, bad faith or willful
misconduct on the part of the Rights Agent, for any action taken, suffered or
omitted by the Rights Agent in connection with the acceptance and administration
of this Agreement, including, without limitation, the costs and expenses of
defending against any claim of liability in the premises. In no case will the
Rights Agent be liable
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for special, indirect, incidental or consequential loss or damages of any kind
whatsoever, even if the Rights Agent has been advised of the possibility of such
loss or damages.
The Rights Agent shall be authorized and protected and shall incur
no liability for, or in respect of any action taken, suffered or omitted by it
in connection with, its acceptance and administration of this Agreement in
reliance upon any Right Certificate or certificate for the Preferred Shares or
Common Shares or for other securities of the Company, instrument of assignment
or transfer, power of attorney, endorsement, affidavit, letter, notice,
direction, consent, certificate, statement, or other paper or document believed
by it to be genuine and to be signed, executed and, where necessary, verified or
acknowledged, by the proper person or persons, or otherwise upon the advice of
counsel as set forth in Section 20 hereof.
Section 19. Merger or Consolidation or Change of Name of Rights
Agent. Any Person into which the Rights Agent or any successor Rights Agent may
be merged or with which it may be consolidated, or any Person resulting from any
merger or consolidation to which the Rights Agent or any successor Rights Agent
shall be a party, or any Person succeeding to the stock transfer or shareholder
services business of the Rights Agent or any successor Rights Agent, shall be
the successor to the Rights Agent under this Agreement without the execution or
filing of any paper or any further act on the part of any of the parties hereto;
provided, that such Person would be eligible for appointment as a successor
Rights Agent under the provisions of Section 21 hereof. In case at the time such
successor Rights Agent shall succeed to the agency created by this Agreement,
any of the Right Certificates shall have been countersigned but not delivered,
any such successor Rights Agent may adopt the countersignature of the
predecessor Rights Agent and deliver such Right Certificates so countersigned;
and in case at that time any of the Right Certificates shall not have been
countersigned, any successor Rights Agent may countersign such Right
Certificates either in the name of the predecessor Rights Agent or in the name
of the successor Rights Agent; and in all such cases such Right Certificates
shall have the full force provided in the Right 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 Right Certificates shall have been countersigned but
not delivered, the Rights Agent may adopt the countersignature under its prior
name and deliver Right Certificates so countersigned; and in case at that time
any of the Right Certificates shall not have been countersigned, the Rights
Agent may countersign such Right Certificates either in its prior name or in its
changed name; and in all such cases such Right Certificates shall have the full
force provided in the Right Certificates and in this Agreement.
Section 20. Duties of Rights Agents. The Rights Agent undertakes
only the duties and obligations imposed by this Agreement upon the following
terms and conditions, by all of which the Company and the holders of Right
Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be
legal counsel for the Company), and the advice or opinion of such counsel
shall be full and complete authorization and protection to the Rights
Agent, and the Rights Agent shall incur no li-
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ability, for or in respect of any action taken or omitted by it in
good faith and in accordance with such advice or opinion.
(b) Whenever in the performance of its duties under this Agreement
the Rights Agent shall deem it necessary or desirable that any fact or
matter be proved or established by the Company prior to taking, suffering
or omitting to take any action hereunder, such fact or matter (unless
other evidence in respect thereof be herein specifically prescribed) may
be deemed to be conclusively proved and established by a certificate
signed by any one of the Chairman, the Chief Executive Officer, the
President, any Vice President, the Treasurer or the Secretary of the
Company and delivered to the Rights Agent; and such certificate shall be
full authorization and protection to the Rights Agent, and the Rights
Agent shall incur no liability, for or in respect of any action taken,
suffered or omitted to be taken in good faith by it under the provisions
of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and
any other Person only for its own negligence, bad faith or willful
misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement or in the
Right Certificates (except its countersignature thereof) or be required to
verify the same, but all such statements and recitals are and shall be
deemed to have been made by the Company only.
(e) The Rights Agent shall not have any liability for, nor be under
any responsibility in respect of the validity of, this Agreement or the
execution and delivery hereof (except the due execution hereof by the
Rights Agent) or in respect of the validity or execution of any Right
Certificate (except its countersignature thereof); nor shall it be
responsible for any breach by the Company of any covenant or condition
contained in this Agreement or in any Right Certificate; nor shall it be
responsible for any transfer to an Acquiring Person (unless such transfer
is effected after the giving of the notice specified in Section 11(a)(ii))
or any change in the exercisability of the Rights (including the Rights
becoming void pursuant to Section 11(a)(ii) hereof) or any adjustment in
the terms of the Rights (including the manner, method or amount thereof)
provided for in Section 3, 11, 13, 23 or 24, 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 Right
Certificates after actual notice that such change or adjustment is
required); nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any
Preferred Shares to be issued pursuant to this Agreement or any Right
Certificate or as to whether any Preferred Shares 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
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for the carrying out or performing by the Rights Agent of the provisions
of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
any one of the Chairman, 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, suffered or
omitted to be taken by it in good faith in accordance with instructions of
any such officer or for any delay in acting while waiting for those
instructions.
(h) The Rights Agent and any stockholder, affiliate, director,
officer or employee of the Rights Agent may buy, sell or deal in any of
the Rights or other securities of the Company or become pecuniarily
interested in any transaction in which the Company may be interested, or
contract with or lend money to the Company or otherwise act as fully and
freely as though it were not Rights Agent under this Agreement. Nothing
herein shall preclude the Rights Agent from acting in any other capacity
for the Company or for any other Person.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or
by or through its attorneys or agents, and the Rights Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of
any such attorneys or agents or for any loss to the Company or any other
Person resulting from any such act, default, neglect or misconduct,
provided reasonable care was exercised in the selection and continued
employment thereof.
Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under this
Agreement upon 30 days' notice in writing mailed to the Company and to each
transfer agent of the Common Shares or Preferred Shares by registered or
certified mail, and to the holders of the Right Certificates by first-class
mail. The Company may remove the Rights Agent or any successor Rights Agent upon
30 days' notice in writing, mailed to the Rights Agent or successor Rights
Agent, as the case may be, and to each transfer agent of the Common Shares or
Preferred Shares by registered or certified mail, and to the holders of the
Right Certificates by first-class mail. If the Rights Agent shall resign or be
removed or shall otherwise become incapable of acting, the Company shall appoint
a successor to the Rights Agent. If the Company shall fail to make such
appointment within a period of 30 days after giving notice of such removal or
after it has been notified in writing of such resignation or incapacity by the
resigning or incapacitated Rights Agent or by the holder of a Right Certificate
(who shall, with such notice, submit his Right Certificate for inspection by the
Company), then the registered holder of any Right Certificate may apply to any
court of competent jurisdiction for the appointment of a new Rights Agent. Any
successor Rights Agent, whether appointed by the Company or by such a court,
shall be a Person, or an Affiliate of such Person, organized and doing business
under the laws of the U.S. or of the State of New York (or of any other state of
the U.S. so long as such Person is authorized to do business in the State of New
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York), in good standing, having an office in the State of New York, which is
subject to supervision or examination by federal or state authority and which
has at the time of its appointment as Rights Agent a combined capital and
surplus of at least $50 million. After appointment, the successor Rights Agent
shall be vested with the same powers, rights, duties and responsibilities as if
it had been originally named as Rights Agent without further act or deed; but
the predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment the Company shall file notice
thereof in writing with the predecessor Rights Agent and each transfer agent of
the Common Shares or Preferred Shares, and mail a notice thereof in writing to
the registered holders of the Right Certificates. Failure to give any notice
provided for in this Section 21, however, or any defect therein, shall not
affect the legality or validity of the resignation or removal of the Rights
Agent or the appointment of the successor Rights Agent, as the case may be.
Section 22. Issuance of New Right Certificates. Notwithstanding any
of the provisions of this Agreement or of the Rights to the contrary, the
Company may, at its option, issue new Right Certificates evidencing Rights in
such form as may be approved by its Board of Directors to reflect any adjustment
or change in the Purchase Price and the number or kind or class of shares or
other securities or property purchasable under the Right Certificates made in
accordance with the provisions of this Agreement.
Section 23. Redemption. (a) The Board of Directors of the Company
may, at its option, at any time prior to such time as any Person becomes an
Acquiring Person, redeem all but not less than all the then outstanding Rights
at a redemption price of $.01 per Right, appropriately adjusted to reflect any
stock split, stock dividend or similar transaction occurring after the date
hereof (such redemption price being hereinafter referred to as the "Redemption
Price"). The redemption of the Rights by the Board of Directors of the Company
may be made effective at such time, on such basis and with such conditions as
the Board of Directors in its sole discretion may establish.
(b) Immediately upon the action of the Board of Directors of the
Company ordering the redemption of the Rights pursuant to paragraph (a) of this
Section 23, and without any further action and without any notice, the right to
exercise the Rights will terminate and the only right thereafter of the holders
of Rights shall be to receive the Redemption Price. The Company shall promptly
give public notice (with prompt written notice thereof to the Rights Agent) of
any such redemption; provided, however, that the failure to give, or any defect
in, any such notice shall not affect the validity of such redemption. Within 10
days after such action of the Board of Directors ordering the redemption of the
Rights, the Company shall mail a notice of redemption to all the holders of the
then outstanding Rights at their last addresses as they appear upon the registry
books of the Rights Agent or, prior to the Distribution Date, on the registry
books of the transfer agent for the Common Shares. Any notice which is mailed in
the manner herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of redemption will state the method by
which the payment of the Redemption Price will be made. Neither the Company nor
any of its Affiliates or Associates may redeem, acquire or purchase for value
any Rights at any time in any manner other than that specifically set forth in
this Section
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23 or in Section 24 hereof, and other than in connection with the
purchase of Common Shares prior to the Distribution Date.
Section 24. Exchange. (a) The Board of Directors of the Company may,
at its option, at any time after any Person becomes an Acquiring Person,
exchange all or part of the then outstanding and exercisable Rights (which shall
not include Rights that have become null and void pursuant to the provisions of
Section 11(a)(ii) hereof) for Common Shares at an exchange ratio of one Common
Share per Right, appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof (such exchange
ratio being hereinafter referred to as the "Exchange Ratio"). Notwithstanding
the foregoing, the Board of Directors shall not be empowered to effect such
exchange at any time after any Person (other than the Company, any Subsidiary of
the Company, any employee benefit plan of the Company or any such Subsidiary, or
any entity holding Common Shares for or pursuant to the terms of any such plan),
together with all Affiliates and Associates of such Person, becomes the
Beneficial Owner of 50% or more of the Common Shares then outstanding.
(b) Immediately upon the action of the Board of Directors of the
Company ordering the exchange of any Rights pursuant to paragraph (a) of this
Section 24 and without any further action and without any notice, the right to
exercise such Rights shall terminate and the only right thereafter of holders of
such Rights shall be to receive that number of Common Shares 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 (with prompt written
notice thereof to the Rights Agent); provided, however, that the failure to
give, or any defect in, such notice shall not affect the validity of such
exchange. The Company promptly shall mail a notice of any such exchange to all
of the holders of such Rights at their last addresses as they appear upon the
registry books of the Rights Agent. Any notice which is mailed in the manner
herein provided shall be deemed given, whether or not the holder receives the
notice. Each such notice of exchange will state the method by which the exchange
of the Common Shares for Rights will be effected and, in the event of any
partial exchange, the number of Rights which will be exchanged. Any partial
exchange shall be effected pro rata based on the number of Rights (other than
Rights which have become void pursuant to the provisions of Section 11(a)(ii)
hereof) held by each holder of Rights.
(c) In the event that there shall not be sufficient Common Shares
issued but not outstanding or authorized but unissued to permit any exchange of
Rights as contemplated in accordance with this Section 24, the Company shall
take all such action as may be necessary to authorize additional Common Shares
for issuance upon exchange of the Rights. In the event the Company shall, after
good faith effort, be unable to take all such action as may be necessary to
authorize such additional Common Shares, the Company shall substitute, for each
Common Share that would otherwise be issuable upon exchange of a Right, a number
of Preferred Shares or fraction thereof such that the current per share market
price of one Preferred Share multiplied by such number or fraction is equal to
the current per share market price of one Common Share as of the date of
issuance of such Preferred Shares or fraction thereof.
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(d) The Company shall not be required to issue fractions of Common
Shares or to distribute certificates which evidence fractional Common Shares. In
lieu of such fractional Common Shares, the Company shall pay to the registered
holders of the Right Certificates with regard to which such fractional Common
Shares would otherwise be issuable an amount in cash equal to the same fraction
of the current market value of a whole Common Share. For the purposes of this
paragraph (d), the current market value of a whole Common Share shall be the
closing price of a Common Share (as determined pursuant to the second sentence
of Section 11(d)(i) hereof) for the Trading Day immediately prior to the date of
exchange pursuant to this Section 24.
Section 25. Notice of Certain Events. (a) In case the Company shall
propose (i) to pay any dividend payable in stock of any class to the holders of
its Preferred Shares or to make any other distribution to the holders of its
Preferred Shares (other than a regular quarterly cash dividend), (ii) to offer
to the holders of its Preferred Shares rights or warrants to subscribe for or to
purchase any additional Preferred Shares or shares of stock of any class or any
other securities, rights or options, (iii) to effect any reclassification of its
Preferred Shares (other than a reclassification involving only the subdivision
of outstanding Preferred Shares), (iv) to effect any consolidation or merger
into or with, or to effect any sale or other transfer (or to permit one or more
of its Subsidiaries to effect any sale or other transfer), in one or more
transactions, of 50% or more of the assets or earning power of the Company and
its Subsidiaries (taken as a whole) to, any other Person, (v) to effect the
liquidation, dissolution or winding up of the Company, or (vi) to declare or pay
any dividend on the Common Shares payable in Common Shares or to effect a
subdivision, combination or consolidation of the Common Shares (by
reclassification or otherwise than by payment of dividends in Common Shares)
then, in each such case, the Company shall give to the Rights Agent and to each
holder of a Right Certificate, in accordance with Section 26 hereof, a notice of
such proposed action, which shall specify the record date for the purposes of
such stock dividend, or distribution of rights or warrants, or the date on which
such reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution, or winding up is to take place and the date of participation
therein by the holders of the Common Shares and/or Preferred Shares, if any such
date is to be fixed, and such notice shall be so given in the case of any action
covered by clause (i) or (ii) above at least 10 days prior to the record date
for determining holders of the Preferred Shares for purposes of such action, and
in the case of any such other action, at least 10 days prior to the date of the
taking of such proposed action or the date of participation therein by the
holders of the Common Shares and/or Preferred Shares, whichever shall be the
earlier.
(b) In case the event set forth in Section 11(a)(ii) hereof shall
occur, then the Company shall as soon as practicable thereafter give to the
Rights Agent and to each holder of a Right Certificate, in accordance with
Section 26 hereof, a notice of the occurrence of such event, which notice shall
describe such event and the consequences of such event to holders of Rights
under Section 11(a)(ii) hereof.
Section 26. Notices. Notices or demands authorized by this Agreement
to be given or made by the Rights Agent or by the holder of any Right
Certificate to or on the Com-
-23-
<PAGE>
pany shall be sufficiently given or made if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing with the Rights
Agent) as follows:
W. R. Grace & Co.
One Town Center Road
Boca Raton, FL 33486-1010
Attention: Corporate Secretary
Subject to the provisions of Section 21 hereof, any notice or demand authorized
by this Agreement to be given or made by the Company or by the holder of any
Right Certificate to or on the Rights Agent shall be sufficiently given or made
if sent by first-class mail, postage prepaid, addressed (until another address
is filed in writing with the Company) as follows:
The Chase Manhattan Bank
Stock Transfer Department
450 West 33rd Street
New York, NY 10001
Attention: Vice President -- Administration
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Right Certificate shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the registry
books of the Company.
Section 27. Supplements and Amendments. The Company may from time to
time supplement or amend this Agreement without the approval of any holders of
Right Certificates in order to cure any ambiguity, to correct or supplement any
provision contained herein which may be defective or inconsistent with any other
provisions herein, or to make any other provisions with respect to the Rights
which the Company may deem necessary or desirable, any such supplement or
amendment to be evidenced by a writing signed by the Company and the Rights
Agent; provided, however, that from and after such time as any Person becomes an
Acquiring Person, this Agreement shall not be amended in any manner which would
adversely affect the interests of the holders of Rights and further provided,
however, that the Rights Agent shall have no duty or obligation to execute such
amendment or supplement if such amendment or supplement changes or increases its
rights, duties or obligations. Without limiting the foregoing, the Company may
at any time prior to such time as any Person becomes an Acquiring Person amend
this Agreement to lower the thresholds set forth in Sections l(a) and 3(a) to
not less than the greater of (i) the sum of .001% and the largest percentage of
the outstanding Common Shares then known by the Company to be beneficially owned
by any Person (other than the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or any Subsidiary of the Company, or any
entity holding Common Shares for or pursuant to the terms of any such plan) and
(ii) 10%.
Section 28. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Rights Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
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<PAGE>
Section 29. Benefits of This Agreement. Nothing in this Agreement
shall be construed to give to any person or corporation other than the Company,
the Rights Agent and the registered holders of the Right Certificates (and,
prior to the Distribution Date, the Common Shares) any legal or equitable right,
remedy or claim under this Agreement; but this Agreement shall be for the sole
and exclusive benefit of the Company, the Rights Agent and the registered
holders of the Right Certificates (and, prior to the Distribution Date, the
Common Shares).
Section 30. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
Section 31. Governing Law. This Agreement and each Right Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of Delaware and for all purposes shall be governed by and construed in
accordance with the laws of such State applicable to contracts to be made and
performed entirely within such State; provided, however, that all provisions
regarding the rights, duties and obligations of the Rights Agent shall be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed entirely within such State.
Section 32. Counterparts. This Agreement may be executed in any
number of counterparts and each of such counterpart shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
Section 33. Descriptive Headings. Descriptive headings of the
several Sections of this Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions
hereof.
-25-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and attested, all as of the day and year first above written.
Attest: GRACE SPECIALTY CHEMICALS, INC.
(TO BE RENAMED W. R. GRACE & CO.)
By /s/ Robert B. Lamm By /s/ Larry Ellberger
Title: Vice President and Secretary Title: Chief Financial Officer and
Senior Vice President
Attest: THE CHASE MANHATTAN BANK
By /s/ Mary Chan By /s/ Eric Leyson
Title: AVP Title: Vice President
-26-
<PAGE>
A-6
Exhibit A
FORM OF RIGHT CERTIFICATE
Certificate No. R- ________ Rights
NOT EXERCISABLE AFTER MARCH 31, 2008 OR EARLIER
IF REDEMPTION OR EXCHANGE OCCURS. THE RIGHTS
ARE SUBJECT TO REDEMPTION AT $.01 PER RIGHT AND
TO EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT.
RIGHT CERTIFICATE
NEW W. R. GRACE & CO.
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 March 31, 1998 (the "Rights Agreement"),
between W. R. Grace & Co., a Delaware corporation (formerly Grace Specialty
Chemicals, Inc.) (the "Company"), and The Chase Manhattan Bank (the "Rights
Agent"), to purchase from the Company at any time after the Distribution Date
(as such term is defined in the Rights Agreement) and prior to 5:00 P.M., New
York time, on March 31, 2008 at the office of the Rights Agent designated for
such purpose, or at the office of its successor as Rights Agent, one hundredth
of a fully paid nonassessable share of Series A Junior Participating Preferred
Stock, without par value (the "Preferred Shares"), of the Company, at a purchase
price of $100 per hundredth of a Preferred Share (the "Purchase Price"), upon
presentation and surrender of this Right Certificate with the Form of Election
to Purchase duly and properly executed. The number of Rights evidenced by this
Right Certificate (and the number of hundredths of a Preferred Share which may
be purchased upon exercise hereof) set forth above, and the Purchase Price set
forth above, are the number and Purchase Price as of __________, 1998, based on
the Preferred Shares as constituted at such date. As provided in the Rights
Agreement, the Purchase Price and the number of hundredths of a Preferred Share
which may be purchased upon the exercise of the Rights evidenced by this Right
Certificate are subject to modification and adjustment upon the happening of
certain events.
This Right Certificate is subject to all of the terms, provisions
and conditions of the Rights Agreement, which terms, provisions and conditions
are hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder
A-1
<PAGE>
of the Rights Agent, the Company and the holders of the Right Certificates.
Copies of the Rights Agreement are on file at the principal executive offices
of the Company and the above-mentioned offices of the Rights Agent.
This Right Certificate, with or without other Right Certificates,
upon surrender at the office of the Rights Agent designated for such purpose,
may be exchanged for another Right Certificate or Right Certificates of like
tenor and date evidencing Rights entitling the holder to purchase a like
aggregate number of Preferred Shares as the Rights evidenced by the Right
Certificate or Right Certificates surrendered shall have entitled such holder to
purchase. If this Right Certificate shall be exercised in part, the holder shall
be entitled to receive upon surrender hereof another Right Certificate or Right
Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate (i) may be redeemed by the Company at a redemption
price of $.01 per Right or (ii) may be exchanged in whole or in part for
Preferred Shares or shares of the Company's Common Stock, par value $.01 per
share.
No fractional Preferred Shares will be issued upon the exercise of
any Right or Rights evidenced hereby (other than fractions which are integral
multiples of one hundredth of a Preferred Share, which may, at the election of
the Company, be evidenced by depositary receipts), but in lieu thereof a cash
payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose to be the holder of the Preferred
Shares or of any other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a shareholder of the Company or any right to vote with respect
to the election of directors or upon any matter submitted to shareholder at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of any meeting or other action affecting shareholder (except as
provided in the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this Right
Certificate shall have been exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
A-2
<PAGE>
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal.
Dated as of ___________________.
ATTEST: W. R. GRACE & CO.
____________________________________ By:________________________________
Countersigned:
THE CHASE MANHATTAN BANK
By:_________________________________
Authorized Signature
A-3
<PAGE>
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED ______________________________ hereby sells,
assigns and transfers unto ___________________________________________________
(Please print name and address of transferee)
______________________________________________________________________ this
Right Certificate, together with all right, title and interest therein, and does
hereby irrevocably constitute and appoint _________________________ Attorney,
to transfer the within Right Certificate on the books of the within-named
Company, with full power of substitution.
Dated: _________________
------------------------------------
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of Securities
Dealers, Inc., or a commercial bank or trust company having an office or
correspondent in the United States.
The undersigned hereby certifies that the Rights evidenced by this
Right Certificate are not beneficially owned by an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement).
-------------------------------------
Signature
A-4
<PAGE>
Form of Reverse Side of Right Certificate -- continued
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise
Rights represented by the Right Certificate.)
To: W. R. Grace & Co.
The undersigned hereby irrevocably elects to exercise
__________________ Rights represented by this Right Certificate to purchase the
Preferred Shares issuable upon the exercise of such Rights and requests that
certificates for such Preferred Shares be issued in the name of:
Please insert social security
or other identifying number
- -----------------------------------------------------------------------------
(Please print name and address)
If such number of Rights shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance remaining of such Rights
shall be registered in the name of and delivered to:
Please insert social security
or other identifying number
- -----------------------------------------------------------------------------
(Please print name and address)
Dated: ________________
-----------------------------------
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of Securities
Dealers, Inc., or a commercial bank or trust company having an office or
correspondent in the United States.
A-5
<PAGE>
Form of Reverse Side of Right Certificate -- continued
The undersigned hereby certifies that the Rights evidenced by this
Right Certificate are not beneficially owned by an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement).
------------------------------------
Signature
------------------------------------------------------
NOTICE
The signature in the Form of Assignment or Form of Election to
Purchase, as the case may be, must conform to the name as written upon the face
of this Right Certificate in every particular, without alteration or enlargement
or any change whatsoever.
In the event the certification set forth above in the Form of
Assignment or the Form of Election to Purchase, as the case may be, is not
completed, the Company and the Rights Agent 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 such
Assignment or Election to Purchase will not be honored.
Exhibit 4.2
FIRST AMENDMENT
FIRST AMENDMENT, dated as of February 17, 1998 (this "Amendment"),
to the 364-Day Credit Agreement, dated as of May 16, 1997 (the "Credit
Agreement"), among W. R. Grace & Co.-Conn., a Connecticut corporation (the
"Company"), W. R. Grace & Co., a Delaware corporation and sole shareholder of
the Company ("Grace Delaware"), Grace Specialty Chemicals, Inc., a Delaware
corporation ("New Grace"), the several banks from time to time parties to the
Credit Agreement (the "Banks"), NationsBank, N.A. (South), a national
association, as documentation agent (in such capacity, the "Documentation
Agent"), and The Chase Manhattan Bank, a New York banking corporation, as
administrative agent for the Banks thereunder (in such capacity, the
"Administrative Agent").
W I T N E S S E T H :
WHEREAS, New Grace is wholly-owned by Grace Delaware and pursuant to
this Amendment will become a party to the Credit Agreement and a guarantor under
Section 12 of the Credit Agreement to the same extent Grace Delaware is a
guarantor, and will upon completion of the Packaging Transaction (as hereinafter
defined) replace Grace Delaware as guarantor;
WHEREAS, in connection with the Packaging Transaction (as
hereinafter defined) (i) New Grace will become the sole shareholder of the
Company, (ii) the Company will transfer its packaging business to another
subsidiary of Grace Delaware and (iii) Grace Delaware will spin off New Grace
(together with the Company) to Grace Delaware's shareholders;
WHEREAS, the Company has requested the Banks to, among other things,
consent to the Packaging Transaction on the terms and subject to the conditions
set forth herein;
NOW THEREFORE, in consideration of the premises herein contained and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
<PAGE>
ARTICLE II.
CREDIT AGREEMENT AMENDMENTS
2.1 Definitions. (a) Subsection 1.1 of the Credit Agreement is
hereby amended by deleting the definition of "Loan Parties" in its entirety and
by adding the following new definitions to such subsection in correct
alphabetical order:
`Cryovac': Cryovac, Inc., a Delaware corporation and subsidiary
of the Company, together with its subsidiaries.
`Grace Delaware': W.R. Grace & Co., a Delaware corporation and
sole shareholder of the Company.
`Loan Parties': the collective reference to the Company, the
other Borrowers, Grace Delaware and New Grace.
`New Grace': Grace Specialty Chemicals, Inc., a Delaware
corporation.
`Packaging Transaction': the transaction in which all of the
following steps occur: (a) the Company will transfer its packaging
business to Cryovac, (b) Grace Delaware and Cryovac will enter into new
bank borrowings of approximately $1,200,000,000 and the proceeds will be
transferred to the Company, (c) the Company will distribute the stock of
Cryovac to Grace Delaware, (d) Grace Delaware will contribute the stock of
the Company to New Grace, and (e) Grace Delaware will distribute to its
public shareholders the stock of New Grace.
`Parent': Grace Delaware, until such time as Grace Delaware in
connection with the Packaging Transaction no longer directly or indirectly
owns all of the stock of the Company, and thereafter, New Grace, except
that for purposes of Section 12, the term Parent shall include New Grace
and, until the Release Date, Grace Delaware.
`Release Date': the date on which the Administrative Agent
executes the release contemplated by subsection 13.16.
2.2 Miscellaneous. Section 13 of the Credit Agreement is hereby
amended by adding the following new paragraph to the end of such Section:
"13.16 Release of Grace Delaware. Promptly after the completion of
the Packaging Transaction, the Administrative Agent, on behalf of the
Administrative Agent and the Banks, shall, upon receipt of the written
request of the Parent or Grace Delaware, execute an acknowledgment that
Grace Delaware is released from all its obligations under this Agreement
(including, without limitation, its obligations under the Parent
Guarantee) provided that the Administrative Agent shall have received a
certificate dated the date of such request executed by a Responsible
Officer of each of New Grace and the Company to the effect that (a) each
of the representations and warranties made by each of the Loan Parties
(other than Grace Delaware) in or
2
<PAGE>
pursuant to Sections 6.1, 6.2, 6.3, 6.5, 6.9, 6.10, 6.11, 6.12 and
6.13 of this Agreement is true and correct in all material respects as of
the date of such certificate as if made on and as of such date and (b) no
Default or Event of Default has occurred and is continuing on the date of
such certificate after giving effect to the Packaging Transaction."
ARTICLE III.
CREDIT AGREEMENT WAIVERS
3.1 Waiver of Covenants. The Banks and the Administrative Agent
hereby waive compliance by the Loan Parties with the provisions of subsection
9.1, 9.2, 9.3 and 9.4 of the Credit Agreement, solely insofar as the steps taken
in connection with the Packaging Transaction might otherwise be deemed to result
in a breach of any of the covenants contained in those subsections; provided
that the Banks and the Administrative Agent shall only waive compliance by the
Loan Parties with the provisions of subsection 9.1 of the Credit Agreement with
respect to the fiscal quarter ending March 31, 1998 and only then if such
subsection would be breached because step (b) of the Packaging Transaction would
have occurred in the fiscal quarter ending March 31,1998 and step (e) of the
Packaging Transaction would have occurred in the fiscal quarter ending June 30,
1998.
3.2 Waiver of Certain Defaults. The Banks and the Administrative
Agent hereby agree that the waivers contained in Section 3.1 of this Amendment
shall have effect for purposes of Section 8.2(b), Section 10(c) and Section
10(d) of the Credit Agreement, and hereby waive application of the provisions of
Section 10(i) of the Credit Agreement solely insofar as the steps taken in
connection with the Packaging Transaction might otherwise be deemed to result in
a default under Section 10(i).
ARTICLE IV.
MISCELLANEOUS
4.1 Effectiveness. This Amendment shall become effective on the
condition that (a) the Administrative Agent shall have received counterparts
hereof, duly executed and delivered by the Company, Grace Delaware, New Grace
and the Banks, (b) the Administrative Agent shall have received a legal opinion
of counsel to the Company, Grace Delaware and New Grace in form and substance
acceptable to the Administrative Agent, and (c) no Default or Event of Default
shall have occurred and be continuing on the date hereof after giving effect to
this Amendment. The date on which all of the above conditions are met shall be
the date of effectiveness of this Amendment (the "Effective Date").
4.2 New Grace. By signing this Amendment, all of the parties hereto
hereby: (i) acknowledge that as of the Effective Date, New Grace will be a party
to the Credit Agreement, as modified hereby, and, as such, will be bound by the
terms and provisions thereof as if an original party thereto, and (ii)
acknowledge and agree that, commencing with the Effective Date, Grace Delaware
and New Grace will be jointly and severally bound as guarantors under Section 12
of the Credit Agreement, until Grace Delaware is released in accordance with
Section 13.16 of the Credit Agreement.
3
<PAGE>
4.3 Continuing Effect of Credit Agreement. This Amendment shall not
constitute an amendment, consent or waiver of any other provision of the Credit
Agreement not expressly referred to herein and, except as provided herein, shall
not be construed as an amendment, consent or waiver to any further or future
action on the part of the Loan Parties that would require a consent or waiver of
the Administrative Agent and/or any of the Banks. Except as expressly consented
to and waived hereby, the provisions of the Credit Agreement are and shall
remain in full force and effect.
4.4 Counterparts. This Amendment may be executed by one or more of
the parties to this Amendment on any number of separate counterparts, and all of
such counterparts taken together shall be deemed to constitute one and the same
instrument. In addition, this Amendment may be delivered by facsimile
transmission of the relevant signature pages thereof.
4.5 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
4.6 Expenses. The Company agrees to pay or reimburse the
Administrative Agent for all of its out-of-pocket costs and expenses incurred in
connection with the preparation, negotiation and execution of this Amendment,
including, without limitation, the fees and disbursements of counsel to the
Administrative Agent.
4.7 Section Headings. The section headings used in this Amendment
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
4.8 Severability. Any provision of this Amendment which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction, in any such case so long
as the economic or legal substance of the transactions provided for herein is
not affected in any manner adverse to any party.
[The remainder of this page has intentionally been left blank.]
4
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered in New York, New York by their proper and duly
authorized officers as of the day and year first above written.
W. R. GRACE & CO.-CONN.
By:/s/
Title:
W. R. GRACE & CO.
By:/s/
Title:
GRACE SPECIALTY CHEMICALS, INC.
By:/s/
Title:
<PAGE>
THE CHASE MANHATTAN BANK, as
Administrative Agent and as
a Bank
By:/s/
Title:
NATIONSBANK, N.A. (SOUTH)
By:/s/
Title:
ABN AMRO BANK N.V., NEW YORK
BRANCH
By:/s/
Title:
By:/s/
Title:
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By:/s/
Title:
BANK OF NEW YORK
By:/s/
Title:
<PAGE>
THE BANK OF NOVA SCOTIA
By:/s/
Title:
BARCLAYS BANK PLC
By:/s/
Title:
CITIBANK, N.A.
By:/s/
Title:
COMMERZBANK AG, ATLANTA
AGENCY
By:/s/
Title:
By:/s/
Title:
CREDIT LYONNAIS ATLANTA
AGENCY
By:/s/
Title:
<PAGE>
CREDIT SUISSE FIRST BOSTON
By:/s/
Title:
By:/s/
Title:
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By:/s/
Title:
By:/s/
Title:
FIRST UNION NATIONAL BANK OF FLORIDA
By:/s/
Title:
MARINE MIDLAND BANK
By:/s/
Title:
<PAGE>
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By:/s/
Title:
UNION BANK OF SWITZERLAND-NEW YORK
By:/s/
Title:
By:/s/
Title:
Exhibit 4.3
FIRST AMENDMENT
FIRST AMENDMENT, dated as of February 17, 1998 (this
"Amendment"), to the Credit Agreement, dated as of May 16, 1997 (the "Credit
Agreement"), among W. R. Grace & Co.-Conn., a Connecticut corporation (the
"Company"), W. R. Grace & Co., a Delaware corporation and sole shareholder of
the Company ("Grace Delaware"), Grace Specialty Chemicals, Inc., a Delaware
corporation ("New Grace"), the several banks from time to time parties to the
Credit Agreement (the "Banks"), and The Chase Manhattan Bank, a New York banking
corporation, as administrative agent for the Banks thereunder (in such capacity,
the "Administrative Agent").
W I T N E S S E T H :
WHEREAS, New Grace is wholly-owned by Grace Delaware and
pursuant to this Amendment will become a party to the Credit Agreement and a
guarantor under Section 12 of the Credit Agreement to the same extent Grace
Delaware is a guarantor, and will upon completion of the Packaging Transaction
(as hereinafter defined) replace Grace Delaware as guarantor;
WHEREAS, in connection with the Packaging Transaction (as
hereinafter defined) (i) New Grace will become the sole shareholder of the
Company, (ii) the Company will transfer its packaging business to another
subsidiary of Grace Delaware and (iii) Grace Delaware will spin off New Grace
(together with the Company) to Grace Delaware's shareholders;
WHEREAS, the Company has requested the Banks to, among other
things, consent to the Packaging Transaction on the terms and subject to the
conditions set forth herein;
NOW THEREFORE, in consideration of the premises herein
contained and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
<PAGE>
ARTICLE II.
CREDIT AGREEMENT AMENDMENTS
2.1 Definitions. (a) Subsection 1.1 of the Credit Agreement is
hereby amended by deleting the definition of "Loan Parties" in its entirety and
by adding the following new definitions to such subsection in correct
alphabetical order:
`Cryovac': Cryovac, Inc., a Delaware corporation and
subsidiary of the Company, together with its subsidiaries.
`Grace Delaware': W.R. Grace & Co., a Delaware corporation and
sole shareholder of the Company.
`Loan Parties': the collective reference to the Company, the
other Borrowers, Grace Delaware and New Grace.
`New Grace': Grace Specialty Chemicals, Inc., a Delaware
corporation.
`Packaging Transaction': the transaction in which all of the
following steps occur: (a) the Company will transfer its packaging
business to Cryovac, (b) Grace Delaware and Cryovac will enter into
new bank borrowings of approximately $1,200,000,000 and the proceeds
will be transferred to the Company, (c) the Company will distribute
the stock of Cryovac to Grace Delaware, (d) Grace Delaware will
contribute the stock of the Company to New Grace, and (e) Grace
Delaware will distribute to its public shareholders the stock of New
Grace.
`Parent': Grace Delaware, until such time as Grace Delaware in
connection with the Packaging Transaction no longer directly or
indirectly owns all of the stock of the Company, and thereafter, New
Grace, except that for purposes of Section 12, the term Parent shall
include New Grace and, until the Release Date, Grace Delaware.
`Release Date': the date on which the Administrative Agent
executes the release contemplated by subsection 13.16.
2.2 Miscellaneous. Section 13 of the Credit Agreement is
hereby amended by adding the following new paragraph to the end of such Section:
"13.16 Release of Grace Delaware. Promptly after the
completion of the Packaging Transaction, the Administrative Agent,
on behalf of the Administrative Agent and the Banks, shall, upon
receipt of the written request of the Parent or Grace Delaware,
execute an acknowledgment that Grace Delaware is released from all
its obligations under this Agreement (including, without limitation,
its obligations under the Parent Guarantee) provided that the
Administrative Agent shall have received a certificate dated the
date of such request executed by a Responsible Officer of each of
New Grace and the Company to the effect that (a) each of the
representations and warranties made by each of the Loan Parties
(other than Grace Delaware) in or
2
<PAGE>
pursuant to Sections 6.1, 6.2, 6.3, 6.5, 6.9, 6.10, 6.11, 6.12 and
6.13 of this Agreement is true and correct in all material respects
as of the date of such certificate as if made on and as of such date
and (b) no Default or Event of Default has occurred and is
continuing on the date of such certificate after giving effect to
the Packaging Transaction."
ARTICLE III.
CREDIT AGREEMENT WAIVERS
3.1 Waiver of Covenants. The Banks and the Administrative
Agent hereby waive compliance by the Loan Parties with the provisions of
subsection 9.1, 9.2, 9.3 and 9.4 of the Credit Agreement, solely insofar as the
steps taken in connection with the Packaging Transaction might otherwise be
deemed to result in a breach of any of the covenants contained in those
subsections; provided that the Banks and the Administrative Agent shall only
waive compliance by the Loan Parties with the provisions of subsection 9.1 of
the Credit Agreement with respect to the fiscal quarter ending March 31, 1998
and only then if such subsection would be breached because step (b) of the
Packaging Transaction would have occurred in the fiscal quarter ending March
31,1998 and step (e) of the Packaging Transaction would have occurred in the
fiscal quarter ending June 30, 1998.
3.2 Waiver of Certain Defaults. The Banks and the
Administrative Agent hereby agree that the waivers contained in Section 3.1 of
this Amendment shall have effect for purposes of Section 8.2(b), Section 10(c)
and Section 10(d) of the Credit Agreement, and hereby waive application of the
provisions of Section 10(i) of the Credit Agreement solely insofar as the steps
taken in connection with the Packaging Transaction might otherwise be deemed to
result in a default under Section 10(i).
ARTICLE IV.
MISCELLANEOUS
4.1 Effectiveness. This Amendment shall become effective on
the condition that (a) the Administrative Agent shall have received counterparts
hereof, duly executed and delivered by the Company, Grace Delaware, New Grace
and the Banks, (b) the Administrative Agent shall have received a legal opinion
of counsel to the Company, Grace Delaware and New Grace in form and substance
acceptable to the Administrative Agent, and (c) no Default or Event of Default
shall have occurred and be continuing on the date hereof after giving effect to
this Amendment. The date on which all of the above conditions are met shall be
the date of effectiveness of this Amendment (the "Effective Date").
4.2 New Grace. By signing this Amendment, all of the parties
hereto hereby: (i) acknowledge that as of the Effective Date, New Grace will be
a party to the Credit Agreement, as modified hereby, and, as such, will be bound
by the terms and provisions thereof as if an original party thereto, and (ii)
acknowledge and agree that, commencing with the Effective Date, Grace Delaware
and New Grace will be jointly and severally bound as guarantors under Section 12
of the Credit Agreement, until Grace Delaware is released in accordance with
Section 13.16 of the Credit Agreement.
3
<PAGE>
4.3 Continuing Effect of Credit Agreement. This Amendment
shall not constitute an amendment, consent or waiver of any other provision of
the Credit Agreement not expressly referred to herein and, except as provided
herein, shall not be construed as an amendment, consent or waiver to any further
or future action on the part of the Loan Parties that would require a consent or
waiver of the Administrative Agent and/or any of the Banks. Except as expressly
consented to and waived hereby, the provisions of the Credit Agreement are and
shall remain in full force and effect.
4.4 Counterparts. This Amendment may be executed by one or
more of the parties to this Amendment on any number of separate counterparts,
and all of such counterparts taken together shall be deemed to constitute one
and the same instrument. In addition, this Amendment may be delivered by
facsimile transmission of the relevant signature pages thereof.
4.5 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
4.6 Expenses. The Company agrees to pay or reimburse the
Administrative Agent for all of its out-of-pocket costs and expenses incurred in
connection with the preparation, negotiation and execution of this Amendment,
including, without limitation, the fees and disbursements of counsel to the
Administrative Agent.
4.7 Section Headings. The section headings used in this
Amendment are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
4.8 Severability. Any provision of this Amendment which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction, in any such case so long
as the economic or legal substance of the transactions provided for herein is
not affected in any manner adverse to any party.
[The remainder of this page has intentionally been left blank.]
4
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered in New York, New York by their
proper and duly authorized officers as of the day and year first above written.
W. R. GRACE & CO.-CONN.
By: /s/
Title:
W. R. GRACE & CO.
By: /s/
Title:
GRACE SPECIALTY CHEMICALS, INC.
By: /s/
Title:
<PAGE>
THE CHASE MANHATTAN BANK, as
Administrative Agent and as
a Bank
By: /s/
Title:
NATIONSBANK, N.A. (SOUTH)
By: /s/
Title:
ABN AMRO BANK N.V., NEW YORK
BRANCH
By: /s/
Title:
By: /s/
Title:
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By: /s/
Title:
BANK OF NEW YORK
By: /s/
Title:
<PAGE>
THE BANK OF NOVA SCOTIA
By: /s/
Title:
BARCLAYS BANK PLC
By: /s/
Title:
CITIBANK, N.A.
By: /s/
Title:
COMMERZBANK AG, ATLANTA
AGENCY
By: /s/
Title:
By: /s/
Title:
CREDIT LYONNAIS ATLANTA
AGENCY
By: /s/
Title:
<PAGE>
CREDIT SUISSE FIRST BOSTON
By: /s/
Title:
By: /s/
Title:
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By: /s/
Title:
By: /s/
Title:
FIRST UNION NATIONAL BANK OF
FLORIDA
By: /s/
Title:
MARINE MIDLAND BANK
By: /s/
Title:
<PAGE>
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By: /s/
Title:
UNION BANK OF SWITZERLAND
-NEW YORK
By: /s/
Title:
By: /s/
Title:
Exhibit 99.1
#2698
Corporate Communications Division
GRACE NEWS W. R. Grace & Co.
One Town Center Road
Boca Raton, FL 33486-1010
CONTACT: Media Relations: Investor Relations:
Jane D. McGuinness Susan G. Eccher
(561)362-1343 (561) 362-1331
GRACE COMPLETES SPIN-OFF OF SPECIALTY CHEMICALS BUSINESSES
AND COMBINATION OF CRYOVAC PACKAGING WITH SEALED AIR
BOCA RATON, Fla., March 31, 1998 -- W. R. Grace & Co. (NYSE: GRA) today
announced that it had completed the spin-off of its specialty chemicals
businesses and the combination of its Cryovac flexible packaging business with
Sealed Air Corporation (NYSE:SEE).
Immediately prior to the combination of Cryovac with Sealed Air, Grace
spun off to its stockholders a new company comprised of its specialty chemicals
businesses -- Grace Davison, Grace Construction Products and Darex Container
Products. The new company, which will have estimated annual sales of
approximately $1.5 billion, retains the name W. R. Grace & Co., and the combined
packaging company retains the name Sealed Air Corporation.
Grace stockholders will retain 100% ownership of Grace's specialty
chemicals businesses. They also will own 63% of the new Sealed Air, which will
be the world's leading protective and specialty packaging company, with
estimated annual sales in excess of $2.5 billion.
(more)
<PAGE>
-2-
For each Grace common share outstanding at the close of trading on
Tuesday, March 31 (currently estimated at 75.8 million), Grace shareholders are
receiving one share of common stock of New Grace, a fraction of a share of New
Sealed Air common stock and a fraction of a share of New Sealed Air convertible
preferred stock. As previously disclosed, one of these fractions is dependent
upon the trading price of New Sealed Air common stock. Both fractions will be
announced next week.
The tax-free transaction, which has a market value of more than $6
billion, was preceded by the transfer of approximately $1.2 billion in cash to
the specialty chemicals businesses. Grace will use the cash to repay
substantially all of its debt.
New Grace (GRA WI) and New Sealed Air (SEE WI) common and New Sealed Air
Preferred (SEE PrA WI) have traded on the New York Stock Exchange on a
"when-issued" basis since March 24. New Grace is expected to commence
regular-way trading April 7, and New Sealed Air, shortly thereafter.
New Grace headquarters will remain in Boca Raton, Florida. Grace Davison
is a leading global supplier of catalysts and silica-based products. Grace
Construction Products is a leading global supplier of specialty construction
chemicals and building materials. Darex Container Products is a leading global
supplier of container sealants and coatings.
For more information, visit Grace's Web site at www.grace.com.
###
Exhibit 99.2
#2699
GRACE NEWS
CORPORATE COMMUNICATIONS DIVISION
W. R. Grace & Co.
One Town Center Road
Boca Raton, FL 33486-1010
CONTACT: Media Relations: Investor Relations:
Jane D. McGuinness Susan G. Eccher
(561)362-1343 (561)362-1331
GRACE TO ACQUIRE CROSFIELD CATALYSTS AND SILICAS BUSINESS
FROM ICI; BOARD APPROVES 20% SHARE REPURCHASE;
STRATEGIC REVIEW OF DAREX TO BE COMPLETED THIS YEAR
BOCA RATON, Fla., April 2, 1998 -- W. R. Grace & Co. (NYSE: GRA) today
announced that it has entered into a definitive agreement to acquire the
Crosfield business of Imperial Chemical Industries PLC for $455 million in cash.
Completion of the transaction is subject to various conditions, including
customary governmental approvals, and is expected to take place in mid-1998.
Crosfield, with 1997 sales of approximately $270 million, will be
integrated with Grace's Davison business, a leading global supplier of catalysts
and silica products, which had 1997 revenues of $712 million. Crosfield is a
major producer of various silica, silicate and zeolite products, as well as
hydroprocessing and specialty catalysts. Its silica products serve as
ingredients or process aids in a wide range of consumer and industrial
applications in the coatings, plastics, food, pharmaceutical and other
industries, while its catalysts
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<PAGE>
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are used in petroleum refining and polyethylene production. Crosfield is also a
supplier of advanced silicates and zeolites to the detergent industry.
Albert J. Costello, chairman, president and chief executive officer of
Grace, said, "The strategic acquisition of Crosfield is expected to accelerate
the growth of our specialty chemicals businesses. The Crosfield product lines
are highly complementary to our Davison business and present excellent
opportunities for sales and cost synergies. In addition, we anticipate improved
capital management in the combined businesses through shared capacity
utilization and other economies. The acquisition is a further step in our plan
to refocus Grace's business portfolio on those segments with the strongest
market position and the most attractive growth prospects. It should add
significant value for Grace shareholders. We expect it to be substantially
accretive to Grace earnings in the first full year."
James R. Hyde, president of Grace Davison, added, "This transaction
offers exciting opportunities to combine Crosfield and Davison technologies to
enhance our position in hydroprocessing catalysts for oil refining, extend our
capabilities in selected silica products applications, and expand our activities
into the adjacent market areas of silicates and zeolites. In addition, it will
allow Davison to broaden many important customer relationships."
Credit Suisse First Boston advised Grace in this transaction.
SHARE REPURCHASE
Separately, Grace announced that its Board has approved a program to
purchase up to 20% of Grace's outstanding shares in the open market; at
(more)
<PAGE>
March 31, 1998, Grace had approximately 75.8 million shares outstanding. This
authority is expected to be executed over time, depending on market conditions
and other factors.
DAREX CONTAINER PRODUCTS
Grace also announced that it is continuing a strategic review of the
Darex Container Products unit and that a conclusion will be reached this year.
Costello said, "Darex management is pursuing steps to enhance future
profitability, including productivity improvements and the further development
of oxygen-scavenging and active closure technologies.
"On the other hand, substantial third-party strategic interest in this
business has already been expressed. The course that we ultimately pursue with
respect to Darex will be the one that accomplishes our goal of maximizing value
to our shareholders."
Grace is one of the world's leading specialty chemicals companies, with
annual sales of approximately $1.5 billion. For more information, visit Grace's
Web site at www.grace.com.
###
Exhibit 99.3
#2700
CORPORATE COMMUNICATIONS
GRACE NEWS
W. R. Grace & Co.
One Town Center Road
Boca Raton, FL 33486-1010
CONTACT: Media Relations: Investor Relations:
Jane D. McGuinness Susan G. Eccher
(561)362-1343 (561)362-1331
GRACE ANNOUNCES RATIOS
IN SEALED AIR TRANSACTION
BOCA RATON, Fla., April 7, 1998 -- W. R. Grace & Co. (NYSE: GRA) today
announced the amount of "New" Sealed Air Corporation (NYSE: SEE) stock to be
received by Grace shareholders as a result of the March 31 transaction between
the two companies. For each of the 75,835,454 Grace common shares outstanding at
the close of trading on March 31, Grace shareholders will receive .536 of a
share of New Sealed Air common stock and .475 of a share of New Sealed Air
convertible preferred stock, in addition to one share of the "New" Grace
specialty chemicals company.
New Grace common stock (GRA) and New Sealed Air common (SEE) and
convertible preferred (SEE Pr A) stock are expected to begin "regular way"
trading on the New York Stock Exchange tomorrow, April 8.
The receipt of New Grace common shares and New Sealed Air common and
convertible preferred shares (other than the receipt of cash in lieu of
fractional shares) is intended to be tax-free to Grace shareholders for purposes
of U.S. federal income taxes. Information regarding the federal income tax
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<PAGE>
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consequences of the transactions will be mailed to Grace shareholders shortly.
Questions about the New Grace common stock and the allocation of the tax basis
in the transaction can be directed to Grace's transfer agent, ChaseMellon
Shareholder Services, at (800)648-8392. Questions about the New Sealed Air
common and convertible preferred stock can be directed to New Sealed Air's
transfer agent, First Chicago Trust Company of New York, at (800)251-4215.
New Grace is a leading global supplier of catalysts and silica-based
products, specialty construction chemicals and building materials, and container
sealants and coatings.
For more information, visit Grace's Web site at www.grace.com.
###
