SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
IDACORP, INC.
(Exact Name of Registrant as Specified in Its Charter)
Idaho Pending
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(State of Incorporation or Organization) (I.R.S. Employer
Identification no.)
1221 W. Idaho Street, P.O. Box 70, Boise, Idaho 83707
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(Address of Principal Executive Offices) (Zip Code)
If this form relates to the If this form relates to the
registration of a class of registration of a class of
securities pursuant to securities pursuant to
Section 12(b) of the Exchange Section 12(g) of the Exchange
Act and is effective pursuant Act and is effective pursuant
to General Instruction A.(c), to General Instruction A.(d),
please check the following please check the following
box. |X| box. | |
Securities Act registration statement file number to which this form
relates: --------------------------
(if applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
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Preferred Share Purchase Rights New York Stock Exchange
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Pacific Exchange
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Securities to be registered pursuant to Section 12(g) of the Act:
None
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Item l. Description of Securities To Be Registered.
On September 10, 1998, the Board of Directors of IDACORP, Inc., an Idaho
corporation (the "Company"), authorized the issuance of one preferred share
purchase right (each a "Right" and collectively, the "Rights") on each
outstanding share of the Company's common stock, without par value (the "Common
Shares"). The issuance is effective at the close of business on October 1, 1998
(the "Record Date"), to the shareholders of record at that time. Each Right
entitles the registered holder, from the Distribution Date (as hereinafter
defined) until the earlier of September 10, 2008 and the redemption or exchange
of the Rights, to purchase from the Company one one-hundredth of a share of A
Series Preferred Stock, without par value (the "Preferred Shares"), of the
Company, at an exercise price of $95, subject to certain adjustments and subject
to any required regulatory approval. The description and terms of the Rights are
set forth in a Rights Agreement (the "Rights Agreement"), dated as of September
10, 1998 between the Company and The Bank of New York (the "Rights Agent"), the
Rights Agent appointed by the Company.
The Rights will be represented by the certificates for Common Shares and
will not be exercisable or transferable apart from the Common Shares until the
earlier to occur of (i) the close of business on the tenth business day after
the date a Person or group of affiliated or associated persons (an "Acquiring
Person") has acquired, or obtained the right to acquire, beneficial ownership of
20% or more of the outstanding Voting Shares (as such term is defined in the
Rights Agreement) or (ii) the close of business on the tenth business day
following the commencement of, or announcement of an intention to make, a tender
offer or exchange offer the consummation of which would result in the beneficial
ownership by a Person or group of 20% or more of such outstanding Voting Shares
(such date being called the "Distribution Date").
In the event that (a) the Company consolidates or merges with another
Person (as such term is defined in the Rights Agreement), (b) any Person
consolidates with or merges with or into the Company where the Company is the
surviving corporation and all or part of the Common Shares are changed or
exchanged, (c) 50% or more of the Company's consolidated assets or earning power
are sold, or (d) an Acquiring Person engages in certain "self-dealing"
transactions with the Company specified in the Rights Agreement, proper
provision will be made so that each holder of a Right will thereafter have the
right to receive, upon the exercise thereof at the then current exercise price
of the Right, that number of common shares of the Acquiring Person having an
aggregate market value of two times such exercise price.
In the event that any Person becomes an Acquiring Person, proper provision
shall be made so that each holder of a Right, other than Rights beneficially
owned by the Acquiring Person (which will thereafter be void), will thereafter
have the right, subject to any required regulatory approval, to receive upon the
exercise thereof at the then current exercise price of the Right that number of
Common Shares or, at the option of the Company, such number of one-hundredths of
a Preferred Share having an aggregate market value of two times such exercise
price. In the event that regulatory approval for the issuance of Common Shares
or Preferred Shares is not forthcoming, or if there are insufficient authorized
but unissued Common Shares or Preferred Shares to permit the exercise in full of
the Rights, the Company may at its option, with respect to some or all of the
Rights, substitute therefor, subject to the receipt of any required regulatory
approval, cash, securities of the Company and/or its subsidiaries, other assets
or a combination thereof.
The Rights will first become exercisable on the Distribution Date (unless
sooner redeemed) and could then begin trading separately from the Common Shares.
The Rights will expire on September 10, 2008 (the "Final Expiration Date"),
unless the Rights are earlier redeemed or exchanged by the Company, in each case
as described below.
At any time a person becomes an Acquiring Person and prior to the
acquisition by such Acquiring Person of 50% or more of the outstanding Common
Shares, the Board of Directors of the Company may, subject to the receipt of any
necessary regulatory approval, exchange all but not less than all the Rights
(other than Rights owned by such Acquiring Person which will have become void)
at an exchange ratio per Right of (a) one Common Share, appropriately adjusted,
or (b) cash, securities of the Company and/or its subsidiaries, other assets or
any combination of the foregoing having a value equal to the market value of a
Common Share at the time the Acquiring Person became such.
At any time prior to the close of business on the tenth business day after
a person has become an Acquiring Person, the Board of Directors of the Company
may redeem the Rights in whole, but not in part, at a price of $0.01 per Right
(the "Redemption Price").
Immediately upon the action of the Board of Directors of the Company
electing to redeem or exchange the Rights, the right to exercise the Rights will
terminate and the only right of the holders of Rights will be to receive the
Redemption Price or the securities or assets to be received upon the exchange.
The terms of the Rights may be amended in any respect without the consent
of the holders of the Rights prior to the date an Acquiring Person becomes such.
Thereafter the Rights Plan may be amended in any manner not adverse to the
interests of the holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of the Company, including, without limitation, the right
to vote or to receive dividends.
The exercise price payable, and the number of Preferred Shares or other
securities or property issuable, upon the exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Preferred
Shares, (ii) upon the grant to holders of the Preferred Shares of certain rights
or warrants to subscribe for or purchase Preferred Shares at a price, or
securities convertible into Preferred Shares with a conversion price, less than
the then current market price of the Preferred Shares or (iii) upon the
distribution to holders of the Preferred Shares of evidences of indebtedness or
assets (excluding regular periodic cash dividends paid out of earnings or
retained earnings or dividends payable in Preferred Shares) or of subscription
rights or warrants (other than those referred to above).
The number of outstanding Rights and the number of one one-hundredths of a
Preferred Share issuable upon exercise of each Right are also subject to
adjustment in the event of a stock split of the Common Shares or a stock
dividend on the Common Shares payable in Common Shares or subdivisions,
consolidations or combinations of the Common Shares occurring, in any such case,
prior to the Distribution Date.
Preferred Shares purchasable upon exercise of the Rights will not be
redeemable. Each Preferred Share will be entitled to a preferential quarterly
dividend payment equal to the greater of $1 per share or an aggregate dividend
of 100 times the dividends declared per Common Share. In the event of
liquidation, the holders of the Preferred Shares will be entitled to a
preferential liquidation payment equal to the greater of $100 per share or 100
times the liquidation payment made per Common Share. These rights are protected
by customary antidilution provisions.
With certain exceptions, no adjustment in the exercise price will be
required until cumulative adjustments require an adjustment of at least 1% of
such exercise price. No fractional Preferred Shares will be issued (other than
fractions which are integral multiples of one one-hundredth of a Preferred
Share, which may, at the election of the Company, be evidenced by depositary
receipts) and, in lieu thereof, an adjustment in cash will be made based on the
market price of the Preferred Shares.
One Right will be distributed to shareholders of the Company for each
Common Share owned of record by them at the close of business on October 1,
1998. Until the earliest of the Distribution Date, the Final Expiration Date, or
the redemption of the Rights, the Company will issue one Right with each Common
Share that shall become outstanding so that all Common Shares will have attached
Rights. The Company has initially authorized and reserved 1,200,000 Preferred
Shares for issuance upon exercise of the Rights. As of June 30, 1998, there were
37,612,351 Common Shares issued and outstanding. 3,161,321 Common Shares were
reserved for issuance for certain stock plans.
The present distribution of the Rights is not taxable to the Company or its
shareholders. The Rights are not dilutive and will not affect reported earnings
per share. The Company will receive no proceeds from the issuance of the Rights.
The Rights Agreement between the Company and Rights Agent specifying the
terms of the Rights is attached hereto as an exhibit. The foregoing description
of the Rights is qualified in its entirety by reference to such exhibit.
Item 2. Exhibits
4. Rights Agreement dated as of September 10, 1998, between IDACORP,
Inc. and The Bank of New York, as Rights Agent.
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
IDACORP, Inc.
By: /s/ Robert W. Stahman
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Name: Robert W. Stahman
Title: Vice President,
General Counsel and
Corporate Secretary
Dated: September 15, 1998
Exhibit 4
IDACORP, INC.
and
THE BANK OF NEW YORK
Rights Agent
Rights Agreement
Dated as of September 10, 1998
RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of September 10, 1998, between IDACORP, Inc., an
Idaho corporation (the "Company"), and THE BANK OF NEW YORK (the "Rights
Agent").
WHEREAS, the Board of Directors of the Company has authorized and declared
a dividend distribution of one right (a "Right") for each Common Share (as
hereinafter defined) of the Company outstanding at the close of business on
October 1, 1998 (the "Record Date"), each Right representing the right to
purchase one one-hundredth of a Preferred Share (as hereinafter defined), upon
the terms and subject to the conditions herein set forth, and has further
authorized and directed the issuance of one Right (as such number may
hereinafter be adjusted pursuant to the provisions of Section 11(i) hereof) 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).
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the
following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person (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 Voting Shares (as such
term is hereinafter defined) then outstanding but shall not include (i) the
Company, any Subsidiary (as such term is hereinafter defined) of the Company or
any employee benefit plan of the Company or any Subsidiary of the Company, or
any Person who would otherwise be an Acquiring Person solely because of such
Person's holding Common Shares for or pursuant to the terms of any such plan;
(ii) any Person who or which, together with all Affiliates and Associates of
such Person, becomes the Beneficial Owner of 20% or more of the Voting Shares
solely as a result of a change in the aggregate number of Voting Shares
outstanding since the last date on which such Person acquired Beneficial
Ownership of any of the Voting Shares constituting all or a portion of such 20%
or more of the Voting Shares; (iii) any Person who or which, together with all
Affiliates and Associates of such Person, becomes the Beneficial Owner of 20% or
more of the Voting Shares in the good faith belief that such acquisition would
not (x) cause such Person and its Affiliates and Associates to become the
Beneficial Owner of 20% or more of the Voting Shares and such Person relied in
good faith in computing the percentage of its voting power on publicly filed
reports or documents of the Company which are inaccurate or out-of-date or (y)
otherwise cause a Distribution Date or the adjustment provided for in Section
11(a) to occur; and (iv) Idaho Power Company in its capacity as the parent
company of the Company prior to the consummation of the Share Exchange.
Notwithstanding clause (ii) or (iii) of the immediately preceding sentence, if
any Person is excluded from the definition of "Acquiring Person" solely due to
such clause (ii) or (iii) and such person does not cease to be the Beneficial
Owner of 20% or more of the Voting Shares by the close of business on the fifth
Business Day after notice from the Company (the date of notice being the first
day) that such Person is the Beneficial Owner of 20% or more of the Voting
Shares, such Person shall, at the end of such five Business Day period, become
an Acquiring Person (and such clause (ii) or (iii) shall no longer apply to
exclude such Person from the definition of "Acquiring Person" hereunder). For
purposes of this definition of "Acquiring Person", the determination of whether
any Person acted in "good faith" shall be conclusively determined by the Board
of Directors of the Company.
(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 (whether
or not in writing) (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 given to such Person in
response to a public proxy solicitation made pursuant to, and in
accordance with, the applicable rules and regulations of 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 (whether or not in writing) (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.
(d) "Business Day" shall mean any day other than a Saturday, a Sunday, or a
day on which banking institutions in the State of New York are authorized or
obligated by law or executive order to close.
(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
common stock, without par value, 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 other than an individual, the
Person or Persons other than an individual which ultimately control such
first-mentioned Person.
(g) "Company" shall have the meaning set forth in the preamble hereto.
(h) "Current Per Share Market Price" shall have the meaning set forth in
Section 11(d)(i) hereof.
(i) "Depositary Agent" shall have the meaning set forth in Section 14(b)
hereof.
(j) "Distribution Date" shall have the meaning set forth in Section 3
hereof.
(k) "Exercise Price" shall mean the aggregate amount payable by a Rights
holder at any given time to exercise in full one Right in accordance with the
terms of this Agreement.
(l) "Final Expiration Date" shall have the meaning set forth in Section
7(a) hereof.
(m) "Person" shall mean any individual, firm, corporation, partnership or
other entity, and shall include any successor (by merger or otherwise) of such
entity.
(n) "Preferred Shares" shall mean the A Series of the Company's Preferred
Stock, without par value, having the rights and preferences set forth in the
Form of Articles of Amendment to the Company's Restated Articles of
Incorporation upon Issuance of IDACORP, Inc.'s A Series Preferred Stock attached
to this Agreement as Exhibit A.
(o) "Purchase Price" shall have the meaning set forth in Section 7(b)
hereof.
(p) "Record Date" shall have the meaning set forth in the recital hereto.
(q) "Redemption Date" shall have the meaning set forth in Section 7(a)
hereof.
(r) "Redemption Price" shall have the meaning set forth in Section 23(b)
hereof.
(s) "Right" shall have the meaning set forth in the recital hereto.
(t) "Right Certificate" shall have the meaning set forth in Section 3(a)
hereof.
(u) "Rights Agent" shall have the meaning set forth in the preamble hereto.
(v) "Share Exchange" shall mean the exchange of all the common shares of
Idaho Power Company, par value $2.50 per share, for the Company's Common Shares,
pursuant to an Agreement and Plan of Exchange approved at a meeting of the
shareholders of Idaho Power Company, held May 6, 1998.
(w) "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.
(x) "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.
(y) "Voting Shares" shall mean (i) the Common Shares and (ii) any other
shares of capital stock of the Company entitled to vote generally in the
election of directors or entitled to vote together with the Common Shares in
respect of any merger, consolidation, sale of all or substantially all of the
Company's assets, liquidation, dissolution or winding up.
Section 2. Appointment of Rights Agent. The Company hereby appoints the
Rights Agent to act as agent for the Company and the holders of the Rights (who,
in accordance with Section 3 hereof, shall prior to the Distribution Date also
be the holders of the Common Shares of the Company) in accordance with the terms
and conditions hereof, and the Rights Agent hereby accepts such appointment. The
Company may from time to time act as Co-Rights Agent or appoint such Co-Rights
Agents as it may deem necessary or desirable. Any actions which may be taken by
and any deliveries which are to be made to the Rights Agent pursuant to the
terms of this Agreement may be taken by and may be delivered to any such
Co-Rights Agents. To the extent that any Co-Rights Agent takes any action
pursuant to this Agreement, such Co-Rights Agent shall be entitled to all of the
rights and protections of, and subject to all of the applicable duties and
obligations imposed upon, the Rights Agent pursuant to the terms of this
Agreement.
Section 3. Issue of Right Certificates. (a) Until the earlier of (i) the
close of business on the tenth Business Day after the Shares Acquisition Date
(or, if the Shares Acquisition Date shall have occurred prior to the Record
Date, the close of business on the tenth Business Day after the Record Date) or
(ii) the close of business on the tenth Business Day after the date of the
commencement of a tender or exchange offer the consummation of which would
result in any Person becoming an Acquiring Person (or such later date as the
Board of Directors may determine by resolution adopted prior to the Shares
Acquisition Date) (such date being herein referred to as the "Distribution
Date"), (x) the Rights will be evidenced by the certificates for Common Shares
of the Company and not by separate Right Certificates, and (y) the Rights will
be transferable only in connection with, and will automatically be transferred
by, a transfer of the associated Common Shares of the Company. As soon as
practicable after the Distribution Date, 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, send) by first-class, insured,
postage-prepaid mail, to each record holder of Common Shares of the Company 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 the form described
in Section 4 hereof (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) On or prior to the Record Date or as soon as practicable thereafter,
the Company will send a letter summarizing the terms of the Rights, by
first-class mail, to each record holder of Common Shares of the Company as of
the close of business on the Record Date or, if earlier, the date of such
letter, at the address of such holder shown on the records of the Company.
(c) Certificates for Common Shares of the Company authenticated after the
Record Date but prior to the earliest of the Distribution Date, the Redemption
Date or the Final Expiration Date shall have impressed on, printed on, written
on or otherwise affixed to them the following legend:
This certificate also evidences and entitles the holder
hereof to certain rights as set forth in a Rights Agreement
between IDACORP, Inc. and The Bank of New York dated as of
September 10, 1998 (the "Rights Agreement"), the terms of
which are hereby incorporated herein by reference and a copy
of which is on file at the principal executive offices of
IDACORP, Inc. Under certain circumstances, as set forth in
the Rights Agreement, such Rights will be evidenced by
separate certificates and will no longer be evidenced by
this certificate. IDACORP, Inc. will mail to the holder of
this certificate a copy of the Rights Agreement without
charge after receipt of a written request therefor. As
described in the Rights Agreement, Rights beneficially owned
by an Acquiring Person or an Affiliate or Associate of an
Acquiring Person (as such terms are defined in the Rights
Agreement) and any Transferee shall become null and void.
In the event that the Company shall purchase or acquire any Common Shares of the
Company after the Record Date but prior to the earliest of the Distribution
Date, the Redemption Date or the Final Expiration 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 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 B hereto and
may have such marks of identification or designation and such legends, summaries
or endorsements printed thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Agreement, or as may be required to
comply with any applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the Rights
may from time to time be listed, or to conform to usage. Subject to the
provisions of this Agreement, the Right Certificates shall entitle the holders
thereof to purchase such number of one one-hundredths of a Preferred Share as
shall be set forth therein on the terms and conditions set forth herein.
Section 5. Countersignature and Registration. The Right Certificates shall
be executed on behalf of the Company by its Chairman of the Board, its
President, or any of its Vice Presidents, 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, or the
Treasurer or an Assistant Treasurer, of the Company, either manually or by
facsimile signature. The Right Certificates shall be manually or by facsimile
signature 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 Certificate 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.
Following the Distribution Date, the Rights Agent will keep or cause to be
kept, at its shareholder services 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 7(e) and 14 hereof, at any time after the close of
business on the Distribution Date, and at or prior to the close of business on
the earlier of the Redemption Date or the Final Expiration Date, any Right
Certificate or Right Certificates 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 one one-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 shareholder services office of the Rights Agent designated for
such purpose. Neither the Rights Agent nor the Company shall be obligated to
take any such action whatsoever with respect to the transfer of any such
surrendered Right Certificate until the registered holder shall have completed
and signed the certificate contained in the form of assignment on the reverse
side of such Right Certificate and shall have provided such additional evidence
of the identity of the Beneficial Owner (or former Beneficial Owner) or
Affiliate or Associate thereof as the Company shall reasonably request.
Thereupon, the Rights Agent shall, subject to Sections 7(e) and 14, 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.
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) Subject to Section 7(e) hereof, at any time after the Distribution Date, and
at or prior to the earlier of (i) the close of business on September 10, 2008
(the "Final Expiration Date"), or (ii) the time at which the Rights are redeemed
or exchanged as provided in Section 23 hereof (the "Redemption Date"), the
registered holder of any Right Certificate may exercise the Rights evidenced
thereby (except as otherwise provided herein, including without limitation any
restriction on exercisability set forth in or resulting from Section 9, Section
11(a)(iii), Section 14 and Section 20(j) hereof) in whole or in part upon
surrender of the Right Certificate, with the form of election to purchase and
the certificate on the reverse side thereof duly executed, to the Rights Agent
at the principal office or offices of the Rights Agent designated for such
purpose, together with payment of the Purchase Price for each one one-hundredths
of a Preferred Share as to which the Rights are exercised.
(b) The purchase price for each one one-hundredths of a Preferred Share
pursuant to the exercise of a Right (the "Purchase Price") shall initially be
$95.00, shall be subject to adjustment from time to time as provided in Sections
11 and 13 hereof and shall be payable in accordance with paragraph (c) below.
(c) Upon receipt of a Right Certificate representing exercisable Rights,
with the form of election to purchase and the certificate duly executed,
accompanied by payment of the Purchase Price for the Preferred Shares to be
purchased and an amount equal to any applicable transfer tax required to be paid
by the holder of such Right Certificate in accordance with Section 9 hereof, the
Rights Agent shall, subject to Section 20(j) hereof, thereupon promptly (i) (A)
requisition from any transfer agent for the Preferred Shares certificates for
the number of Preferred Shares to be purchased and the Company hereby
irrevocably authorizes such transfer agent to comply with all such requests, or
(B) requisition from the Depositary Agent depositary receipts representing such
number of one one-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. The payment of the
Purchase Price shall be made in cash or by certified bank check or bank draft
payable to the order of the Company or Rights Agent.
(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 Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the contrary, from and
after the date upon which any person shall become an Acquiring Person, any
Rights beneficially owned by (i) an Acquiring Person or an Associate or
Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or
of any such Associate or Affiliate) who becomes a transferee after the Acquiring
Person becomes such, or (iii) a transferee of an Acquiring Person (or of any
such Associate or Affiliate) who becomes a transferee prior to or concurrently
with the Acquiring Person becoming such and receives such Rights pursuant to
either (A) a transfer (whether or not for consideration) from the Acquiring
Person to holders of equity interests in such Acquiring Person or to any Person
with whom the Acquiring Person has any continuing agreement, arrangement or
understanding regarding the transferred Rights or (B) a transfer which the Board
of Directors of the Company has determined is part of a plan, arrangement or
understanding which has as a primary purpose or effect the avoidance of this
Section 7(e), shall become null and void without any further action and no
holder of such Rights shall have any rights whatsoever with respect to such
Rights, whether under any provision of this Agreement or otherwise. No Right
Certificate shall be issued pursuant to Section 3 that represents any such Right
and no Right Certificate shall be issued at any time upon the transfer of any
Rights to or from an Acquiring Person or any Associate or Affiliate thereof or
to or from any nominee of such Acquiring Person, Associate or Affiliate. Any
Right Certificate delivered to the Rights Agent for such a transfer shall be
cancelled. The Company shall use all reasonable efforts to ensure that the
provisions of this Section 7(e) are complied with.
(f) Notwithstanding anything in this Agreement to the contrary, neither the
Rights Agent nor the Company shall be obligated to undertake any action with
respect to the exercise of any Rights unless the registered holder thereof shall
have (i) completed and signed the certificate contained in the form of election
to purchase set forth on the reverse side of the Right Certificate surrendered
for such exercise, and (ii) provided such additional evidence of the identity of
the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates
thereof as the Rights Agent or the Company shall request.
Section 8. Cancellation and Destruction of Right Certificates. All Right
Certificates surrendered for the purpose of exercise, transfer, split up,
combination or exchange shall, if surrendered to the Company or to any of its
agents, be delivered to the Rights Agent for cancellation or in 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 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 in accordance with Rule
17Ad-7 of the Securities Exchange Act of 1934, and in such case shall deliver a
certificate of destruction thereof to the Company.
Section 9. Reservation and 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.
The Company shall use its best efforts, as soon as practicable following
the Shares Acquisition Date, to obtain such regulatory approvals and take such
other action as may be required for it to issue and/or sell securities
purchasable upon the exercise of the Right.
Notwithstanding any provision of this Agreement to the contrary, the Rights
(a) shall not be exercisable pursuant to Section 7 or pursuant to the provisions
contemplated by Section 11(a)(ii) hereof until any regulatory approvals required
for the issuance and/or sale of securities upon such exercise have been obtained
and (b) shall not be exercisable in any jurisdiction if the requisite
qualification in such jurisdiction shall not have been obtained or the exercise
thereof shall not be permitted under applicable law.
The Company covenants and agrees that it will take all such action as may
be necessary to ensure that all securities delivered upon exercise of Rights
shall be duly and validly authorized and issued and, if equity securities, fully
paid and nonassessable.
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 securities upon the exercise of Rights. The Company shall not, however, be
required to pay any transfer tax which may be payable in respect of any transfer
or delivery of Right Certificates to a person other than, or the issuance or
delivery of certificates or depositary receipts for securities in a name other
than that of, the registered holder of the Right Certificate evidencing Rights
surrendered for transfer or exercise or to issue or to deliver any certificates
or depositary receipts for securities upon the exercise of any Rights until any
such tax shall have been paid by the holder of which Right Certificate or until
it has been established to the Company's satisfaction that no such tax 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 (or
if such day is not a Business Day, the next succeeding Business Day) upon which
the Right Certificate evidencing such Rights was duly surrendered and payment of
the Purchase Price (and any applicable transfer taxes) was made.
Section 11. Adjustment of Purchase Price Amount and Type of Securities or
Number of Rights. The Purchase Price, the amount and type of securities covered
by each Right and the number of Rights outstanding are subject to adjustment
from time to time as provided in this Section 11.
(a) (i) In the event the Company shall at any time after the date of this
Agreement and prior to the Shares Acquisition 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 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), 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.
(ii) Subject to the provisions of Section 7(e), Section 9, Section 14 and
Section 20(j) hereof, in the event any Person shall become an Acquiring Person,
proper provision shall be made so that each holder of a Right, except as
provided below, shall thereafter have a right to receive, upon exercise thereof
at a price equal to the Exercise Price, that number of Common Shares of the
Company and/or, at the election of the Company, one one-hundredths of a
Preferred Share as having an aggregate Current Per Share Market Price on the
Shares Acquisition Date equal to twice the Exercise Price.
(iii) In the event that there shall not be sufficient Common Shares of the
Company and/or Preferred Shares or a combination thereof, issued but not
outstanding or authorized but unissued, or there shall not have been received
any regulatory approval required, to permit the exercise in full of the Rights
in accordance with the foregoing subparagraph (ii), the Company may, at its
option, with respect to some of or all of the Rights (as hereinafter provided),
make adequate provision to substitute, upon exercise of each such Right but
subject to Section 9 hereof, (1) cash, (2) a reduction in the Purchase Price,
(3) equity securities of the Company and/or its Subsidiaries, (4) debt
securities of the Company and/or its Subsidiaries, (5) other assets, or (6) any
combination of the foregoing, having an aggregate value equal to the aggregate
Current Per Share Market Price on the Shares Acquisition Date of the securities
for which each such Right would otherwise be exercisable pursuant to Section
11(a)(ii) hereof (such aggregate value to be determined by the Board of
Directors of the Company based upon the advice of a nationally recognized
investment banking firm selected by the Board of Directors of the Company, which
determination shall be described in a statement filed with the Rights Agent). To
the extent that the Board of Directors of the Company determines that some
action need be taken pursuant to the first sentence of this Section 11(a)(iii),
the Company (x) shall provide, subject to Section 7(e) hereof, that such action
shall apply uniformly to all outstanding Rights (or to Rights pro-rata or such
other reasonable method of allocation as shall be determined by the Board of
Directors of the Company, to the extent that such action applies to less than
all the Rights), and (y) may suspend the exercisability of the Rights in order
to seek any authorization of additional shares, to take any action to obtain any
required regulatory approval and/or to decide the appropriate form of
distribution to be made pursuant to such first sentence and to determine the
value thereof. In the event of any such suspension, the Company shall issue a
public announcement stating that the exercisability of the Rights has been
temporarily suspended, as well as a public announcement at such time as the
suspension is no longer in effect.
(b) In case the Company shall fix a record date for the issuance of rights,
options or warrants to all holders of Preferred Shares prior to the Shares
Acquisition Date 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 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 Per Share 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). 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. 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.
(c) In case the Company shall fix a record date for the making of a
distribution to all holders of the Preferred Shares prior to the Shares
Acquisition Date (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)),
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 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. 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 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 or (B) any
subdivision, combination or reclassification of such Security and prior to the
expiration of 30 Trading Days after the ex-dividend date for such dividend or
distribution, or the record date for such subdivision, combination or
reclassification, then, and in each such case, the Current Per Share Market
Price shall be appropriately adjusted to reflect the current market price per
share equivalent of such Security. 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.
(ii) For the purpose of any computation hereunder, the Current Per Share
Market Price of the Preferred Shares on any date 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 of the Company as determined pursuant to Section
11(d)(i) (appropriately adjusted to reflect any stock split, stock dividend,
reclassification or similar transaction occurring after the Distribution Date),
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 one-millionth of a Preferred
Share or one 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) or
Section 13, the holder of any Right thereafter exercised shall become entitled
to receive any securities or assets other than Preferred Shares, the provisions
of this Agreement with respect to the Preferred Shares shall apply as
appropriate to any such other securities or assets in order to fully realize the
benefits intended to be conferred by Section 11(a) and/or Section 13 hereof.
(g) All Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of one one-hundredths of a
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 one one-hundredths of a
Preferred Share (calculated to the nearest one one-millionth of a Preferred
Share) obtained by (i) multiplying (x) the number of one one-hundredths of a
share covered by a Right immediately prior to this adjustment by (y) the
Purchase Price in effect immediately prior to such adjustment of the Purchase
Price and (ii) dividing the product so obtained by the Purchase Price in effect
immediately after such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any adjustment of the
Purchase Price to adjust the number of Rights, in substitution for any
adjustment in the number of one one-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 one
one-hundredths of a Preferred Share for which a Right was exercisable
immediately prior to such adjustment. Each Right held of record prior to such
adjustment of the number of Rights shall become that number of Rights
(calculated to the nearest one ten-thousandth) obtained by dividing the Purchase
Price in effect immediately prior to adjustment of the Purchase Price by the
Purchase Price in effect immediately after adjustment of the Purchase Price. The
Company shall make a public announcement of its election to adjust the number of
Rights, indicating the record date for the adjustment, and, if known at the
time, the amount of the adjustment to be made. This record date may be the date
on which the Purchase Price is adjusted or any day thereafter, but, if the 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, subject to the
provisions of Section 7(e) hereof, 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 one one-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 one one-hundredths of a
Preferred Share which were expressed in the initial Right Certificates issued
hereunder.
(k) 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 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 securities, if any, issuable upon such exercise over
and above the Preferred Shares and other securities, if any, issuable upon such
exercise on the basis of the Purchase Price in effect prior to such adjustment;
provided, however, that the Company shall deliver to such holder a due bill or
other appropriate instrument evidencing such holder's right to receive such
securities upon the occurrence of the event requiring such adjustment.
(l) Anything in this Section 11 to the contrary notwithstanding, the
Company shall be entitled to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this Section 11, as and to
the extent that 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 shareholders.
(m) 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 its Common Shares payable in Common Shares or (ii) effect a
subdivision, combination or consolidation of its Common Shares (by
reclassification or otherwise than by payment of dividends in its Common Shares)
into a greater or lesser number of Common Shares of the Company, then in any
such case (i) the Purchase Price in effect after such event upon proper exercise
of each Right shall be determined by multiplying the Purchase Price in effect
immediately prior to such event by a fraction, the numerator of which is the
number of such Common Shares outstanding immediately before such event and the
denominator of which is the number of such Common Shares outstanding immediately
after such event, and (ii) each Common Share of the Company outstanding
immediately after such event shall have issued with respect to it that number of
Rights which each such Common Share outstanding immediately prior to such event
had issued with respect to it. The adjustments provided for in this Section
11(m) 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 Sections 11 and 13 hereof, the
Company shall promptly (a) prepare a certificate setting forth such adjustment,
and a brief statement of the facts accounting for such adjustment, (b) file with
the Rights Agent and with each transfer agent for the Common Shares of the
Company 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
25 hereof.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning
Power or Certain Other Transactions. In the event, directly or indirectly, (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 with such merger, all or part of the Common Shares of
the Company shall be changed into or exchanged for stock or other securities of
any other Person (or the Company) or cash or any other property, (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, or to two or more Persons
which are affiliated or otherwise acting in concert, other than the Company or
one or more of its wholly-owned Subsidiaries, (d) any Acquiring Person, or an
Affiliate or Associate thereof (other than the Company or its Subsidiaries),
shall (i) obtain from the Company or its Subsidiaries, with or without
consideration, over any period of 12 consecutive calendar months, any additional
shares of any class of capital stock of the Company or any of its Subsidiaries
equal in the aggregate to more than 1% of the outstanding shares of such class,
or securities exercisable or exchangeable for or convertible into more than 1%
of the outstanding shares of any class of capital stock of the Company or any of
its Subsidiaries (in each case other than as part of a pro rata distribution to
all holders of such stock or pursuant to the exercise of rights or warrants, or
the conversion or exchange of securities, issued pro rata in such a
distribution), (ii) sell, purchase, lease, exchange, mortgage, pledge, transfer
or otherwise acquire or dispose of, to, from, or with, as the case may be, the
Company or any of its Subsidiaries, over any period of 12 consecutive calendar
months, assets (x) having an aggregate fair market value of more than
$15,000,000 or (y) on terms and conditions less favorable to the Company than
the Company would be able to obtain through arm's-length negotiations with an
unaffiliated third party, (iii) receive any compensation for services from the
Company or any of its Subsidiaries, other than compensation for full-time
employment as a regular employee at rates in accordance with the Company's (or
its Subsidiaries') past practices, or (iv) receive the benefit, directly or
indirectly (except proportionately as a shareholder), over any period of 12
consecutive calendar months, of any loans, advances, guarantees, pledges,
insurance, reinsurance or other financial assistance or any tax credits or other
tax advantage provided by the Company or any of its Subsidiaries involving an
aggregate principal amount in excess of $15,000,000 or an aggregate cost or
transfer of benefits from the Company or any of its Subsidiaries in excess of
$15,000,000 or, in any case, on terms and conditions less favorable to the
Company than the Company would be able to obtain through arm's-length
negotiations with an unaffiliated third party, or (e) as a result of any
reclassification of securities (including any reverse stock split), or
recapitalization, of the Company, or any merger or consolidation of the Company
with any of its Subsidiaries or any other transaction or series of transactions
(whether or not with or into or otherwise involving an Acquiring Person), the
proportionate share of the outstanding shares of any class of equity or
convertible securities of the Company or any of its Subsidiaries which is
directly or indirectly owned by any Acquiring Person, or an Affiliate or
Associate thereof, is increased by more than 1%, then, and in each such case,
proper provision shall be made so that (i) each holder of a Right shall
thereafter have the right to receive, upon the exercise thereof at a price equal
to the Exercise Price, that number of Common Shares of such other Person
(including the Company as successor thereto or as the surviving corporation)
having an aggregate Current Per Share Market Price on the date of consummation
of such transaction equal to twice the Exercise Price; (ii) the issuer of such
Common Shares shall thereafter be liable for, and shall assume, by virtue of
such transaction, 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 enter into or permit to
occur any such transaction unless prior thereto (a) the Company and such issuer
shall have executed and delivered to the Rights Agent a supplemental agreement
so providing and (b) the issuance of Common Shares of such issuer upon exercise
of Rights (as they shall have been modified pursuant to the immediately
preceding sentence) shall have been approved, to the extent required, by all
regulatory authorities having jurisdiction over such issuance, and all other
actions necessary in order to permit in full, upon exercise of Rights the
issuance of such Common Shares (including, without limitation, the reservation
of sufficient such Common Shares to enable all outstanding Rights to be
exercised in full) shall have been completed. The Company shall not enter into
or permit to occur 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 would eliminate
or materially diminish the benefits intended to be afforded by the Rights,
including the benefits intended to be conferred by this Section 13 upon
consummation of such transaction. The provisions of this Section 13 shall
similarly apply to successive mergers, consolidations, sales and other
transactions referred to in this Section 13.
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, 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 as 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 one-hundredths
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 one-hundredths of a Preferred Share). Fractions of
Preferred Shares in integral multiples of one one-hundredths 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 agent
selected by it (the "Depositary Agent"), 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-hundredths 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 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 securities 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 any registered holder of any Right Certificate, without the
consent of the Rights Agent or of the holder of any other Right Certificate,
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 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 Right 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 of the Company;
(b) after the Distribution Date, the Right Certificates are transferable
only on the registry books of the Rights Agent if surrendered at the principal
office or offices of the Rights Agent designated for such purposes, duly
endorsed or accompanied by a proper instrument of transfer;
(c) subject to Sections 6 and 7(f) hereof, 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, subject to the last sentence of Section 7(e),
shall be affected by any notice to the contrary; and
(d) notwithstanding anything in this Agreement to the contrary, neither the
Company nor the Rights Agent shall have any liability to any holder of a Right
or other Person as a result of its inability to perform any of its obligations
under this Agreement by reason of any preliminary or permanent injunction or
other order, decree or ruling issued by a court of competent jurisdiction or by
a governmental, regulatory or administrative agency or commission, or any
statute, rule, regulation or executive order promulgated or enacted by any
governmental authority, prohibiting or otherwise restraining performance of such
obligation; provided, however, the Company shall use its best efforts to have
any such order, decree or ruling lifted or otherwise overturned as soon as
possible.
Section 17. Right Certificate Holder Not Deemed a Shareholder. 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 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 shareholder or any right to vote for the election
of directors or upon any matter submitted to shareholders at any meeting
thereof, or to give or withhold consent to any corporate action, or to receive
notice of meetings or other actions affecting shareholders (except as expressly
provided herein), 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 administration and
execution of this Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights Agent for, and to
hold it harmless against, any loss, liability, or expense, incurred without
negligence, bad faith or willful misconduct on the part of the Rights Agent, for
anything done or omitted by the Rights Agent in connection with the acceptance
and administration of this Agreement, including the costs and expenses of
defending against any claim of liability in the premises.
The Rights Agent shall be protected and shall incur no liability for, or in
respect of any action taken, suffered or omitted by it in connection with, its
administration of this Agreement in reliance upon any 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.
Section 19. Merger or Consolidation or Change of Name of Rights Agent. Any
corporation into which the Rights Agent or any successor Rights Agent may be
merged or with which it may be consolidated, or any corporation resulting from
any merger or consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any corporation succeeding to the corporate trust or
stock transfer business of the Rights Agent or any successor Rights Agent, shall
be the successor to the Rights Agent under this Agreement without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, provided that such corporation would be eligible for appointment as a
successor Rights Agent under the provisions of Section 21 hereof. 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 Agent. The Rights Agent undertakes the duties
and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of 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 opinion of such counsel shall be full and
complete authorization and protection to the Rights Agent as to any action taken
or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the
Rights Agent shall deem it necessary or desirable that any fact or matter be
proved or established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively proved and
established by a certificate signed by any one of the Chairman of the Board, the
President, any Executive Vice President or Vice President, the Treasurer, the
Secretary, or any Assistant Treasurer or Assistant Secretary of the Company and
delivered to the Rights Agent; and such certificate shall be full authorization
to the Rights Agent for any action taken or suffered in good faith by it under
the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other
Person only for its own negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the Right
Certificates (except its countersignature thereof) or be required to verify the
same, but all such statements and recitals are and shall be deemed to have been
made by the Company only.
(e) The Rights Agent shall not be under any responsibility in respect of
the validity of this Agreement or the execution and delivery hereof (except the
due 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 change in the exercisability of the Rights or any
adjustment in the terms of the Rights (including the manner, method or amount
thereof) provided for in Section 3, 11 or 13, 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 Common Shares of
the Company or 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 for the carrying out or performing by the Rights Agent of
the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from any
one of the Chairman of the Board, the President, any Executive Vice President or
Vice President, the Treasurer, the Secretary, or any Assistant Treasurer or
Assistant Secretary of the Company, and to apply to such officers for advice or
instructions in connection with its duties, and it shall not be liable for any
action taken or suffered 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 shareholder, 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 legal entity.
(i) The Rights Agent may execute and exercise any of the rights or powers
hereby vested in it or perform any duty hereunder either itself or by or through
its attorneys or agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any such act, default,
neglect or misconduct, provided reasonable care was exercised in the selection
and continued employment thereof.
(j) If, with respect to any Right Certificate surrendered to the Rights
Agent for exercise or transfer, the certificate attached to the form of
assignment or form of election to purchase, as the case may be, has either not
been completed or indicates an affirmative response to clause 1 and/or 2
thereof, the Rights Agent shall not take any further action with respect to such
requested exercise of transfer without first consulting with the Company.
Section 21. Change of Rights Agent. The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this Agreement
upon 30 days' notice in writing mailed to the Company and to each transfer agent
of the Common Shares of the Company 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 of
the Company 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 (a) corporation organized and doing business under the
laws of the United States or the State of New York or the State of Washington
(or of any other state of the United States so long as such corporation is
authorized to do business as a banking institution in the State of Washington or
the State of New York), in good standing, having an office in the State of
Washington or the State of New York, which is authorized under such laws to
exercise corporate trust or stock transfer powers and is subject to supervision
or examination by federal or state authority and which has at the time of its
appointment as Rights Agent a combined capital and surplus of at least $50
million, or (b) an affiliate of a corporation described in clause (a) of this
sentence. 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
of the Company 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. In addition, in connection with the issuance or
sale of Common Shares of the Company following the Distribution Date and prior
to the Redemption Date or the Final Expiration Date, the Company shall, with
respect to Common Shares of the Company so issued or sold pursuant to the
exercise of stock options outstanding prior to the Distribution Date, or upon
the exercise, conversion or exchange of securities hereinafter issued by the
Company, and outstanding prior to the Distribution Date, issue Right
Certificates representing the appropriate number of Rights in connection with
such issuance or sale; provided, however, that (i) no such Right Certificate
shall be issued if, and to the extent that, appropriate adjustment shall
otherwise have been made in lieu of the issuance thereof.
Section 23. Redemption or Exchange. (a) The Rights may be redeemed or
exchanged by action of the Board of Directors pursuant to this Section 23 and
shall not be redeemed in any other manner.
(b) The Board of Directors of the Company may, at its option, at any time
prior to the close of business on the tenth Business Day after the Shares
Acquisition Date (or, if the Shares Acquisition Date shall have occurred prior
to the Record Date, the close of business on the tenth Business Day after the
Record Date), elect to redeem all but not less than all the then outstanding
Rights at a redemption price of $0.01 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").
In deciding whether or not to exercise the Company's right of redemption
hereunder, the Board of Directors of the Company shall act in good faith, in a
manner they reasonably believe to be in the best interests of the Company and
with such care, including reasonable inquiry, skill and diligence, as a person
of ordinary prudence would use under similar circumstances, and they may
consider the long-term and short-term effects of any action upon employees,
suppliers, customers and creditors of the Company or its Subsidiaries and upon
communities in which offices or other establishments of the Company or its
Subsidiaries are located, and all other pertinent factors.
(c) The Board of Directors of the Company may, at its option but subject to
receipt of any required regulatory approvals, at any time after the Shares
Acquisition Date and prior to such time an Acquiring Person becomes the
Beneficial Owner of more than 50% of the outstanding Common Shares of the
Company, elect to exchange all but not less than all the then outstanding Rights
(other than Rights that have become void pursuant to the provisions of Section
7(e) hereof) for (i) Common Shares of the Company at an exchange ratio of one
Common Share of the Company per Right, appropriately adjusted in order to
protect the interests of holders of Rights generally in the event that after the
Distribution Date any issuance or distribution of securities, cash or assets in
respect of, in lieu of or in exchange for Common Shares of the Company and/or
Preferred Shares (whether by dividend, in a reclassification or
recapitalization, or otherwise, including any such transaction involving a
merger or consolidation), shall have occurred; provided, however, that in the
event that insufficient Common Shares of the Company are authorized but
unissued, or otherwise available for issuance, to permit in full the exchange
provided hereby, then each Right shall be exchanged for (x) that fraction of a
Common Share of the Company, the numerator of which shall be the total number of
Common Shares of the Company authorized but unissued or otherwise available for
issuance and the denominator of which shall be the aggregate number of such
Common Shares of the Company which would have been issued pursuant to this
subparagraph (c)(i) had such Common Shares been available for issuance, plus (y)
that fraction of a Preferred Share, also appropriately adjusted as provided
herein, the numerator of which shall be one minus the fraction of a Common Share
of the Company to be so issued and the denominator of which shall be 100, or
(ii) cash, debt or equity securities of the Company and/or a Subsidiary thereof
or other assets or any combination of the foregoing having an aggregate value
(when paid) equal to the Current Per Share Market Price of one Common Share of
the Company at the Shares Acquisition Date.
(d) Immediately upon the action of the Board of Directors of the Company
electing to redeem or exchange the Rights pursuant to subsection (b) or (c) of
this Section 23, and without any further action and without any notice, the
right to exercise the Rights will terminate and each Right will thereafter
represent only the right to receive the Redemption Price or the securities or
assets referred to in subsection (c), as the case may be. Within 10 days after
such action of the Board of Directors electing to redeem or exchange the Rights
pursuant to subsection (b) or (c), the Company shall give notice thereof to the
Rights Agent and the holders of the then outstanding Rights by mailing such
notice to all such holders at their 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 of the Company. 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 or exchange
will state the method by which the payment of the Redemption Price or the
exchange 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 23, other than
in connection with the acquisition or purchase of Common Shares of the Company
prior to the Distribution Date.
Section 24. 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) or (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, or (iii) to effect any reclassification of
its Preferred Shares (other than a reclassification involving only the
subdivision of outstanding Preferred Shares), or (iv) to effect any transaction
set forth in Section 13 hereof, or (v) to affect the liquidation, dissolution or
winding up of the Company, or (vi) to declare or pay any dividend on the Common
Shares of the Company payable in Common Shares of the Company or to effect a
subdivision, combination or consolidation of the Common Shares of the Company
(by reclassification or otherwise than by payment of dividends in Common Shares
of the Company), then, in each such case, the Company shall give to each holder
of a Right Certificate, in accordance with Section 25 hereof, a notice of such
proposed action, which shall specify the record date for the purposes of such
stock dividend, or distribution of rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, transaction, transfer,
liquidation, dissolution, or winding up is to take place and the date of
participation therein by the holders of the Common Shares of the Company 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 20
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
20 days prior to the date of the taking of such proposed action or the date of
participation therein by the holders of the Common Shares of the Company and/or
Preferred Shares, whichever shall be the earlier.
(b) In case the Shares Acquisition Date shall occur, then, in any such
case, the Company shall as soon as practicable thereafter give to each holder of
a Right Certificate, to the extent feasible and in accordance with Section 25
hereof, a notice of the occurrence of such event, which notice shall describe
the event and the consequences of the event to holders of Rights under Section
11(a)(ii) hereof.
Section 25. Notices. Notices or demands authorized by this Agreement to be
given or made by the Rights Agent or by the holder of any Right Certificate to
or on the Company shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is filed in writing with
the Rights Agent) as follows:
IDACORP, Inc.
1221 Idaho Street
Boise, Idaho 83707
Attention: 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 Bank of New York
101 Barclay Street
New York, New York 10007
Attention: James N. Dimino
---------
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 26. Supplements and Amendments. The Company and the Rights Agent
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 in regard to
matters or questions arising hereunder which the Company and the Rights Agent
may deem necessary or desirable and which shall be consistent with, and for the
purpose of fulfilling, the objectives of the Board of Directors in adopting this
Agreement; 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 exercisable Rights.
Section 27. Successors. All the covenants and provisions of this Agreement
by or for the benefit of the Company or the Rights Agent shall bind and inure to
the benefit of their respective successors and assigns hereunder.
Section 28. Benefits of this Agreement. 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 of the Company) 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 of the Company).
Section 29. 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 30. 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
Idaho 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 except for Sections 18, 19, 20 and 21 hereof which shall be
governed by and construed in accordance with the laws of the State of New York.
Section 31. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
Section 32. Descriptive Headings. Descriptive headings of the several
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
IDACORP, INC.
By: /s/ Robert W. Stahman
--------------------------
Name: Robert W. Stahman
Title: Vice President,
General Counsel and
Corporate Secretary
THE BANK OF NEW YORK
By: /s/ James N. Dimino
--------------------------
Name: James N. Dimino
Title: Assistant Vice
President
FORM OF ARTICLES OF AMENDMENT TO
RESTATED ARTICLES OF INCORPORATION
UPON ISSUANCE OF IDACORP, INC.'S
A SERIES PREFERRED STOCK
I. The name of the corporation is IDACORP, Inc. (the "Corporation").
II. The Board of Directors by duly authorized resolution on September 10,
1998, created a series of Preferred Stock with the following terms and
conditions, and the Restated Articles of Incorporation are hereby amended by the
addition to the provisions of Article V of the following paragraph A.
immediately before the heading "Section 4. Common Stock":
"A. The A Series Preferred Stock, without par value.
(1) Designation and Amount. There is hereby created the first series
of the Corporation's Preferred Stock, without par value, which shall be
designated as "A Series Preferred Stock" (the "A Series"), without par
value, and the number of shares constituting such series shall be
1,200,000.
(2) Dividends. The annual rate of dividends on shares of the A Series
shall be equal to the greater of (i) $1 or (ii) subject to the provision
for adjustment hereinafter set forth, 100 times the aggregate per share
amount of all dividends or other distributions, other than a dividend or
distribution payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise),
declared on the shares of 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 such share or fraction
thereof. In the event the Corporation shall at any time after the
Distribution Date (as defined in the Rights Agreement dated as of September
10, 1998, between the Corporation and the Rights Agent named therein)
declare or pay any dividend on the shares of 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)
into a greater or lesser number of shares of Common Stock, then, in each
such case, the amount to which holders of shares of the A Series were
entitled immediately prior to such event under clause (ii) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction, the
numerator of which shall be the number of shares of Common Stock
outstanding immediately after such event and the denominator of which shall
be the number of shares of Common Stock that were outstanding immediately
prior to such event. Dividends shall be cumulative payable quarterly on the
20th day of February, May, August and November in each year or otherwise as
the Board of Directors of the Corporation may determine (each such date
being referred to herein as a "Quarterly Dividend Payment Date"),
commencing with respect to each share or fraction thereof on the first
Quarterly Dividend Payment Date after the original issuance thereof, in the
per amount per share set forth above (rounded to the nearest cent).
Dividends shall accrue on each outstanding share of the A Series or
fraction thereof from the date of original issue of such share or fraction
thereof, unless such date of issue is a Quarterly Dividend Payment Date or
is a date after the record date for the determination of holders entitled
to receive a quarterly dividend and before the Quarterly Dividend Payment
Date therefor, in either of which events such dividends shall accrue from
such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall
not bear interest. Dividends paid on the shares of the A Series or fraction
thereof in an amount less than the total amount of such dividends at the
time accrued and payable on such shares or fraction thereof shall be
allocated pro rata on a share-by-share basis among all such shares or
fraction thereof at the time outstanding. The Board of Directors may fix a
record date for the determination of holders of shares of the A Series
entitled to receive payment of a dividend or distribution declared thereon.
(3) Redemption. The shares of the A Series shall not be redeemable.
(4) Liquidation. The amount payable upon shares of the A Series, in
the event of voluntary or involuntary liquidation shall be the greater of
(i) $100 per share or (ii) subject to the provision for adjustment set
forth in (2), above, 100 times the aggregate amount to be distributed per
share to the holders of the shares of Common Stock, plus, in either case an
amount equal to accrued and unpaid dividends to the date of payment. In the
event the Corporation shall at any time after the Distribution Date declare
or pay any dividend on the shares of 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)
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 the A Series
were entitled immediately prior to such event under clause (ii) of the
preceding sentence, shall be adjusted by multiplying such amount by a
fraction the numerator of which shall be the number of shares of Common
Stock outstanding immediately after such event and the denominator of which
shall be the number of shares of Common Stock outstanding immediately prior
to such event.
(5) Sinking Fund. There is no sinking fund for the redemption or
purchase of shares of the A Series.
(6) Conversion. Shares of the A Series are not, by their terms,
convertible or exchangeable.
(7) Voting Rights. At all meetings of the shareholders, each holder of
shares of the A Series shall have the following voting rights:
Subject to the provision for adjustment hereinafter set forth, each
share of the A Series shall entitle the holder thereof to 100 votes on all
matters submitted to a vote of the shareholders of the Corporation. In the
event the Corporation shall at any time after the Distribution Date declare
or pay any dividend on the shares of 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) 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 the A
Series were entitled immediately prior to such event shall be adjusted by
multiplying such number by a fraction, the numerator of which shall be the
number of shares of Common Stock outstanding immediately after such event
and the denominator of which shall be the number of shares of Common Stock
outstanding immediately prior to such event.
(8) Amendment. The Restated Articles of Incorporation shall not be
further amended in any manner which would materially alter or change the
powers, preferences or special rights of the A Series."
III. This amendment to the Restated Articles of Incorporation, made
pursuant to Article V, Section 3 of the Restated Articles of Incorporation, was
duly adopted by the Board of Directors of IDACORP, Inc. on September 10, 1998.
IN WITNESS WHEREOF, IDACORP, Inc. has caused these Articles of Amendment to
be executed and sealed by its duly authorized officers this [_____ day of
__________, _____].
--------------------------------
By:
Title:
Attest:
EXHIBIT B
Form of Right Certificate
Certificate No. R- _____ Rights
NOT EXERCISABLE AFTER SEPTEMBER 10, 2008, OR EARLIER IF
REDEMPTION OR EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO
REDEMPTION OR EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON OR
AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH
TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) AND ANY TRANSFEREE
OF SUCH RIGHTS SHALL BECOME NULL AND VOID.
Right Certificate
---------------------------
This certifies that ____________________, or registered assigns, is the
registered owner of the number of Rights set forth above, each of which entitles
the owner thereof, subject to the terms, provisions and conditions of the Rights
Agreement, dated as of September 10, 1998 (as amended from time to time, the
"Rights Agreement"), between IDACORP, Inc., an Idaho corporation (the
"Company"), and The Bank of New York (the "Rights Agent"), to purchase, subject
to any required regulatory approval, 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 City time, on September 10, 2008 (subject to earlier
redemption or exchange of the Rights by the Company, as set forth in the Rights
Agreement), at the shareholders services office of the Rights Agent, or at the
office of its successor as Rights Agent, one one-hundredth of a fully paid
nonassessable share of A Series Preferred Stock, without par value, (the
"Preferred Shares"), of the Company, at a purchase price of $95 per one
one-hundredth of a Preferred Share (the "Purchase Price"), upon presentation and
surrender of this Right Certificate with the Form of Election to Purchase and
related Certificate duly executed. The number of Rights evidenced by this Right
Certificate (and the number of one one-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 [___________, ___], based
on the Preferred Shares as constituted at such date. As provided in the Rights
Agreement, the Purchase Price and the number or amount of securities or other
assets 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 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 either the office or offices 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 may be redeemed or exchanged by the Company.
No fractional securities will be issued upon the exercise of any Right or
Rights evidenced hereby (other than fractions which are integral multiples of
one one-hundredth of such security, which may, at the election of the Company,
be evidenced by depositary receipts), but in lieu thereof a cash payment will be
made, as provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to vote or receive
dividends or be deemed for any purpose the holder of the Preferred Shares or of
any other securities of the Company 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 for the election of directors or
upon any matter submitted to shareholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of meetings or
other actions affecting shareholders (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.
WITNESS the facsimile signature of the proper officers of the Company and
its corporate seal.
Dated as of [______________, 19___].
ATTEST: IDACORP, Inc.
_______________________ By: ________________________
Countersigned:
By: ______________________
Authorized Signature
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:_____________________, 19___
-----------------------
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.
Certificate
-----------
The undersigned hereby certifies, for the benefit of the Company and other
holders of Rights, by checking the appropriate boxes, that:
(1) this Rights Certificate [ ] is [ ] is not being sold, assigned and
transferred by or on behalf of a Person who is or was an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person (as such terms are defined
pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it [ ]
did [ ] did not acquire the Rights evidenced by this Right Certificate from any
Person who is, was or subsequently became an Acquiring Person or an Affiliate or
Associate of Acquiring Person.
Dated: _____________, 19___ ______________________
Signature
Signature Guaranteed:
Form of Reverse Side of Right Certificate -- continued
FORM OF ELECTION TO PURCHASE
----------------------------
(To be executed if holder desires to
exercise the Right Certificate.)
To:
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: _____________, 19___
---------------------------------
Signature
Form of Reverse Side of Right Certificate -- continued
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.
Certificate
-----------
The undersigned hereby certifies, for the benefit of the Company and other
holders of Rights, by checking the appropriate boxes, that:
(1) the Rights evidenced by this Right Certificate [ ] are [ ] are not
being exercised by or on behalf of a Person who is or was an Acquiring Person or
an Affiliate or Associate of any such Acquiring Person (as such terms are
defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it [ ]
did [ ] did not acquire the Rights evidenced by this Right Certificate from any
Person who is, was or became an Acquiring Person or an Affiliate or Associate of
an Acquiring Person.
Dated: ____________, 19___ ______________________
Signature
Signature Guaranteed:
Form of Reverse Side of Right Certificate -- continued
NOTICE
------
The signature in the foregoing Forms of Assignment and Election to Purchase
and Certificate 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.
