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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
WILSHIRE OIL COMPANY OF TEXAS
(Exact name of registrant as specified in its charter)
Delaware 84-0513668
(State of incorporation or organization) (IRS Employer
Identification
No.)
921 Bergen Avenue, Jersey City, New Jersey 07306
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the
Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
Stock Purchase Rights New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the
Act:
None
(Title of Class)
Exhibit Index is on Page 5
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Item 1. Description of Registrant's Securities to be
Registered.
On June 21, 1996, the Board of Directors of Wilshire Oil
Company of Texas, a Delaware corporation (the "Company"), declared a
dividend payable on August 5, 1996 of one right (a "Right") for each
outstanding share of common stock, par value $1.00 per share, of the
Company held of record on July 6, 1996, or issued thereafter and prior to
the Separation Time (as defined in the Rights Agreement referred to below)
and thereafter pursuant to options and convertible securities outstanding
at the Separation Time. The Rights will be issued pursuant to a
Stockholder Protection Rights Agreement, dated as of June 21, 1996 (the
"Rights Agreement"), between the Company and Continental Stock Transfer &
Company, as Rights Agent.
The description of the Rights contained in the Company's
Current Report on Form 8-K dated July 8, 1996 is hereby incorporated by
reference herein.
The Rights Agreement (which includes as Exhibit A the forms of
Rights Certificate and Election to Exercise and as Exhibit B the form of
Certificate of Designations and Terms of the Participating Preferred Stock)
is attached hereto as an exhibit and is hereby incorporated herein by
reference. The description of the Rights incorporated by reference to the
Company's Current Report on Form 8-K, dated July 8, 1996 is qualified in
its entirety by reference to the Rights Agreement and such exhibits
thereto.
Item 2. Exhibits.
Exhibit No. Description
(1) Rights Agreement.
(2) Forms of Rights Certificate and of Election to
Exercise, included in Exhibit A to the Rights
Agreement.
(3) Form of Certificate of Designations and Terms of
Participating Preferred Stock, included in
Exhibit B to the Rights Agreement.
(4) Restated Certificate of Incorporation of Wilshire
Oil Company of Texas, as amended. (Incorporated by
reference to Exhibit 3.1 of Item 14 of the
Registrant's Annual Report on
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Form 10-K for the year ended December 31, 1992).
(5) Amended By-laws of Wilshire Oil Company of Texas
(Incorporated by reference to Exhibit (3)(ii) of
Item 7 of the Registrant's Current Report on
Form 8-K, dated February 13, 1996).
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SIGNATURE
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, the registrant has duly
caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized.
WILSHIRE OIL COMPANY OF TEXAS
By /s/S. Wilzig Izak
Name: S. Wilzig Izak
Title: Chief Executive Officer
Date: July 10, 1996
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially Numbered
Exhibit No. Description Page
<C> <S> <C>
(1) Stockholder Protection Rights Agreement, dated as of 6
June 21, 1996 (the "Rights Agreement"), between Wilshire
Oil Company of Texas and Continental Stock Transfer &
Company, as Rights Agent.
(2) Forms of Rights Certificate and of Election to Exercise,
included in Exhibit A to the Rights Agreement.
(3) Form of Certificate of Designations and Terms of
Participating Preferred Stock of the Company, included in
Exhibit B to the Rights Agreement.
(4) Restated Certificate of Incorporation of Wilshire Oil
Company of Texas, as amended. (Incorporated by reference
to Exhibit 3.1 of Item 14 of the Registrant's Annual
Report on Form 10-K for the year ended December 31,
1992).
(5) Amended By-laws of Wilshire Oil Company of Texas
(Incorporated by reference to Exhibit (3)(ii) of Item 7
of the Registrant's Current Report on Form 8-K, dated
February 13, 1996).
</TABLE>
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STOCKHOLDER PROTECTION RIGHTS AGREEMENT
dated as of
June 21, 1996
between
WILSHIRE OIL COMPANY OF TEXAS
and
CONTINENTAL STOCK TRANSFER & COMPANY,
as Rights Agent
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STOCKHOLDER PROTECTION RIGHTS AGREEMENT
Table of Contents
Page
Article I
CERTAIN DEFINITIONS
Section 1.1 Certain Definitions .............................. 2
Article II
THE RIGHTS
Section 2.1 Summary of Rights ............................... 10
Section 2.2 Legend on Common Stock
Certificates .................................. 11
Section 2.3 Exercise of Rights;
Separation of Rights .......................... 11
Section 2.4 Adjustments to Exercise Price;
Number of Rights .............................. 15
Section 2.5 Date on Which Exercise is
Effective ..................................... 17
Section 2.6 Execution, Authentication, Delivery
and Dating of Rights
Certificates .................................. 17
Section 2.7 Registration, Registration of
Transfer and Exchange ......................... 18
Section 2.8 Mutilated, Destroyed, Lost and
Stolen Rights Certificates .................... 19
Section 2.9 Persons Deemed Owners ........................... 20
Section 2.10 Delivery and Cancellation of
Certificates .................................. 21
Section 2.11 Agreement of Rights Holders ..................... 21
Article III
ADJUSTMENTS TO THE RIGHTS IN THE EVENT OF
CERTAIN TRANSACTIONS
Section 3.1 Flip-in ......................................... 22
Section 3.2 Flip-over ....................................... 26
Article IV
THE RIGHTS AGENT
Section 4.1 General ......................................... 27
Section 4.2 Merger or Consolidation or Change of
Name of Rights Agent .......................... 28
Section 4.3 Duties of Rights Agent .......................... 29
Section 4.4 Change of Rights Agent .......................... 32
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Article V
MISCELLANEOUS
Section 5.1 Redemption...................................... 33
Section 5.2 Expiration ..................................... 34
Section 5.3 Issuance of New Rights
Certificates ................................. 34
Section 5.4 Supplements and Amendments ..................... 35
Section 5.5 Fractional Shares .............................. 36
Section 5.6 Rights of Action ............................... 36
Section 5.7 Holder of Rights Not Deemed a
Stockholder .................................. 37
Section 5.8 Notice of Proposed Actions ..................... 37
Section 5.9 Notices ........................................ 38
Section 5.10 Suspension of Exercisability ................... 39
Section 5.11 Costs of Enforcement ........................... 39
Section 5.12 Successors ..................................... 39
Section 5.13 Benefits of this Agreement ..................... 40
Section 5.14 Determination and Actions
by the Board of Directors, etc. .............. 40
Section 5.15 Descriptive Headings ........................... 40
Section 5.16 Governing Law .................................. 40
Section 5.17 Counterparts ................................... 41
Section 5.18 Severability ................................... 41
EXHIBITS
Exhibit A Form of Rights Certificate
(Together with Form of
Election to Exercise)
Exhibit B Form of Certificate of
Designations and Terms of
Series A Participating Preferred Stock
of Wilshire Oil Company of Texas
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STOCKHOLDER PROTECTION RIGHTS AGREEMENT
STOCKHOLDER PROTECTION RIGHTS AGREEMENT (as it may be
amended from time to time, this "Agreement"), dated as of June 21,
1996, between WILSHIRE OIL COMPANY OF TEXAS, a Delaware corporation
(the "Company"), and Continental Stock Transfer & Company, a limited
purpose trust company organized under the banking laws of the State of
New York, as Rights Agent (the "Rights Agent", which term shall include
any successor Rights Agent hereunder).
WITNESSETH:
WHEREAS, the Board of Directors of the Company has
(a) authorized and declared a dividend of one right ("Right") in
respect of each share of Common Stock (as hereinafter defined) held of
record as of July 6, 1996 (the "Record Time") and (b) as provided in
Section 2.4, authorized the issuance of one Right in respect of each
share of Common Stock issued after the Record Time and prior to the
Separation Time (as hereinafter defined) and, to the extent provided in
Section 5.3, each share of Common Stock issued after the Separation
Time;
WHEREAS, each Right entitles the holder thereof, after the
Separation Time, to purchase securities of the Company (or, in certain
cases, of certain other entities) pursuant to the terms and subject to
the terms and conditions set forth herein; and
WHEREAS, the Company desires to appoint the Rights Agent to
act on behalf of the Company, and the Rights Agent is willing so to
act, in connection with the issuance, transfer, exchange, replacement
and redemption of Rights Certificates (as hereinafter defined), the
exercise of Rights and other matters referred to herein;
NOW THEREFORE, in consideration of the premises and the
respective agreements set forth herein, the parties hereby agree as
follows:
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ARTICLE I
CERTAIN DEFINITIONS
1.1 Certain Definitions. For purposes of this Agreement,
the following terms have the meanings indicated:
"Acquiring Person" shall mean any Person who is a
Beneficial Owner of 15% or more of the outstanding shares of Common
Stock; provided, however, that the term "Acquiring Person" shall not
include any Person (i) who is the Beneficial Owner of 10% or more of
the outstanding shares of Common Stock as of the date of this Agreement
as long as such Person does not become the Beneficial Owner of 25% or
more of the outstanding shares of Common Stock or who shall become the
Beneficial Owner of 15% or more, or, in the case of a Person who is the
Beneficial Owner of 10% or more of the outstanding shares of Common
Stock as of the date of this Agreement, 25% or more, of the outstanding
shares of Common Stock solely as a result of an acquisition by the
Company of shares of Common Stock, until such time hereafter or
thereafter as any of such Persons shall become the Beneficial Owner
(other than by means of a stock dividend or stock split) of any
additional shares of Common Stock, (ii) who is the Beneficial Owner of
15% or more of the outstanding shares of Common Stock but who acquired
Beneficial Ownership of shares of Common Stock without any plan or
intention to seek or affect control of the Company, if such Person
promptly enters into an irrevocable commitment promptly to divest, and
thereafter promptly divests (without exercising or retaining any power,
including voting, with respect to such shares), sufficient shares of
Common Stock (or securities convertible into, exchangeable into or
exercisable for Common Stock) so that such Person ceases to be the
Beneficial Owner of 15% or more of the outstanding shares of Common
Stock or (iii) who Beneficially Owns shares of Common Stock consisting
solely of one or more of (A) shares of Common Stock Beneficially Owned
pursuant to the grant or exercise of an option granted
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to such Person (an "Option Holder") by the Company in connection with
an agreement to merge with, or acquire, the Company entered into prior
to a Flip-in Date, (B) shares of Common Stock (or securities
convertible into, exchangeable into or exercisable for Common Stock),
Beneficially Owned by such Option Holder or its Affiliates or
Associates at the time of the grant of such option or (C) shares of
Common Stock (or securities convertible into, exchangeable into or
exercisable for Common Stock) acquired by Affiliates or Associates of
such Option Holder after the time of such grant which, in the
aggregate, amount to less than 1% of the outstanding shares of Common
Stock. In addition, the Company, any wholly-owned Subsidiary of the
Company and any employee stock ownership or other employee benefit plan
of the Company or a wholly-owned Subsidiary of the Company shall not be
an Acquiring Person.
"Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 under the Exchange Act,
as such Rule is in effect on the date of this Agreement.
A Person shall be deemed the "Beneficial Owner", and to
have "Beneficial Ownership" of, and to "Beneficially Own", any securi-
ties as to which such Person or any of such Person's Affiliates or
Associates is or may be deemed to be the beneficial owner of pursuant
to Rule 13d-3 and 13d-5 under the Exchange Act, as such Rules are in
effect on the date of this Agreement as well as any securities as to
which such Person or any of such Person's Affiliates or Associates has
the right to become Beneficial Owner (whether such right is exercisable
immediately or only after the passage of time or the occurrence of
conditions) pursuant to any agreement, arrangement or understanding, or
upon the exercise of conversion rights, exchange rights, rights (other
than the Rights), warrants or options, or otherwise; provided, however,
that a Person shall not be deemed the "Beneficial Owner", or to have
"Beneficial Ownership" of, or to
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"Beneficially Own", any security (i) solely because such security has
been tendered pursuant to a tender or exchange offer made by such
Person or any of such Person's Affiliates or Associates until such
tendered security is accepted for payment or exchange or (ii) solely
because such Person or any of such Person's Affiliates or Associates
has or shares the power to vote or direct the voting of such security
pursuant to a revocable proxy given in response to a public proxy or
consent solicitation made to more than ten holders of shares of a class
of stock of the Company registered under Section 12 of the Exchange Act
and pursuant to, and in accordance with, the applicable rules and
regulations under the Exchange Act, except if such power (or the
arrangements relating thereto) is then reportable under Item 6 of
Schedule 13D under the Exchange Act. Notwithstanding the foregoing, no
officer or director of the Company shall be deemed to Beneficially Own
any securities of any other Person by virtue of any actions such
officer or director takes in such capacity. For purposes of this
Agreement, in determining the percentage of the outstanding shares of
Common Stock with respect to which a Person is the Beneficial Owner,
all shares as to which such Person is deemed the Beneficial Owner shall
be deemed outstanding.
"Business Day" shall mean any day other than a Saturday,
Sunday or a day on which banking institutions in The City of New York
are generally authorized or obligated by law or executive order to
close.
"Close of business" on any given date shall mean 5:00 p.m.
New York City time on such date or, if such date is not a Business Day,
5:00 p.m. New York City time on the next succeeding Business Day.
"Common Stock" shall mean the shares of common stock, par
value $1.00 per share, of the Company.
"Control" shall have the meaning set forth in the
definition of "Flip-over Transaction or Event" set forth in this
Section 1.1.
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"Election to Exercise" shall have the meaning set forth in
Section 2.3(d) hereof.
"Exchange Act" shall mean the Securities Exchange Act of
1934 as amended from time to time or any federal statute from time to
time in effect that has replaced such statute. Any reference in this
Agreement to a provision of the Exchange Act or a rule or regulation
promulgated thereunder shall mean, unless otherwise specified, such
provision, rule or regulation as amended from time to time or any
provision of a federal law, or any federal rule or regulation from time
to time in effect that has replaced such provision, rule or regulation.
"Exchange Ratio" shall have the meaning set forth in
Section 3.1(c) hereof.
"Exchange Time" shall mean the time at which the right to
exercise the Rights shall terminate pursuant to Section 3.1(c) hereof.
"Exercise Price" shall mean, as of any date, the price at
which a holder may purchase the securities issuable upon exercise of
one whole Right. Until adjustment thereof in accordance with the terms
hereof, the Exercise Price shall equal $25.00.
"Expansion Factor" shall have the meaning set forth in
Section 2.4(a) hereof.
"Expiration Time" shall mean the earliest of (i) the
Exchange Time, (ii) the Redemption Time, (iii) the close of business on
the tenth anniversary of the Record Time and (iv) the effective time of
a consolidation, merger or share exchange (each a "Business
Combination") of the Company into another entity pursuant to an
agreement entered into prior to a Flip-in Date.
"Flip-in Date" shall mean any Stock Acquisition Date or
such later date as the Board of Directors of the Company may from time
to time fix by resolution adopted prior to any Flip-in Date that would
otherwise have occurred.
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"Flip-over Entity," for purposes of Section 3.2, shall mean
(i) in the case of a Flip-over Transaction or Event described in clause
(i) of the definition thereof, the Person issuing any securities into
which shares of Common Stock are being converted or exchanged and, if
no such securities are being issued, the other party to such Flip-over
Transaction or Event and (ii) in the case of a Flip-over Transaction or
Event referred to in clause (ii) of the definition thereof, the Person
receiving the greatest portion of the assets or earning power being
transferred in such Flip-over Transaction or Event, provided in all
cases if such Person is a Subsidiary of a corporation, the ultimate
parent corporation shall be the Flip-over Entity.
"Flip-over Stock" shall mean the capital stock (or similar
equity interest) with the greatest voting power in respect of the
election of directors (or other persons similarly responsible for
direction of the business and affairs) of the Flip-Over Entity.
"Flip-over Transaction or Event" shall mean a transaction
or series of transactions after a Flip-in Date in which, directly or
indirectly, (i) the Company shall consolidate or merge or participate
in a binding share exchange with any other Person if, at the time of
the consolidation, merger or share exchange or at the time the Company
enters into any agreement with respect to any such consolidation,
merger or share exchange, the Acquiring Person Controls the Board of
Directors of the Company and either (A) any term of any agreement or
arrangement concerning the treatment of shares of capital stock in such
consolidation, merger or share exchange relating to the Acquiring
Person is not identical to the terms and arrangements relating to other
holders of the Common Stock or (B) the Person with whom the transaction
or series of transactions occurs is the Acquiring Person or an
Affiliate or Associate of an Acquiring Person or (ii) the Company shall
sell or otherwise transfer (or one or more of its
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Subsidiaries shall sell or otherwise transfer) assets (A) aggregating
more than 50% of the assets (measured by either book value or fair
market value) or (B) generating more than 50% of the operating income
or cash flow, of the Company and its Subsidiaries taken as a whole to
any Person (other than the Company or one or more of its wholly owned
Subsidiaries) or to two or more such Persons which are Affiliates or
Associates or otherwise acting in concert, if, at the time of the entry
by the Company (or any such Subsidiary) into an agreement with respect
to such sale or transfer of assets, the Acquiring Person controls the
Board of Directors of the Company. An Acquiring Person shall be deemed
to "Control" the Company's Board of Directors when, following a Flip-in
Date, the Persons who were directors of the Company before the Flip-in
Date shall cease to constitute a majority of the Company's Board of
Directors.
"holder" shall have the meaning set forth in Section 2.9
hereof.
"Market Price" per share of any securities on any date
shall mean the average of the daily closing prices per share of such
securities (determined as described below) on each of the
20 consecutive Trading Days through and including the Trading Day imme-
diately preceding such date; provided, however, that if an event of a
type analogous to any of the events described in Section 2.4 hereof
shall have caused the closing prices used to determine the Market Price
on any Trading Days during such period of 20 Trading Days not to be
fully comparable with the closing price on such date, each such closing
price so used shall be appropriately adjusted in order to make it fully
comparable with the closing price on such date. The closing price per
share of any securities on any date shall be the last reported sale
price, regular way, or, in case no such sale takes place or is quoted
on such date, the average of the closing bid and ask prices, regular
way, for each share of such securities, in either case as reported in
the principal consolidated
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transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange, or, if the
securities are not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal
national securities exchange on which the securities are listed or
admitted to trading or, if the securities are not listed or admitted to
trading on any national securities exchange, as reported by the
National Association of Securities Dealers Automated Quotation System
or such other system then in use, or, if on any such date the
securities are not listed or admitted to trading on any national
securities exchange or quoted by any such organization, the average of
the closing bid and ask prices as furnished by a professional market
maker making a market in the securities selected by the Board of
Directors of the Company; provided, however, that if on any such date
the securities are not listed or admitted to trading on a national
securities exchange or traded in the over-the-counter market, the
closing price per share of such securities on such date shall mean the
fair value per share of such securities on such date as determined in
good faith by the Board of Directors of the Company, after consultation
with a nationally recognized investment banking firm, and set forth in
a certificate delivered to the Rights Agent.
"Person" shall mean any individual, firm, partnership,
association, group (as such term is used in Rule 13d-5 under the
Exchange Act, as such Rule is in effect on the date of this Agreement),
company, corporation or other entity.
"Preferred Stock" shall mean the series of Series A
Participating Preferred Stock, par value $1.00 per share, of the
Company created by a Certificate of Designations and Terms in
substantially the form set forth in Exhibit B hereto, appropriately
completed.
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"Redemption Price" shall mean an amount equal to one cent,
$0.01.
"Redemption Time" shall mean the time at which the right to
exercise the Rights shall terminate pursuant to Section 5.1 hereof.
"Rights Certificate" shall have the meaning set forth in
Section 2.3(c) hereof.
"Rights Register" shall have the meaning set forth in
Section 2.7(a) hereof.
"Separation Time" shall mean the close of business on the
earlier of (i) the tenth business day (or such later date as the Board
of Directors of the Company may from time to time fix by resolution
adopted prior to any Separation Time that would otherwise have
occurred) after the date on which any Person commences a tender or
exchange offer which, if consummated, would result in such Person's
becoming an Acquiring Person and (ii) the Flip-in Date; provided, that
if the foregoing results in the Separation Time being prior to the
Record Time, the Separation Time shall be the Record Time and provided
further, that if any tender or exchange offer referred to in clause (i)
of this paragraph is cancelled, terminated or otherwise withdrawn prior
to the Separation Time without the purchase of any shares of Common
Stock pursuant thereto, such offer shall be deemed, for purposes of
this paragraph, never to have been made.
"Stock Acquisition Date" shall mean the first date of
public announcement by the Company (by any means) that an Acquiring
Person has become such.
"Subsidiary" of any specified Person shall mean any
corporation or other entity of which a majority of the voting power of
the equity securities or a majority of the equity interest is
Beneficially Owned, directly or indirectly, by such Person.
"Trading Day," when used with respect to any securities,
shall mean a day on which the New York Stock Exchange is open for the
transaction of business or, if such
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securities are not listed or admitted to trading on the New York Stock
Exchange, a day on which the principal national securities exchange on
which such securities are listed or admitted to trading is open for the
transaction of business or, if such securities are not listed or
admitted to trading on any national securities exchange, a Business
Day.
ARTICLE II
THE RIGHTS
2.1 Summary of Rights. As soon as practicable after the
Record Time, the Company will mail a letter summarizing the terms of
the Rights to each holder of record of Common Stock as of the Record
Time, at such holder's address as shown by the records of the Company.
2.2 Legend on Common Stock Certificates. Certificates for
the Common Stock issued after the Record Time but prior to the Separa-
tion Time shall evidence one Right for each share of Common Stock
represented thereby and shall have impressed on, printed on, written on
or otherwise affixed to them the following legend:
Until the Separation Time (as defined in the Rights Agreement
referred to below), this certificate also evidences and entitles
the holder hereof to certain Rights as set forth in a Rights
Agreement, dated as of June 21, 1996 (as such may be amended from
time to time, the "Rights Agreement"), between Wilshire Oil
Company of Texas (the "Company") and Continental Stock Transfer &
Company, as Rights Agent, the terms of which are hereby
incorporated herein by reference and a copy of which is on file
at the principal executive offices of the Company. Under certain
circumstances, as set forth in the Rights Agreement, such Rights
may be redeemed, may become exercisable for securities or assets
of the Company or another entity, may be exchanged for shares of
Common Stock or other securities or assets of the Company, may
expire, may become void (if they are "Beneficially Owned" by an
"Acquiring Person" or an Affiliate or Associate thereof, as such
terms are defined in the Rights Agreement, or by any transferee
of any of the foregoing) or may be evidenced by separate
certificates and may no longer be evidenced by this certificate.
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The Company will mail or arrange for the mailing of a copy of the
Rights Agreement to the holder of this certificate without charge
within five days after the receipt of a written request therefor.
Certificates representing shares of Common Stock that are issued and
outstanding at the Record Time shall evidence one Right for each share
of Common Stock evidenced thereby notwithstanding the absence of the
foregoing legend.
2.3 Exercise of Rights; Separation of Rights.
(a) Subject to Sections 3.1, 5.1 and 5.10 and subject to adjustment as
herein set forth, each Right will entitle the holder thereof, after the
Separation Time and prior to the Expiration Time, to purchase, for the
Exercise Price, one one-hundredth (1/100) of a share of Preferred
Stock.
(b) Until the Separation Time, (i) no Right may be
exercised and (ii) each Right will be evidenced by the certificate for
the associated share of Common Stock (together, in the case of
certificates issued prior to the Record Time, with the letter mailed to
the record holder thereof pursuant to Section 2.1) and will be
transferable only together with, and will be transferred by a transfer
(whether with or without such letter) of, such associated share of
Common Stock.
(c) Subject to the terms and conditions hereof, after the
Separation Time and prior to the Expiration Time, the Rights (i) may be
exercised and (ii) may be transferred independently of shares of Common
Stock. Promptly following the Separation Time, the Rights Agent will
mail to each holder of record of Common Stock as of the Separation Time
(other than any Person whose Rights have become void pursuant to
Section 3.1(b)), at such holder's address as shown on the books and
records of the Company (the Company hereby agreeing to furnish copies
of such records to the Rights Agent for this purpose), (x) a certif-
icate (a "Rights Certificate") in substantially the form of Exhibit A
hereto, appropriately completed, representing the number of Rights
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held by such holder at the Separation Time and having such marks of
identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate and as
shall not be inconsistent with the provisions of this Agreement, or as
may be required to comply with any law or with any rule or regulation
made pursuant thereto or with any rule or regulation of any national
securities exchange or quotation system on which the Rights may from
time to time be listed or traded, or to conform to usage, and (y) a
disclosure statement describing the Rights.
(d) Subject to the terms and conditions hereof, Rights
may be exercised on any Business Day after the Separation Time and
prior to the Expiration Time by submitting to the Rights Agent the
Rights Certificate evidencing such Rights with an Election to Exercise
(an "Election to Exercise") substantially in the form attached to the
Rights Certificate duly completed, accompanied by payment in cash, or
by certified or official bank check or money order payable to the order
of the Company, of a sum equal to the Exercise Price multiplied by the
number of Rights being exercised and a sum sufficient to cover any
transfer tax or charge which may be payable in respect of any transfer
involved in the transfer or delivery of Rights Certificates or the
issuance or delivery of certificates for shares or depositary receipts
(or both) in a name other than that of the holder of the Rights being
exercised.
(e) Upon receipt of a Rights Certificate, with an
Election to Exercise accompanied by payment as set forth in
Section 2.3(d), and subject to the terms and conditions hereof, the
Rights Agent will thereupon promptly (i)(A) requisition from a transfer
agent stock certificates evidencing such number of shares or other
securities to be purchased (the Company hereby irrevocably authorizing
its transfer agents to comply with all such requisitions) and (B) if
the Company elects pursuant to Section 5.5 not to
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issue certificates representing fractional shares, requisition from the
depositary selected by the Company depositary receipts representing the
fractional shares to be purchased or requisition from the Company the
amount of cash to be paid in lieu of fractional shares in accordance
with Section 5.5 and (ii) after receipt of such certificates, deposi-
tary receipts and/or cash, deliver the same to or upon the order of the
registered holder of such Rights Certificate, registered (in the case
of certificates or depositary receipts) in such name or names as may be
designated by such holder.
(f) In case the holder of any Rights shall exercise less
than all the Rights evidenced by such holder's Rights Certificate, a
new Rights Certificate evidencing the Rights remaining unexercised will
be issued by the Rights Agent to such holder or to such holder's duly
authorized assigns.
(g) The Company covenants and agrees that it will
(i) take all such action as may be necessary to ensure that all shares
delivered upon exercise of Rights shall, at the time of delivery of the
certificates for such shares (subject to payment of the Exercise
Price), be duly and validly authorized, executed, issued and delivered
and fully paid and nonassessable; (ii) take all such action as may be
necessary to comply with any applicable requirements of the Securities
Act of 1933 or the Exchange Act, and the rules and regulations
thereunder, and any other applicable law, rule or regulation, in
connection with the issuance of any shares upon exercise of Rights; and
(iii) pay when due and payable any and all federal and state transfer
taxes and charges which may be payable in respect of the original
issuance or delivery of the Rights Certificates or of any shares issued
upon the exercise of Rights, provided, that the Company shall not be
required to pay any transfer tax or charge which may be payable in
respect of any transfer involved in the transfer or delivery of Rights
Certificates
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<PAGE> 14
or the issuance or delivery of certificates for shares in a name other
than that of the holder of the Rights being transferred or exercised.
2.4 Adjustments to Exercise Price; Number of Rights.
(a) In the event the Company shall at any time after the Record Time
and prior to the Separation Time (i) declare or pay a dividend on
Common Stock payable in Common Stock, (ii) subdivide the outstanding
Common Stock or (iii) combine the outstanding Common Stock into a
smaller number of shares of Common Stock, (x) the Exercise Price in
effect after such adjustment will be equal to the Exercise Price in
effect immediately prior to such adjustment divided by the number of
shares of Common Stock (the "Expansion Factor") that a holder of one
share of Common Stock immediately prior to such dividend, subdivision
or combination would hold thereafter as a result thereof and (y) each
Right held prior to such adjustment will become that number of Rights
equal to the Expansion Factor, and the adjusted number of Rights will
be deemed to be distributed among the shares of Common Stock with
respect to which the original Rights were associated (if they remain
outstanding) and the shares issued in respect of such dividend,
subdivision or combination, so that each such share of Common Stock
will have exactly one Right associated with it. Each adjustment made
pursuant to this paragraph shall be made as of the payment or effective
date for the applicable dividend, subdivision or combination.
In the event the Company shall at any time after the Record
Time and prior to the Separation Time issue any shares of Common Stock
otherwise than in a transaction referred to in the preceding paragraph,
each such share of Common Stock so issued shall automatically have one
new Right associated with it, which Right shall be evidenced by the
certificate representing such share. To the extent provided in Section
5.3, Rights shall be issued by the
<PAGE>
<PAGE> 15
Company in respect of shares of Common Stock that are issued or sold by
the Company after the Separation Time.
(b) In the event the Company shall at any time after the
Record Time and prior to the Separation Time issue or distribute any
securities or assets in respect of, in lieu of or in exchange for
Common Stock (other than pursuant to a regular periodic cash dividend
or a dividend paid solely in Common Stock) whether by dividend, in a
reclassification or recapitalization (including any such transaction
involving a merger, consolidation or share exchange), or otherwise, the
Company shall make such adjustments, if any, in the Exercise Price,
number of Rights and/or securities or other property purchasable upon
exercise of Rights as the Board of Directors of the Company, in its
sole discretion, may deem to be appropriate under the circumstances in
order to adequately protect the interests of the holders of Rights
generally, and the Company and the Rights Agent shall amend this
Agreement as necessary to provide for such adjustments.
(c) Each adjustment to the Exercise Price made pursuant to
this Section 2.4 shall be calculated to the nearest whole cent.
Whenever an adjustment to the Exercise Price is made pursuant to this
Section 2.4, the Company shall (i) promptly prepare a certificate
setting forth such adjustment and a brief statement of the facts
accounting for such adjustment and (ii) promptly file with the Rights
Agent and with each transfer agent for the Common Stock a copy of such
certificate.
(d) Rights Certificates shall represent the securities
purchasable under the terms of this Agreement, including any adjustment
or change in the securities purchasable upon exercise of the Rights,
even though such certificates may continue to express the securities
purchasable at the time of issuance of the initial Rights Certificates.
<PAGE>
<PAGE> 16
2.5 Date on Which Exercise is Effective. Each person in
whose name any certificate for securities is issued upon the exercise
of Rights shall for all purposes be deemed to have become the holder of
record of the securities represented thereby on, and such certificate
shall be dated, the date upon which the Rights Certificate evidencing
such Rights was duly surrendered and payment of the Exercise Price for
such Rights (and any applicable taxes and other governmental charges
payable by the exercising holder hereunder) was made; provided,
however, that if the date of such surrender and payment is a date upon
which the stock transfer books of the Company are closed, such person
shall be deemed to have become the record holder of such securities on,
and such certificate shall be dated, the next succeeding Business Day
on which the stock transfer books of the Company are open.
2.6 Execution, Authentication, Delivery and Dating of
Rights Certificates. (a) The Rights Certificates shall be executed on
behalf of the Company by its Chairman of the Board, President,
Treasurer or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Rights
Certificates may be manual or facsimile.
Rights Certificates bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of
the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to
the countersignature and delivery of such Rights Certificates.
Promptly after the Separation Time, the Company will notify
the Rights Agent of such Separation Time and will deliver Rights
Certificates executed by the Company to the Rights Agent for counter-
signature, and, subject to Section 3.1(b), the Rights Agent shall
manually countersign
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<PAGE> 17
and deliver such Rights Certificates to the holders of the Rights
pursuant to Section 2.3(c) hereof. No Rights Certificate shall be
valid for any purpose unless manually countersigned by the Rights
Agent.
(b) Each Rights Certificate shall be dated the date of
countersignature thereof.
2.7 Registration, Registration of Transfer and Exchange.
(a) After the Separation Time, the Company will cause to be kept a
register (the "Rights Register") in which, subject to such reasonable
regulations as it may prescribe, the Company will provide for the
registration and transfer of Rights. The Rights Agent is hereby
appointed "Rights Registrar" for the purpose of maintaining the Rights
Register for the Company and registering Rights and transfers of Rights
after the Separation Time as herein provided. In the event that the
Rights Agent shall cease to be the Rights Registrar, the Rights Agent
will have the right to examine the Rights Register at all reasonable
times after the Separation Time.
After the Separation Time and prior to the Expiration Time,
upon surrender for registration of transfer or exchange of any Rights
Certificate, and subject to the provisions of Section 2.7(c) and (d),
the Company will execute, and the Rights Agent will countersign and
deliver, in the name of the holder or the designated transferee or
transferees, as required pursuant to the holder's instructions, one or
more new Rights Certificates evidencing the same aggregate number of
Rights as did the Rights Certificate so surrendered.
(b) Except as otherwise provided in Section 3.1(b), all
Rights issued upon any registration of transfer or exchange of Rights
Certificates shall be the valid obligations of the Company, and such
Rights shall be entitled to the same benefits under this Agreement as
the
<PAGE>
<PAGE> 18
Rights surrendered upon such registration of transfer or exchange.
(c) Every Rights Certificate surrendered for registration
of transfer or exchange shall be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company or
the Rights Agent, as the case may be, duly executed by the holder
thereof or such holder's attorney duly authorized in writing. As a
condition to the issuance of any new Rights Certificate under this
Section 2.7, the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
relation thereto.
(d) The Company shall not be required to register the
transfer or exchange of any Rights after such Rights have become void
under Section 3.1(b), been exchanged under Section 3.1(c) or been
redeemed under Section 5.1.
2.8 Mutilated, Destroyed, Lost and Stolen Rights
Certificates. (a) If any mutilated Rights Certificate is surrendered
to the Rights Agent prior to the Expiration Time, then, subject to
Sections 3.1(b), 3.1(c) and 5.1, the Company shall execute and the
Rights Agent shall countersign and deliver in exchange therefor a new
Rights Certificate evidencing the same number of Rights as did the
Rights Certificate so surrendered.
(b) If there shall be delivered to the Company and the
Rights Agent prior to the Expiration Time (i) evidence to their
satisfaction of the destruction, loss or theft of any Rights
Certificate and (ii) such security or indemnity as may be required by
them to save each of them and any of their agents harmless, then,
subject to Sections 3.1(b), 3.1(c) and 5.1 and in the absence of notice
to the Company or the Rights Agent that such Rights Certificate has
been acquired by a bona fide purchaser, the Company shall execute and
upon its request the Rights Agent shall countersign and deliver, in
lieu of any such destroyed, lost
<PAGE>
<PAGE> 19
or stolen Rights Certificate, a new Rights Certificate evidencing the
same number of Rights as did the Rights Certificate so destroyed, lost
or stolen.
(c) As a condition to the issuance of any new Rights
Certificate under this Section 2.8, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Rights Agent) connected therewith.
(d) Every new Rights Certificate issued pursuant to this
Section 2.8 in lieu of any mutilated, destroyed, lost or stolen Rights
Certificate shall evidence an original additional contractual
obligation of the Company, whether or not the mutilated, destroyed,
lost or stolen Rights Certificate shall be at any time enforceable by
anyone, and, subject to Section 3.1(b), shall be entitled to all the
benefits of this Agreement equally and proportionately with any and all
other Rights duly issued hereunder.
2.9 Persons Deemed Owners. Prior to due presentment of a
Rights Certificate (or, prior to the Separation Time, the associated
Common Stock certificate) for registration of transfer, the Company,
the Rights Agent and any agent of the Company or the Rights Agent may
deem and treat the person in whose name such Rights Certificate (or,
prior to the Separation Time, such Common Stock certificate) is
registered as the absolute owner thereof and of the Rights evidenced
thereby for all purposes whatsoever, including the payment of the
Redemption Price and neither the Company nor the Rights Agent shall be
affected by any notice to the contrary. As used in this Agreement,
unless the context otherwise requires, the term "holder" of any Rights
shall mean the registered holder of such Rights (or, prior to the
Separation Time, the associated shares of Common Stock).
<PAGE>
<PAGE> 20
2.10 Delivery and Cancellation of Certificates. All
Rights Certificates surrendered upon exercise or for registration of
transfer or exchange shall, if surrendered to any person other than the
Rights Agent, be delivered to the Rights Agent and, in any case, shall
be promptly cancelled by the Rights Agent. The Company may at any time
deliver to the Rights Agent for cancellation any Rights Certificates
previously countersigned and delivered hereunder which the Company may
have acquired in any manner whatsoever, and all Rights Certificates so
delivered shall be promptly cancelled by the Rights Agent. No Rights
Certificates shall be countersigned in lieu of or in exchange for any
Rights Certificates cancelled as provided in this Section 2.10, except
as expressly permitted by this Agreement. The Rights Agent shall
destroy all cancelled Rights Certificates and deliver a certificate of
destruction to the Company.
2.11 Agreement of Rights Holders. Every holder of
Rights, by accepting the same, consents and agrees with the Company and
the Rights Agent and with every other holder of Rights that:
(a) prior to the Separation Time, each Right will be
transferable only together with, and will be transferred by a transfer
of, the associated share of Common Stock;
(b) after the Separation Time, the Rights Certificates
will be transferable only on the Rights Register as provided herein;
(c) prior to due presentment of a Rights Certificate (or,
prior to the Separation Time, the associated Common Stock certificate)
for registration of transfer, the Company, the Rights Agent and any
agent of the Company or the Rights Agent may deem and treat the person
in whose name the Rights Certificate (or, prior to the Separation Time,
the associated Common Stock certificate) is registered as the absolute
owner thereof and of the Rights evidenced
<PAGE>
<PAGE> 21
thereby for all purposes whatsoever, and neither the Company nor the
Rights Agent shall be affected by any notice to the contrary;
(d) Rights Beneficially Owned by certain Persons will,
under the circumstances set forth in Section 3.1(b), become void; and
(e) this Agreement may be supplemented or amended from
time to time pursuant to Section 2.4(b) or 5.4 hereof.
ARTICLE III
ADJUSTMENTS TO THE RIGHTS IN
THE EVENT OF CERTAIN TRANSACTIONS
3.1 Flip-in. (a) In the event that prior to the
Expiration Time a Flip-in Date shall occur, except as provided in this
Section 3.1, each Right shall constitute the right to purchase from the
Company, upon exercise thereof in accordance with the terms hereof (but
subject to Section 5.10), that number of shares of Common Stock having
an aggregate Market Price on the Stock Acquisition Date equal to twice
the Exercise Price for an amount in cash equal to the Exercise Price
(such right to be appropriately adjusted in order to protect the
interests of the holders of Rights generally in the event that on or
after such Stock Acquisition Date an event of a type analogous to any
of the events described in Section 2.4(a) or (b) shall have occurred
with respect to the Common Stock).
(b) Notwithstanding the foregoing, any Rights that are or
were Beneficially Owned on or after the Stock Acquisition Date by an
Acquiring Person or an Affiliate or Associate thereof or by any
transferee, direct or indirect, of any of the foregoing shall become
void and any holder of such Rights (including transferees) shall
thereafter have no right to exercise or transfer such Rights under any
provision of this Agreement. If any Rights Certificate is presented
for assignment or exercise and the Person presenting the same will not
complete the certification set forth
<PAGE>
<PAGE> 22
at the end of the form of assignment or notice of election to exercise
and provide such additional evidence of the identity of the Beneficial
Owner and its Affiliates and Associates (or former Beneficial Owners
and their Affiliates and Associates) as the Company shall reasonably
request, then the Company shall be entitled conclusively to deem the
Beneficial Owner thereof to be an Acquiring Person or an Affiliate or
Associate thereof or a transferee of any of the foregoing and accord-
ingly will deem the Rights evidenced thereby to be void and not trans-
ferable or exercisable.
(c) The Board of Directors of the Company may, at its
option, at any time after a Flip-in Date and prior to the time that an
Acquiring Person becomes the Beneficial Owner of more than 50% of the
outstanding shares of Common Stock, elect to exchange all (but not less
than all) the then outstanding Rights (which shall not include Rights
that have become void pursuant to the provisions of Section 3.1(b)) for
shares of Common Stock at an exchange ratio of one share of Common
Stock per Right, appropriately adjusted in order to protect the
interests of holders of Rights generally in the event that after the
Separation Time an event of a type analogous to any of the events
described in Section 2.4(a) or (b) shall have occurred with respect to
the Common Stock (such exchange ratio, as adjusted from time to time,
being hereinafter referred to as the "Exchange Ratio").
Immediately upon the action of the Board of Directors of
the Company electing to exchange the Rights, without any further action
and without any notice, the right to exercise the Rights will terminate
and each Right (other than Rights that have become void pursuant to
Section 3.1(b)) will thereafter represent only the right to receive a
number of shares of Common Stock equal to the Exchange Ratio. Promptly
after the action of the Board of Directors electing to exchange the
Rights, the Company shall give notice thereof (specifying the steps to
be taken to receive
<PAGE>
<PAGE> 23
shares of Common Stock in exchange for Rights) to the Rights Agent and
the holders of the Rights (other than Rights that have become void
pursuant to Section 3.1(b)) outstanding immediately prior thereto by
mailing such notice in accordance with Section 5.9.
Each Person in whose name any certificate for shares is
issued upon the exchange of Rights pursuant to this Section 3.1(c) or
Section 3.1(d) shall for all purposes be deemed to have become the
holder of record of the shares represented thereby on, and such
certificate shall be dated, the date upon which the Rights Certificate
evidencing such Rights was duly surrendered and payment of any
applicable taxes and other governmental charges payable by the holder
was made; provided, however, that if the date of such surrender and
payment is a date upon which the stock transfer books of the Company
are closed, such Person shall be deemed to have become the record
holder of such shares on, and such certificate shall be dated, the next
succeeding Business Day on which the stock transfer books of the
Company are open.
(d) Whenever the Company shall become obligated under
Section 3.1(a) or (c) to issue shares of Common Stock upon exercise of
or in exchange for Rights, the Company, at its option, may substitute
therefor shares of Preferred Stock, at a ratio of one one-hundredth
(1/100) of a share of Preferred Stock for each share of Common Stock so
issuable.
(e) In the event that there shall not be sufficient
treasury shares or authorized but unissued shares of Common Stock or
Preferred Stock of the Company to permit the exercise or exchange in
full of the Rights in accordance with Section 3.1(a) or (c), and the
Company elects not to, or is otherwise unable to, make the exchange
referred to in Section 3.1(d), the Company shall either (i) call a
meeting of stockholders seeking approval to cause sufficient additional
shares to be authorized (provided, that if such approval is not
obtained the Company will take the action
<PAGE>
<PAGE> 24
specified in clause (ii) of this sentence) or (ii) take such action as
shall be necessary to ensure and provide, to the extent permitted by
applicable law and any agreements or instruments in effect on the Stock
Acquisition Date to which it is a party, that each Right shall
thereafter constitute the right to receive, (x) at the Company's
option, either (A) in return for the Exercise Price, debt or equity
securities or other assets (or a combination thereof) having a fair
value equal to twice the Exercise Price, or (B) without payment of
consideration (except as otherwise required by applicable law), debt or
equity securities or other assets (or a combination thereof) having a
fair value equal to the Exercise Price, or (y) if the Board of
Directors of the Company elects to exchange the Rights in accordance
with Section 3.1(c), debt or equity securities or other assets (or a
combination thereof) having a fair value equal to the product of the
Market Price of a share of Common Stock on the Flip-in Date times the
Exchange Ratio in effect on the Flip-in Date, where in any case set
forth in (x) or (y) above the fair value of such debt or equity
securities or other assets shall be as determined in good faith by the
Board of Directors of the Company, after consultation with a nationally
recognized investment banking firm.
3.2 Flip-over. (a) Prior to the Expiration Time, unless
the Rights have been redeemed pursuant to Section 5.1 hereof in
connection therewith, the Company shall not enter into any agreement
with respect to, consummate or permit to occur any Flip-over
Transaction or Event unless and until it shall have entered into a
supplemental agreement with the Flip-over Entity, for the benefit of
the holders of the Rights, providing that, upon consummation or
occurrence of the Flip-over Transaction or Event (i) each Right shall
thereafter constitute the right to purchase from the Flip-over Entity,
upon exercise thereof
<PAGE>
<PAGE> 25
in accordance with the terms hereof, that number of shares of Flip-over
Stock of the Flip-over Entity having an aggregate Market Price on the
date of consummation or occurrence of such Flip-over Transaction or
Event equal to twice the Exercise Price for an amount in cash equal to
the Exercise Price (such right to be appropriately adjusted in order to
protect the interests of the holders of Rights generally in the event
that after such date of consummation or occurrence an event of a type
analogous to any of the events described in Section 2.4(a) or (b) shall
have occurred with respect to the Flip-over Stock) and (ii) the Flip-
over Entity shall thereafter be liable for, and shall assume, by virtue
of such Flip-over Transaction or Event and such supplemental agreement,
all the obligations and duties of the Company pursuant to this
Agreement. The provisions of this Section 3.2 shall apply with equal
force to successive Flip-over Transactions or Events.
(b) Prior to the Expiration Time, unless the Rights will
be redeemed pursuant to Section 5.1 hereof in connection therewith,
the Company shall not enter into any agreement with respect to, consum-
mate or permit to occur any Flip-over Transaction or Event if at the
time thereof there are any rights, warrants or securities outstanding
or any other arrangements, agreements or instruments that would
eliminate or otherwise diminish in any material respect the benefits
intended to be afforded by this Rights Agreement to the holders of
Rights upon consummation of such transaction.
ARTICLE IV
THE RIGHTS AGENT
4.1 General. (a) The Company hereby appoints the Rights
Agent to act as agent for the Company in accordance with the terms and
conditions hereof, and the Rights Agent hereby accepts such
appointment. The Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from time
to time and
<PAGE>
<PAGE> 26
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 to be done 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.
(b) The Rights Agent shall be protected and shall incur
no liability for or in respect of any action taken, suffered to be
taken or not taken by it in connection with its administration of this
Agreement in reliance upon any certificate for securities purchasable
upon exercise of Rights, Rights Certificate, certificate for other
securities of the Company, instrument of assignment or transfer, power
of attorney, endorsement, affidavit, letter, notice, direction,
consent, certificate, statement, or other paper or document believed by
it to be genuine and to be signed, executed and, where necessary,
verified or acknowledged, by the proper person or persons.
4.2 Merger or Consolidation or Change of Name of Rights
Agent. (a) Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or
consolidation to which the Rights Agent or any successor Rights Agent
is a party, or any corporation succeeding to the shareholder services
business of the Rights Agent or any successor Rights Agent, will be the
successor to the Rights Agent under this Agreement without the execu-
tion 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
<PAGE>
<PAGE> 27
Rights Agent under the provisions of Section 4.4 hereof. In case at
the time such successor Rights Agent succeeds to the agency created by
this Agreement any of the Rights Certificates have been countersigned
but not delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver such
Rights Certificates so countersigned; and in case at that time any of
the Rights Certificates have not been countersigned, any successor
Rights Agent may countersign such Rights Certificates either in the
name of the predecessor Rights Agent or in the name of the successor
Rights Agent; and in all such cases such Rights Certificates will have
the full force provided in the Rights Certificates and in this
Agreement.
(b) In case at any time the name of the Rights Agent is
changed and at such time any of the Rights Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Rights Certificates
so countersigned; and in case at that time any of the Rights
Certificates shall not have been countersigned, the Rights Agent may
countersign such Rights Certificates either in its prior name or in its
changed name; and in all such cases such Rights Certificates shall have
the full force provided in the Rights Certificates and in this
Agreement.
4.3 Duties of Rights Agent. The Rights Agent undertakes
the duties and obligations imposed by this Agreement upon the following
terms and conditions, by all of which the Company and the holders of
Rights Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who
may be legal counsel for the Company), and the opinion of such counsel
will be full and complete authorization and protection to the Rights
Agent as to any action taken or not taken by it in good faith and in
accordance with such opinion.
<PAGE>
<PAGE> 28
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent deems it necessary or desirable that any
fact or matter be proved or established by the Company prior to taking
or suffering to be taken 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 a person believed by the Rights Agent to be the
Chairman of the Board, the President or any Vice President and by the
Treasurer or any Assistant Treasurer or the Secretary or any Assistant
Secretary of the Company and delivered to the Rights Agent; and such
certificate will be full authorization to the Rights Agent for any
action taken or suffered to be taken in good faith by it under the
provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent will be liable hereunder only for
its own negligence, bad faith or willful misconduct.
(d) The Rights Agent will not be liable for or by reason
of any of the statements of fact or recitals contained in this
Agreement or in the certificates for securities purchasable upon
exercise of Rights or the Rights Certificates (except its countersigna-
ture thereof) or be required to verify the same, but all such
statements and recitals are and will be deemed to have been made by the
Company only.
(e) The Rights Agent will not be under any responsibility
in respect of the validity of this Agreement or the execution and
delivery hereof (except the due authorization, execution and delivery
hereof by the Rights Agent) or in respect of the validity or execution
of any certificate for securities purchasable upon exercise of Rights
or Rights Certificate (except its countersignature thereof); nor will
it be responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in
<PAGE>
<PAGE> 29
any Rights Certificate; nor will it be responsible for any change in
the exercisability of the Rights (including the Rights becoming void
pursuant to Section 3.1(b) hereof) or any adjustment required under the
provisions of Section 2.4, 3.1 or 3.2 hereof or responsible for the
manner, method or amount of any such adjustment or the ascertaining of
the existence of facts that would require any such adjustment (except
with respect to the exercise of Rights after receipt of the certificate
contemplated by Section 2.4 describing any such adjustment); nor will
it by any act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any securities
purchasable upon exercise of Rights or any Rights or as to whether any
securities purchasable upon exercise of Rights will, when issued, be
duly and validly authorized, executed, issued and delivered and fully
paid and nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts, instruments
and assurances as may reasonably be required by the Rights Agent for
the carrying out or performing by the Rights Agent of the provisions of
this Agreement.
(g) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties
hereunder from any person believed by the Rights Agent to be the
Chairman of the Board, the President, any Vice President, the Secretary
or any Assistant Secretary or the Treasurer or any Assistant Treasurer
of the Company, and to apply to such persons 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 person.
(h) The Rights Agent and any stockholder, director,
officer or employee of the Rights Agent may buy, sell
<PAGE>
<PAGE> 30
or deal in Common Stock, Rights or other securities of the Company or
become pecuniarily interested in any transaction in which the Company
may be interested, or contract with or lend money to the Company or
otherwise act as fully and freely as though it were not Rights Agent
under this Agreement. Nothing herein shall preclude the Rights Agent
from acting in any other capacity for the Company or for any other
legal entity.
(i) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder
either itself or by or through its attorneys or agents, and the Rights
Agent will not be answerable or accountable for any act, default,
neglect or misconduct of any such attorneys or agents or for any loss
to the Company resulting from any such act, default, neglect or
misconduct, provided reasonable care was exercised in the selection and
continued employment thereof.
4.4 Change of Rights Agent. The Rights Agent may resign
and be discharged from its duties under this Agreement upon 90 days'
notice (or such lesser notice as is acceptable to the Company) in
writing mailed to the Company and to each transfer agent of Common
Stock by registered or certified mail, and to the holders of the Rights
in accordance with Section 5.9. The Company may remove the Rights
Agent upon 30 days' notice in writing, mailed to the Rights Agent and
to each transfer agent of the Common Stock by registered or certified
mail, and to the holders of the Rights in accordance with Section 5.9.
If the Rights Agent should resign or be removed or otherwise become
incapable of acting, the Company will appoint a successor to the Rights
Agent. If the Company fails to make such appointment within a period
of 30 days after such removal or after it has been notified in writing
of such resignation or incapacity by the resigning or incapacitated
Rights Agent or by the holder of any Rights (which holder shall, with
such notice, submit
<PAGE>
<PAGE> 31
such holder's Rights Certificate for inspection by the Company), then
the holder of any Rights may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any successor
Rights Agent, whether appointed by the Company or by such a court,
shall be a corporation organized and doing business under the laws of
the United States or of any State of the United States, in good
standing, which is authorized under such laws to exercise the powers of
the Rights Agent contemplated by this Agreement and is subject to
supervision or examination by federal or state authority and which has
at the time of its appointment as Rights Agent a combined capital and
surplus of at least $50,000,000. After appointment, the successor
Rights Agent will be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Rights Agent
without further act or deed; but the predecessor Rights Agent shall
deliver and transfer to the successor Rights Agent any property at the
time held by it hereunder, and execute and deliver any further
assurance, conveyance, act or deed necessary for the purpose. Not
later than the effective date of any such appointment, the Company will
file notice thereof in writing with the predecessor Rights Agent and
each transfer agent of the Common Stock, and mail a notice thereof in
writing to the holders of the Rights. Failure to give any notice
provided for in this Section 4.4, however, or any defect therein, shall
not affect the legality or validity of the resignation or removal of
the Rights Agent or the appointment of the successor Rights Agent, as
the case may be. No resignation or removal of the Rights Agent shall
be effective until a successor Rights Agent is appointed in accordance
with this Section 4.4.
<PAGE>
<PAGE> 32
ARTICLE V
MISCELLANEOUS
5.1 Redemption. (a) The Board of Directors of the
Company may, at its option, at any time prior to the Flip-in Date,
elect to redeem all (but not less than all) the then outstanding Rights
at the Redemption Price and the Company, at its option, may pay the
Redemption Price either in cash or shares of Common Stock or other
securities of the Company deemed by the Board of Directors, in the
exercise of its sole discretion, to be at least equivalent in value to
the Redemption Price.
(b) Immediately upon the action of the Board of Directors
of the Company electing to redeem the Rights (or, if the resolution of
the Board of Directors electing to redeem the Rights states that the
redemption will not be effective until the occurrence of a specified
future time or event, upon the occurrence of such future time or
event), 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 in cash or
securities, as determined by the Board of Directors. Promptly after
the Rights are redeemed, the Company shall give notice of such
redemption to the Rights Agent and the holders of the then outstanding
Rights by mailing such notice in accordance with Section 5.9.
5.2 Expiration. The Rights and this Agreement shall
expire at the Expiration Time and no Person shall have any rights
pursuant to this Agreement or any Right after the Expiration Time,
except, if the Rights are exchanged or redeemed, as provided in
Section 3.1 or 5.1 hereof.
5.3 Issuance of New Rights Certificates. Notwithstanding
any of the provisions of this Agreement or of the Rights to the
contrary, the Company may, at its option, issue new Rights Certificates
evidencing Rights in such form
<PAGE>
<PAGE> 33
as may be approved by its Board of Directors to reflect any adjustment
or change in the number or kind or class of shares of stock purchasable
upon exercise of Rights made in accordance with the provisions of this
Agreement. In addition, in connection with the issuance or sale of
shares of Common Stock by the Company following the Separation Time and
prior to the Expiration Time pursuant to the terms of securities
convertible or redeemable into shares of Common Stock or to options, in
each case issued or granted prior to, and outstanding at, the
Separation Time, the Company shall issue to the holders of such shares
of Common Stock, Rights Certificates representing the appropriate
number of Rights in connection with the issuance or sale of such shares
of Common Stock; provided, however, in each case, (i) no such Rights
Certificate shall be issued, if, and to the extent that, the Company
shall be advised by counsel that such issuance would create a
significant risk of material adverse tax consequences to the Company or
to the Person to whom such Rights Certificates would be issued, (ii) no
such Rights Certificates shall be issued if, and to the extent that,
appropriate adjustment shall have otherwise been made in lieu of the
issuance thereof, and (iii) the Company shall have no obligation to
distribute Rights Certificates to any Acquiring Person or Affiliate or
Associate of an Acquiring Person or any transferee of any of the
foregoing.
5.4 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 Rights (i) prior to the Flip-in
Date, in any respect and (ii) after the Flip-in Date, to make any
changes that the Company may deem necessary or desirable and which
shall not materially adversely affect the interests of the holders of
Rights generally or in order to cure any ambiguity or to correct or
supplement any provision contained herein which may be inconsistent
with any other provisions herein or otherwise
<PAGE>
<PAGE> 34
defective. The Rights Agent will duly execute and deliver any
supplement or amendment hereto requested by the Company which satisfies
the terms of the preceding sentence.
5.5 Fractional Shares. If the Company elects not to issue
certificates representing fractional shares upon exercise or redemption
of Rights, the Company shall, in lieu thereof, in the sole discretion
of the Board of Directors, either (a) evidence such fractional shares
by depositary receipts issued pursuant to an appropriate agreement
between the Company and a depositary selected by it, providing that
each holder of a depositary receipt shall have all of the rights,
privileges and preferences to which such holder would be entitled as a
beneficial owner of such fractional share, or (b) sell such shares on
behalf of the holders of Rights and pay to the registered holder of
such Rights the appropriate fraction of the price per share received
upon such sale.
5.6 Rights of Action. Subject to the terms of this
Agreement (including Section 3.1(b)), rights of action in respect of
this Agreement, other than rights of action vested solely in the Rights
Agent, are vested in the respective holders of the Rights; and any
holder of any Rights, without the consent of the Rights Agent or of the
holder of any other Rights, may, on such holder's own behalf and for
such holder's own benefit and the benefit of other holders of Rights,
enforce, and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise act in respect of, such
holder's right to exercise such holder's Rights in the manner provided
in such holder's Rights Certificate 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
<PAGE>
<PAGE> 35
performance of the obligations under, and injunctive relief against
actual or threatened violations of, the obligations of any Person
subject to this Agreement.
5.7 Holder of Rights Not Deemed a Stockholder. No
holder, as such, of any Rights shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of shares or any
other securities which may at any time be issuable on the exercise of
such Rights, nor shall anything contained herein or in any Rights
Certificate be construed to confer upon the holder of any Rights, as
such, any of the rights of a stockholder of the Company or any right to
vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to
any corporate action, or to receive notice of meetings or other actions
affecting stockholders (except as provided in Section 5.8 hereof), or
to receive dividends or subscription rights, or otherwise, until such
Rights shall have been exercised or exchanged in accordance with the
provisions hereof.
5.8 Notice of Proposed Actions. In case the Company
shall propose after the Separation Time and prior to the Expiration
Time (i) to effect or permit a Flip-over Transaction or Event or
(ii) to effect the liquidation, dissolution or winding up of the
Company, then, in each such case, the Company shall give to each holder
of a Right, in accordance with Section 5.9 hereof, a notice of such
proposed action, which shall specify the date on which such Flip-over
Transaction or Event, liquidation, dissolution, or winding up is to
take place, and such notice shall be so given at least twenty
(20) Business Days prior to the date of the taking of such proposed
action.
5.9 Notices. Notices or demands authorized or required
by this Agreement to be given or made by the Rights
<PAGE>
<PAGE> 36
Agent or by the holder of any Rights to or on the Company shall be
sufficiently given or made if delivered or sent by first-class mail,
postage prepaid, addressed (until another address is filed in writing
with the Rights Agent) as follows:
Wilshire Oil Company of Texas
921 Bergen Avenue
Jersey City, New Jersey 07306
Attention: S. Wilzig Izak
with a copy to:
Robert W. Reeder III
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Any notice or demand authorized or required by this Agreement to be
given or made by the Company or by the holder of any Rights to or on
the Rights Agent shall be sufficiently given or made if delivered or
sent by first-class mail, postage prepaid, addressed (until another
address is filed in writing with the Company) as follows:
Continental Stock Transfer & Company
2 Broadway
19th Floor
New York, New York 10004
Attention: Steve Nelson, Chairman
Notices or demands authorized or required by this Agreement to be given
or made by the Company or the Rights Agent to or on the holder of any
Rights shall be sufficiently given or made if delivered or sent by
first-class mail, postage prepaid, addressed to such holder at the
address of such holder as it appears upon the registry books of the
Rights Agent or, prior to the Separation Time, on the registry books of
the transfer agent for the Common Stock. Any notice which is mailed in
the manner herein provided shall be deemed given, whether or not the
holder receives the notice.
<PAGE>
<PAGE> 37
5.10 Suspension of Exercisability. To the extent that the
Company determines in good faith that some action will or need be taken
pursuant to Section 3.1 or to comply with federal or state securities
laws, the Company may suspend the exercisability of the Rights for a
reasonable period in order to take such action or comply with such
laws. In the event of any such suspension, the Company shall issue as
promptly as practicable a public announcement stating that the exer-
cisability or exchangeability of the Rights has been temporarily
suspended. Notice thereof pursuant to Section 5.9 shall not be
required.
Failure to give a notice pursuant to the provisions of this
Agreement shall not affect the validity of any action taken hereunder.
5.11 Costs of Enforcement. The Company agrees that if the
Company or any other Person the securities of which are purchasable
upon exercise of Rights fails to fulfill any of its obligations
pursuant to this Agreement, then the Company or such Person will
reimburse the holder of any Rights for the costs and expenses
(including legal fees) incurred by such holder in actions to enforce
such holder's rights pursuant to any Rights or this Agreement.
5.12 Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Rights Agent
shall bind and inure to the benefit of their respective successors and
assigns hereunder.
5.13 Benefits of this Agreement. Nothing in this
Agreement shall be construed to give to any Person other than the
Company, the Rights Agent and the holders of the Rights any legal or
equitable right, remedy or claim under this Agreement; but this
Agreement shall be for the sole and exclusive benefit of the Company,
the Rights Agent and the holders of the Rights.
<PAGE>
<PAGE> 38
5.14 Determination and Actions by the Board of Directors,
etc. The Board of Directors of the Company shall have the exclusive
power and authority to administer this Agreement and to exercise all
rights and powers specifically granted to the Board or to the Company,
or as may be necessary or advisable in the administration of this
Agreement, including, without limitation, the right and power to
(i) interpret the provisions of this Agreement and (ii) make all
determinations deemed necessary or advisable for the administration of
this Agreement. All such actions, calculations, interpretations and
determinations (including, for purposes of clause (y) below, all
omissions with respect to the foregoing) which are done or made by the
Board in good faith, shall (x) be final, conclusive and binding on the
Company, the Rights Agent, the holders of the Rights and all other
parties, and (y) not subject the Board of Directors of the Company to
any liability to the holders of the Rights.
5.15 Descriptive Headings. Descriptive headings appear
herein for convenience only and shall not control or affect the meaning
or construction of any of the provisions hereof.
5.16 Governing Law. THIS AGREEMENT AND EACH RIGHT ISSUED
HEREUNDER SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE
STATE OF NEW YORK AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE APPLICABLE TO
CONTRACTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE.
5.17 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.
<PAGE>
<PAGE> 39
5.18 Severability. If any term or provision hereof or the
application thereof to any circumstance shall, in any jurisdiction and
to any extent, be invalid or unenforceable, such term or provision
shall be ineffective as to such jurisdiction to the extent of such
invalidity or unenforceability without invalidating or rendering
unenforceable the remaining terms and provisions hereof or the
application of such term or provision to circumstances other than those
as to which it is held invalid or unenforceable.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
WILSHIRE OIL COMPANY OF TEXAS
By: /s/ S. Wilzig Izak
Name: S. Wilzig Izak
Title: Chairman & CEO
CONTINENTAL STOCK TRANSFER &
COMPANY
By: /s/ Steven Nelson
Name: Steven Nelson
Title: Chairman
<PAGE>
<PAGE> 1
EXHIBIT A
[Form of Rights Certificate]
Certificate No. W- _______ Rights
THE RIGHTS ARE SUBJECT TO REDEMPTION OR
MANDATORY EXCHANGE, AT THE OPTION OF THE
COMPANY, ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. RIGHTS BENEFICIALLY OWNED BY
ACQUIRING PERSONS OR AFFILIATES OR ASSOCIATES
THEREOF (AS SUCH TERMS ARE DEFINED IN THE
RIGHTS AGREEMENT) OR TRANSFEREES OF ANY OF THE
FOREGOING WILL BE VOID.
Rights Certificate
WILSHIRE OIL COMPANY OF TEXAS
This certifies that ____________________, or registered
assigns, is the registered holder of the number of Rights set forth
above, each of which entitles the registered holder thereof, subject to
the terms, provisions and conditions of the Stockholder Protection
Rights Agreement, dated as of June 21, 1996 (as amended from time to
time, the "Rights Agreement"), between Wilshire Oil Company of Texas, a
Delaware corporation (the "Company"), and Continental Stock Transfer &
Company, a limited purpose trust company organized under the banking
laws of the State of New York, as Rights Agent (the "Rights Agent",
which term shall include any successor Rights Agent under the Rights
Agreement), to purchase from the Company at any time after the
Separation Time (as such term is defined in the Rights Agreement) and
prior to the close of business on July 6, 2006, one one-hundredth
(1/100) of a fully paid share of Series A Participating Preferred
Stock, par value $1.00 per share (the "Preferred Stock"), of the
Company (subject to adjustment as provided in the Rights Agreement) at
the Exercise Price referred to below, upon presentation and surrender
of this Rights Certificate with the Form of Election to Exercise duly
executed at the principal office of the Rights Agent in New York,
New York. The Exercise Price
<PAGE>
<PAGE> 2
shall initially be $25.00 per Right and shall be subject to adjustment
in certain events as provided in the Rights Agreement.
In certain circumstances described in the Rights Agreement,
the Rights evidenced hereby may entitle the registered holder thereof
to purchase securities of an entity other than the Company or
securities or assets of the Company other than Preferred Stock, all as
provided in the Rights Agreement.
This Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by reference
and made a part hereof and to which Rights Agreement reference is
hereby made for a full description of the rights, limitations of
rights, obligations, duties and immunities hereunder of the Rights
Agent, the Company and the holders of the Rights Certificates. Copies
of the Rights Agreement are on file at the principal executive offices
of the Company and are available without cost upon written request.
This Rights Certificate, with or without other Rights
Certificates, upon surrender at the office of the Rights Agent
designated for such purpose, may be exchanged for another Rights
Certificate or Rights Certificates of like tenor evidencing an
aggregate number of Rights equal to the aggregate number of Rights
evidenced by the Rights Certificate or Rights Certificates surrendered.
If this Rights Certificate shall be exercised in part, the registered
holder shall be entitled to receive, upon surrender hereof, another
Rights Certificate or Rights Certificates for the number of whole
Rights not exercised.
Subject to the provisions of the Rights Agreement, each
Right evidenced by this Certificate may be (a) redeemed by the Company
under certain circumstances, at its option, at a redemption price of
$0.01 per Right or (b) exchanged by the Company under certain
circumstances, at its option, for
<PAGE>
<PAGE> 3
one share of Common Stock or one one-hundredth (1/100) of a share of
Preferred Stock per Right (or, in certain cases, other securities or
assets of the Company), subject in each case to adjustment in certain
events as provided in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any purpose the
holder of any securities which may at any time be issuable on the
exercise hereof, nor shall anything contained in the Rights Agreement
or herein be construed to confer upon the holder hereof, as such, any
of the rights of a stockholder of the Company or any right to vote for
the election of directors or upon any matter submitted to stockholders
at any meeting thereof, or to give or withhold consent to any corporate
action, or to receive notice of meetings or other actions affecting
stockholders (except as provided in the Rights Agreement), or to
receive dividends or subscription rights, or otherwise, until the
Rights evidenced by this Rights Certificate shall have been exercised
or exchanged as provided in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory
for any purpose until it shall have been countersigned by the Rights
Agent.
WITNESS the facsimile signature of the proper officers of
the Company and its corporate seal.
Date: ____________
ATTEST: WILSHIRE OIL COMPANY OF TEXAS
__________________________ By____________________________
Secretary or Assistant Name:
Secretary Title:
<PAGE>
<PAGE> 4
Countersigned:
CONTINENTAL STOCK TRANSFER & COMPANY
By____________________________
Authorized Signature
<PAGE>
<PAGE> 1
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer this Rights Certificate.)
FOR VALUE RECEIVED ________________________ hereby
sells, assigns and transfers unto ___________________
(Please print name
_____________________________________________________
and address of transferee)
this Rights Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint
_______________ as attorney, to transfer the within Rights Certificate
on the books of the within-named Company, with full power of
substitution.
Dated: _______________, 19__
Signature Guaranteed: _________________________
Signature
(Signature must correspond to
name as written upon the face
of this Rights Certificate in
every particular, without
alteration or enlargement or
any change whatsoever)
Signatures must be guaranteed by a participant in a
Securities Transfer Association recognized signature program.
------------------------------------------------------------
(To be completed if true)
The undersigned hereby represents, for the benefit of all holders of
Rights and shares of Common Stock, that the Rights evidenced by this
Rights Certificate are not, and, to the knowledge of the undersigned,
have never been, Beneficially Owned by an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement).
_________________________
Signature
<PAGE>
<PAGE> 2
------------------------------------------------------------
NOTICE
In the event the certification set forth above is not
completed in connection with a purported assignment, the Company will
deem the Beneficial Owner of the Rights evidenced by the enclosed
Rights Certificate to be an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement) or a transferee
of any of the foregoing and accordingly will deem the Rights evidenced
by such Rights Certificate to be void and not transferable or
exercisable.
<PAGE>
<PAGE> 1
[To be attached to each Rights Certificate]
FORM OF ELECTION TO EXERCISE
(To be executed if holder desires to
exercise the Rights Certificate.)
TO: WILSHIRE OIL COMPANY OF TEXAS
The undersigned hereby irrevocably elects to exercise
_______________________ whole Rights represented by the attached Rights
Certificate to purchase the shares of Series A Participating Preferred
Stock issuable upon the exercise of such Rights and requests that
certificates for such shares be issued in the name of:
___________________________________
Address:
___________________________________
Social Security or Other Taxpayer
Identification Number:
If such number of Rights shall not be all the Rights evidenced by this
Rights Certificate, a new Rights Certificate for the balance of such
Rights shall be registered in the name of and delivered to:
___________________________________
Address:
___________________________________
Social Security or Other Taxpayer
Identification Number:
Dated: _______________, 19__
Signature Guaranteed: _________________________
Signature
(Signature must correspond to
name as written upon the face
of the attached Rights
Certificate in every
particular, without
alteration or enlargement or
any change whatsoever)
<PAGE>
<PAGE> 2
Signatures must be guaranteed by a participant in a
Securities Transfer Association recognized signature program.
------------------------------------------------------------
(To be completed if true)
The undersigned hereby represents, for the benefit of all
holders of Rights and shares of Common Stock, that the Rights evidenced
by the attached Rights Certificate are not, and, to the knowledge of
the undersigned, have never been, Beneficially Owned by an Acquiring
Person or an Affiliate or Associate thereof (as defined in the Rights
Agreement).
_________________________
Signature
------------------------------------------------------------
NOTICE
In the event the certification set forth above is not
completed in connection with a purported exercise, the Company will
deem the Beneficial Owner of the Rights evidenced by the attached
Rights Certificate to be an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement) or a transferee
of any of the foregoing and accordingly will deem the Rights evidenced
by such Rights Certificate to be void and not transferable or
exercisable.
<PAGE>
<PAGE> 1
EXHIBIT B
FORM OF CERTIFICATE OF DESIGNATIONS AND TERMS
OF SERIES A PARTICIPATING PREFERRED STOCK
OF WILSHIRE OIL COMPANY OF TEXAS
Pursuant to Section 151 of the General
Corporation Law of the State of Delaware
We, the undersigned, S. Wilzig Izak and
____________________, Chairman and Chief Executive Officer and
Secretary, respectively, of Wilshire Oil Company of Texas, a Delaware
corporation (the "Corporation"), do hereby certify as follows:
Pursuant to authority granted by Article FOURTH of the
Restated Certificate of Incorporation of the Corporation, as amended,
and in accordance with the provisions of Section 151 of the General
Corporation Law of the State of Delaware, the Board of Directors of the
Corporation has adopted the following resolutions fixing the
designation and certain terms, powers, preferences and other rights of
a new series of the Corporation's Preferred Stock, par value $1.00 per
share, and certain qualifications, limitations and restrictions
thereon:
RESOLVED, that there is hereby established a series of Pre-
ferred Stock, par value $1.00 per share, of the Corporation, and
the designation and certain terms, powers, preferences and other
rights of the shares of such series, and certain qualifications,
limitations and restrictions thereon, are hereby fixed as
follows:
(i) The distinctive serial designation of this series
shall be "Series A Participating Preferred Stock"
(hereinafter called "this Series"). Each share of this
Series shall be identical in all respects with the other
shares of this Series except as to the dates from and after
which dividends thereon shall be cumulative.
(ii) The number of shares in this Series shall
initially be [_______], which number may from time to time
be increased or decreased (but not below the number then
outstanding) by the Board of Directors. Shares of this
Series purchased by the Corporation shall be cancelled and
shall revert to
<PAGE>
<PAGE> 2
authorized but unissued shares of Preferred Stock undesignated as to
series. Shares of this Series may be issued in fractional shares,
which fractional shares shall entitle the holder, in proportion to such
holder's fractional share, to all rights of a holder of a whole share
of this Series.
(iii) The holders of full or fractional shares of this
Series shall be entitled to receive, when and as declared
by the Board of Directors, but only out of funds legally
available therefor, dividends, (A) on each date that
dividends or other distributions (other than dividends or
distributions payable in Common Stock of the Corporation)
are payable on or in respect of Common Stock comprising
part of the Reference Package (as defined below), in an
amount per whole share of this Series equal to the
aggregate amount of dividends or other distributions (other
than dividends or distributions payable in Common Stock of
the Corporation) that would be payable on such date to a
holder of the Reference Package and (B) on the last day of
March, June, September and December in each year, in an
amount per whole share of this Series equal to the excess
(if any) of $_____* over the aggregate dividends paid per
whole share of this Series during the three month period
ending on such last day. Each such dividend shall be paid
to the holders of record of shares of this Series on the
date, not exceeding sixty days preceding such dividend or
distribution payment date, fixed for the purpose by the
Board of Directors in advance of payment of each particular
dividend or distribution. Dividends on each full and each
fractional share of this Series shall be cumulative from
the date such full or fractional share is originally
issued; provided, that any such full or fractional share
originally issued after a dividend record date and on or
prior to the dividend payment date to which such record
date relates shall not be entitled to receive the dividend
payable on such dividend payment date or any amount in
respect of the period from such original issuance to such
dividend payment date.
* Insert an amount equal to 1/4 of 1% of the Exercise
Price divided by the number of shares of Preferred
Stock purchasable upon exercise of one Right (i.e., a
guaranteed 1% dividend). Where a Right is exercisable
for one one-hundredth of a share, this simplifies to
one-fourth the Exercise Price.
<PAGE>
<PAGE> 3
The term "Reference Package" shall initially
mean 100 shares of Common Stock, par value $1.00 per share
("Common Stock"), of the Corporation. In the event the
Corporation shall at any time after the close of business
on ________, 19__* (A) declare or pay a dividend on any
Common Stock payable in Common Stock, (B) subdivide any
Common Stock or (C) combine any Common Stock into a smaller
number of shares, then and in each such case the Reference
Package after such event shall be the Common Stock that a
holder of the Reference Package immediately prior to such
event would hold thereafter as a result thereof.
Holders of shares of this Series shall not be
entitled to any dividends, whether payable in cash,
property or stock, in excess of full cumulative dividends,
as herein provided on this Series.
So long as any shares of this Series are
outstanding, no dividend (other than a dividend in Common
Stock or in any other stock ranking junior to this Series
as to dividends and upon liquidation) shall be declared or
paid or set aside for payment or other distribution
declared or made upon the Common Stock or upon any other
stock ranking junior to this Series as to dividends or upon
liquidation, nor shall any Common Stock nor any other stock
of the Corporation ranking junior to or on a parity with
this Series as to dividends or upon liquidation be
redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available
for a sinking fund for the redemption of any shares of any
such stock) by the Corporation (except by conversion into
or exchange for stock of the Corporation ranking junior to
this Series as to dividends and upon liquidation), unless,
in each case, the full cumulative dividends (including the
dividend to be due upon payment of such dividend,
distribution, redemption, purchase or other acquisition) on
all outstanding shares of this Series shall have been, or
shall contemporaneously be, paid.
* For a certificate of designations relating to shares to
be issued pursuant to Section 2.3 of the Rights Agree-
ment, insert the Separation Time. For a certificate of
designations relating to shares to be issued pursuant
to Section 3.1(d) of the Rights Agreement, insert the
Flip-in Date.
<PAGE>
<PAGE> 4
(iv) In the event of any merger, consolidation,
reclassification or other transaction in which the shares
of Common Stock are exchanged for or changed into other
stock or securities, cash and/or any other property, then
in any such case the shares of this Series shall at the
same time be similarly exchanged or changed in an amount
per whole share equal to the aggregate amount of stock,
securities, cash and/or any other property (payable in
kind), as the case may be, that a holder of the Reference
Package would be entitled to receive as a result of such
transaction.
(v) In the event of any liquidation, dissolution or
winding up of the affairs of the Corporation, whether
voluntary or involuntary, the holders of full and
fractional shares of this Series shall be entitled, before
any distribution or payment is made on any date to the
holders of the Common Stock or any other stock of the
Corporation ranking junior to this Series upon liquidation,
to be paid in full an amount per whole share of this Series
equal to the greater of (A) $__________* or (B) the
aggregate amount distributed or to be distributed prior to
such date in connection with such liquidation, dissolution
or winding up to a holder of the Reference Package (such
greater amount being hereinafter referred to as the
"Liquidation Preference"), together with accrued dividends
to such distribution or payment date, whether or not earned
or declared. If such payment shall have been made in full
to all holders of shares of this Series, the holders of
shares of this Series as such shall have no right or claim
to any of the remaining assets of the Corporation.
In the event the assets of the Corporation
available for distribution to the holders of shares of this
Series upon any liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, shall be
insufficient to pay in full all amounts to which such
holders are entitled pursuant to the first paragraph of
this Section (v), no such distribution shall be made on
account of any shares of any other class or series of
Preferred Stock ranking on a parity with the shares of this
Series upon such liquidation, dissolution or winding up
unless proportionate distributive amounts shall be
* Insert an amount equal to 100 times the Exercise Price
in effect as of the Separation Time.
<PAGE>
<PAGE> 5
paid on account of the shares of this Series, ratably in
proportion to the full distributable amounts for which
holders of all such parity shares are respectively entitled
upon such liquidation, dissolution or winding up.
Upon the liquidation, dissolution or winding up
of the Corporation, the holders of shares of this Series
then outstanding shall be entitled to be paid out of assets
of the Corporation available for distribution to its stock-
holders all amounts to which such holders are entitled
pursuant to the first paragraph of this Section (v) before
any payment shall be made to the holders of Common Stock or
any other stock of the Corporation ranking junior upon
liquidation to this Series.
For the purposes of this Section (v), the
consolidation or merger of, or binding share exchange by,
the Corporation with any other corporation shall not be
deemed to constitute a liquidation, dissolution or winding
up of the Corporation.
(vi) The shares of this Series shall not be redeemable.
(vii) In addition to any other vote or consent of
stockholders required by law or by the Restated Certificate
of Incorporation, as amended, of the Corporation, each
whole share of this Series shall, on any matter, vote as a
class with any other capital stock comprising part of the
Reference Package and voting on such matter and shall have
one vote per share.
(viii) The Series A Participating Preferred Stock shall
rank junior as to the payment of dividends and amounts upon
liquidation, dissolution and winding up to all of the
Corporation's capital stock except (A) the Common Stock and
(B) any other capital stock of the Corporation which by its
terms ranks junior to the Series A Participating Preferred
Stock as to the payment of dividends or amounts upon
liquidation, dissolution or winding up.
(ix) Other than as set forth herein and as provided by
law, the Series A Participating Preferred Stock shall not
have any other powers, preference or other rights or
privileges.
<PAGE>
<PAGE> 6
IN WITNESS WHEREOF, the undersigned have signed and
attested this certificate on the ____ day of _________, 199_.
_________________________________
Attest:
_________________________
