<PAGE> 1
As filed with the Securities and Exchange Commission on September 10, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
AIRONET WIRELESS COMMUNICATIONS, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 34-1758180
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
3875 EMBASSY PARKWAY
AKRON, OH 44333
(Address of Principal Executive Offices)
---------------
1999 EMPLOYEE STOCK PURCHASE PLAN
1999 OMNIBUS STOCK INCENTIVE PLAN
1999 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
(Full Title of the Plans)
--------------
<TABLE>
<S> <C>
ROGER J. MURPHY, JR. JAY R. FAEGES, ESQ.
PRESIDENT & CHIEF EXECUTIVE OFFICER GOODMAN WEISS MILLER LLP
3875 EMBASSY PARKWAY 100 ERIEVIEW PLAZA, 27TH FLOOR
AKRON, OH 44333 CLEVELAND, OH 44114
TELEPHONE: (330) 664-7900 TELEPHONE: (216) 696-3366
FAX: (330) 664-7922 FAX: (216) 363-5835
(Name, Address, and Telephone Number, Including Area Code, (Agent to Receive Comments and Other
of Agent for Service) Communications)
</TABLE>
--------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------- -------------------- ----------------- ------------- ----------------
TITLE OF EACH CLASS OF AMOUNT TO BE PROPOSED PROPOSED AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) MAXIMUM MAXIMUM REGISTRATION
OFFERING PRICE AGGREGATE FEE(2)
PER UNIT OFFERING
PRICE
- -------------------------------------------- -------------------- ----------------- ------------- ----------------
<S> <C> <C> <C> <C>
1999 EMPLOYEE STOCK PURCHASE PLAN 500,000
Common Stock ($.01 par value per share) shares $14.07 $ 7,035,000 $ 1,955.73
- -------------------------------------------- -------------------- ----------------- ------------- ----------------
1999 OMNIBUS STOCK INCENTIVE PLAN 1,765,817
Common Stock ($.01 par value per share) shares $14.07 $24,845,045.19 $ 6,906.92
- -------------------------------------------- -------------------- ----------------- -------------- ----------------
1999 STOCK OPTION PLAN FOR NON-EMPLOYEE 250,000
DIRECTORS shares $14.07 $ 3,517,500 $ 977.87
Common Stock ($.01 par value per share)
- -------------------------------------------- -------------------- ----------------- ------------- ----------------
<FN>
(1) The subject shares of Common Stock of the Registrant may be issued pursuant to the 1999 Employee Stock
Purchase Plan, the 1999 Omnibus Stock Incentive Plan or the 1999 Stock Option Plan for Non-Employee
Directors (the "1999 Plans"). In accordance with Rule 416 of the Securities Act of 1933, as amended,
this Registration Statement also covers an indeterminate number of additional securities as may become
issuable pursuant to the antidilution provisions of each such plan in the event of any stock splits,
stock dividends or similar transactions specified in the 1999 Plans.
(2) Estimated solely for the purpose of calculating the registration fee, in accordance with Rule 457(c)
and (h) of the Act, on the basis of the average of the high ($14.88) and low ($13.25) prices of the
Common Stock of Aironet Wireless Communications, Inc. as reported on the Nasdaq National Market on
September 8, 1999.
</TABLE>
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I, Items 1 and 2, will be included in
documents sent or given to participants in the 1999 Plans pursuant to Rule
428(b)(1) of the Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, previously filed with the Securities and
Exchange Commission (the "Commission"), are by this reference incorporated in
this Registration Statement:
(a) The Registrant's prospectus filed with the Commission on July
30, 1999 pursuant to Rule 424(b) of the Securities Act of
1933, as amended, in connection with Registration Statement
No. 333-78507 on Form S-1 filed with the Commission on May 14,
1999, together with any and all amendments thereto, in which
there is audited financial statements for the Registrant's
fiscal years ended March 31, 1998 and 1999;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended, since the end
of the fiscal year covered by the prospectus referred to in
(a) above; and
(c) The Registrant's Registration Statement No. 000-26747 on Form
8-A filed with the Commission on July 16, 1999, together with
any and all amendments thereto, pursuant to Section 12(g) of
the Securities Exchange Act of 1934, as amended.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, after
the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered pursuant to
this Registration Statement have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the securities being offered pursuant to this
Registration Statement has been passed upon for the Registrant by the law firm
of Goodman Weiss Miller LLP. Certain attorneys of such firm, in the aggregate,
own 17,050 shares of the Registrant's Common Stock. Mr. Jay R. Faeges, an
attorney at Goodman Weiss Miller LLP, is the Secretary of the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify directors and officers as well as other employees and
individuals against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement in connection with specified actions, suits or
proceedings, whether civil,
2
<PAGE> 3
criminal, administrative or investigative (other than an action by or in the
right of the corporation, a "derivative action") if they acted in good faith and
in a manner they reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, if they had no reasonable cause to believe their conduct was
unlawful. A similar standard is applicable in the case of derivative actions,
except that indemnification only extends to expenses (including attorneys' fees)
incurred in connection with the defense or settlement of such actions, and the
statute requires court approval before there can be any indemnification where
the person seeking indemnification has been found liable to the corporation. The
statute provides that it is not exclusive of other indemnification that may be
granted by a corporation's bylaws, disinterested director vote, stockholder
vote, agreement or otherwise.
The Registrant's Amended and Restated Certificate of Incorporation (the
"Certificate") provides that each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that such person, or a person of whom such person is the legal
representative, is or was one of the Registrant's directors or officers or is or
was serving at the Registrant's request as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding is an alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, will be indemnified and held harmless by
the Registrant to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Registrant to provide broader indemnification rights than the law permitted
prior to such amendment), against all expense, liability and loss reasonably
incurred or suffered by such person in connection therewith. Such right to
indemnification includes the right to have the Registrant pay the expenses
incurred in defending any such proceeding in advance of its final disposition,
subject to the provisions of the Delaware General Corporation Law. Such rights
are not exclusive of any other right which any person may have or thereafter
acquire under any statute, provision of the certificate, bylaws, agreement, vote
of stockholders or disinterested directors or otherwise. No repeal or
modification of such provision will in any way diminish or adversely affect the
rights of any of the Registrant's directors, officers, employees or agents
thereunder in respect of any occurrence or matter arising prior to any such
repeal or modification. The Certificate also specifically authorizes the
Registrant to maintain insurance and to grant similar indemnification rights to
the Registrant employees or agents.
The Delaware General Corporation Law permits a corporation to provide
in its certificate of incorporation that a director of the corporation shall not
be personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability for (i) any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) payments of unlawful dividends or unlawful
stock repurchases or redemptions, or (iv) any transaction from which the
director derived an improper personal benefit.
The Certificate provides that the Registrant's directors will not be
personally liable to the Registrant or the Registrant's stockholders for
monetary damages for breach of fiduciary duty as a director, except, if required
by the Delaware General Corporation Law as amended from time to time, for
liability (i) for any breach of the director's duty of loyalty to the Registrant
or the Registrant's stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law, which concerns
unlawful payments of dividends, stock purchases or redemptions, or (iv) for any
transaction from which the director derived an improper personal benefit.
Neither the amendment nor repeal of such provision will eliminate or reduce the
effect of such provision in respect of any matter occurring, or any cause of
action, suit or claim that, but for such provision, would accrue or arise prior
to such amendment or repeal.
3
<PAGE> 4
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1+ Amended and Restated Certificate of Incorporation of the Registrant
4.2 Second Amended and Restated Bylaws of the Registrant (filed as Exhibit
3.2 to Registrant's Registration Statement No. 333-78507 on Form S-1
and incorporated by reference herein)
4.3 Specimen of certificate for shares of Registrant's common stock (filed
as Exhibit 4.1 to Registrant's Registration Statement No. 333-78507 on
Form S-1 and incorporated by reference herein)
4.4+ Rights Agreement between the Registrant and Harris Trust and Savings
Bank, as Rights Agent, dated as of June 25, 1999
4.5 Warrant certificate issued to Funeaux & Company, LLC (filed as Exhibit
4.3 to Registrant's Registration Statement No. 333-78507 on Form S-1
and incorporated by reference herein)
4.6 Registration Rights Agreement by and among Registrant and certain of
its security holders, dated as of March 31, 1998 (filed as Exhibit
10.4.3 to Registrant's Registration Statement No. 333-78507 on Form S-1
and incorporated by reference herein)
5+ Opinion of Goodman Weiss Miller LLP
23.1+ Consent of PricewaterhouseCoopers LLP
23.2+ Consent of Goodman Weiss Miller LLP (included in Exhibit 5)
24+ Power of Attorney (included on page 7)
- ---------
+ Filed herewith.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of this Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in this Registration Statement;
and
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in
this Registration Statement or any material change to
such information in this Registration Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended, that are incorporated by
reference in this Registration Statement.
4
<PAGE> 5
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934, as amended, that is incorporated
by reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act of
1933, as amended, and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933, as amended, and will be governed by the final adjudication of such
issue.
5
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Akron, State of Ohio, on September 10, 1999.
AIRONET WIRELESS COMMUNICATIONS, INC.
By: /s/ Roger J. Murphy, Jr.
-------------------------------------
Roger J. Murphy, Jr.
President and Chief Executive Officer
POWER OF ATTORNEY AND SIGNATURES
Each of the undersigned Directors and Officers of AIRONET WIRELESS
COMMUNICATIONS, INC., a Delaware corporation (the "Registrant"), does hereby
make, constitute and appoint Roger J. Murphy, Jr. and Richard G. Holmes, and
each of them, his true and lawful attorneys-in-fact and agents. Each has full
power to act alone or together, without any other, and with power of
substitution and resubstitution, to execute for and on his behalf in his name
and in his capacity as a Director and/or Officer of the Registrant, and to
deliver and file or cause to be delivered and filed with the Commission a
Registration Statement on Form S-8 under the provisions of the Securities Act of
1933, as amended (the "Act"), with respect to shares of Registrant's Common
Stock, par value $.01 per share, that may be issued pursuant to the 1999
Employee Stock Purchase Plan, the 1999 Omnibus Stock Incentive Plan and the 1999
Stock Option Plan for Non-Employee Directors, together with any participation
interests under said which may constitute securities within the meaning of the
Act and any and all amendments to such Registration Statement, including all
exhibits thereto and other documents required in connection therewith, granting
to said attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing whatsoever as said
attorneys-in-fact and agents may deem necessary or advisable to carry out fully
the intent of the foregoing as the undersigned might or could do personally or
in the capacity as aforesaid, hereby ratifying and confirming all such acts and
things.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Roger J. Murphy, Jr. President and Chief Executive Officer September 10, 1999
----------------------------------
Roger J. Murphy, Jr.
/s/ Richard G. Holmes Senior Vice President and Chief Financial Officer September 10, 1999
----------------------------------
Richard G. Holmes
/s/ James H. Furneaux Director, Chairman of the Board September 10, 1999
----------------------------------
James H. Furneaux
/s/ Samuel F. McKay Director September 10, 1999
----------------------------------
Samuel F. McKay
/s/ John W. Paxton, Sr. Director September 10, 1999
----------------------------------
John W. Paxton, Sr.
</TABLE>
6
<PAGE> 7
INDEX TO EXHIBITS
4.1+ Amended and Restated Certificate of Incorporation of the Registrant
4.2 Second Amended and Restated Bylaws of the Registrant (filed as Exhibit
3.2 to Registrant's Registration Statement No. 333-78507 on Form S-1
and incorporated by reference herein)
4.3 Specimen of certificate for shares of Registrant's common stock (filed
as Exhibit 4.1 to Registrant's Registration Statement No. 333-78507 on
Form S-1 and incorporated by reference herein)
4.4+ Rights Agreement between the Registrant and Harris Trust and Savings
Bank, as Rights Agent, dated as of June 25, 1999
4.5 Warrant certificate issued to Funeaux & Company, LLC (filed as Exhibit
4.3 to Registrant's Registration Statement No. 333-78507 on Form S-1
and incorporated by reference herein)
4.6 Registration Rights Agreement by and among Registrant and certain of
its security holders, dated as of March 31, 1998 (filed as Exhibit
10.4.3 to Registrant's Registration Statement No. 333-78507 on Form S-1
and incorporated by reference herein)
5+ Opinion of Goodman Weiss Miller LLP
23.1+ Consent of PricewaterhouseCoopers LLP
23.2+ Consent of Goodman Weiss Miller LLP (included in Exhibit 5)
24+ Power of Attorney (included on page 7)
- ---------
+ Filed herewith.
7
<PAGE> 1
Exhibit 4.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
AIRONET WIRELESS COMMUNICATIONS, INC.
The name of the corporation (which is hereinafter referred to as the
"Corporation") is "Aironet Wireless Communications, Inc."
The original certificate of incorporation was filed with the Secretary
of State of the State of Delaware on August 25, 1993, under the name "Spider,
Inc." Such certificate of incorporation was amended on August 30, 1993, October
13, 1993, January 19, 1994, and June 20, 1996.
This Amended and Restated Certificate of Incorporation has been duly
approved and adopted by the Corporation's Board of Directors and stockholders,
and has been duly executed and acknowledged by the officers of the Corporation
in accordance with Sections 103, 242 and 245 of the General Corporation Law of
the State of Delaware.
The text of the Certificate of Incorporation of the Corporation is
hereby amended and restated to read in its entirety as follows:
ARTICLE I
---------
NAME
The name of the corporation (which is hereinafter referred to as the
"Corporation") is Aironet Wireless Communications, Inc.
ARTICLE II
----------
REGISTERED AGENT
The address of the registered office of the Corporation in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, City of Wilmington,
County of New Castle, Delaware 19801. The name of its registered agent at such
address is The Corporation Trust Company.
ARTICLE III
-----------
PURPOSE
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware as the same exists or may hereafter be amended
("Delaware Law").
<PAGE> 2
ARTICLE IV
----------
CAPITAL STOCK
SECTION 1. TOTAL NUMBER OF SHARES.
-----------------------
(a) The total number of shares of capital stock which the
Corporation shall have authority to issue is 60,500,000, consisting of
60,000,000 shares of Common Stock, par value of $0.01 per share (the
"Common Stock"), and 500,000 shares of Preferred Stock, par value of
$0.01 per share (the "Preferred Stock"). The Common Stock of the
Corporation shall be all of one class. The Preferred Stock may be
issued in one or more series having such designations as may be fixed
by the Board of Directors.
(b) The Board of Directors is expressly authorized to provide
for the issuance of all or any shares of the Common Stock and the
Preferred Stock, to determine the number of shares of each series and
to fix for each series of Common Stock and for any series of Preferred
Stock such voting powers, full or limited, or no voting powers, and
such designations, preferences and relative, participating, optional or
other special rights, and such qualifications, limitations or
restrictions thereof, as shall be stated and expressed in the
resolution or resolutions adopted by the Board of Directors or a duly
authorized committee thereof providing for the issue of such series and
as may be permitted by Delaware Law.
(c) The number of authorized shares of any class or classes of
stock may be increased or decreased (but not below the number of shares
thereof then outstanding) by the affirmative vote of a majority of the
Common Stock of the Corporation irrespective of the provisions of
Section 242(b)(2) of Delaware Law.
SECTION 2. COMMON STOCK.
-------------
(a) ISSUANCE AND CONSIDERATION. Any unissued or treasury
shares of the Common Stock may be issued for such consideration as may
be fixed in accordance with applicable law from time to time by the
Board of Directors.
(b) DIVIDENDS. Subject to the rights of holders of the
Preferred Stock, the holders of the Common Stock shall be entitled to
receive, when and as declared by the Board of Directors, out of the
assets of the Corporation which are by law available therefor,
dividends payable either in cash, in property, or in shares of stock,
and the holders of the Preferred Stock shall not be entitled to
participate in any such dividends (unless otherwise provided by the
Board of Directors in any resolution providing for the issue of a
series of Preferred Stock).
2
<PAGE> 3
(c) POWERS, PREFERENCES. The following is a statement of the
powers, preferences and relative participating, optional or other
special rights and qualifications, limitations and restrictions of the
Common Stock of the Corporation:
(1) The powers, preferences and relative
participating, optional or other special rights and
qualifications, limitations or restrictions of the shares of
Common Stock shall be identical in all respects.
(2) Subject to the rights of the holders of Preferred
Stock, and subject to any other provisions of this Amended and
Restated Certificate of Incorporation ("Certificate of
Incorporation"), holders of Common Stock shall be entitled to
receive such dividends and other distributions in cash, stock
of any corporation (including the Common Stock of the
Corporation) or property of the Corporation as may be declared
thereon by the Board of Directors from time to time out of
assets or funds of the Corporation legally available therefor
and shall share equally on a per share basis in all such
dividends and other distributions.
(3) (A) At every meeting of the stockholders of the
Corporation, every holder of Common Stock shall be entitled to
one vote in person or by proxy for each share of Common Stock
standing in his name on the transfer books of the Corporation
in connection with the election of directors and all other
matters submitted to a vote of stockholders.
(B) Every reference in this Certificate of
Incorporation to a majority or other proportion of shares of
Common Stock shall refer to such majority or other proportion
of the votes to which such shares of Common Stock are
entitled.
(4) In the event of any dissolution, liquidation or
winding up of the affairs of the Corporation, whether
voluntary or involuntary, after payment in full of the amounts
required to be paid to the holders of Preferred Stock, the
remaining assets and funds of the Corporation shall be
distributed pro rata to the holders of Common Stock. For
purposes of this paragraph, the voluntary sale, conveyance,
lease, exchange or transfer (for cash, shares of stock,
securities or other consideration) of all or substantially all
of the assets of the Corporation or a consolidation or merger
of the Corporation with one or more other corporations
(whether or not the Corporation is the corporation surviving
such consolidation or merger) shall not be deemed to be a
liquidation, dissolution or winding up, voluntary or
involuntary.
3
<PAGE> 4
SECTION 3. PREFERRED STOCK.
----------------
SERIES AND LIMITS OF VARIATIONS BETWEEN SERIES. Any unissued
or treasury shares of the Preferred Stock may be issued from time to
time in one or more series for such consideration as may be fixed from
time to time by the Board of Directors, and each share of a series
shall be identical in all respects with the other shares of such
series, except that, if the dividends thereon are cumulative, the date
from which they shall be cumulative may differ. Before any shares of
Preferred Stock of any particular series shall be issued, a certificate
shall be filed with the Secretary of State of Delaware setting forth
the designation, rights, privileges, restrictions and conditions to be
attached to the Preferred Stock of such series and such other matters
as may be required, and the Board of Directors shall fix and determine,
and is hereby expressly empowered to fix and determine, in the manner
provided by law, the particulars of the shares of such series (so far
as not inconsistent with the provisions of this Article IV applicable
to all series of Preferred Stock), including, but not limited to, the
following:
(a) the distinctive designation of such series and the number
of shares which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors in creating such series) or decreased (but not below
the number of shares thereof then outstanding) from time to
time by like action of the Board of Directors;
(b) the annual rate of dividends payable on shares of such
series, the conditions upon which such dividends shall be
payable and the date from which dividends shall be cumulative
in the event the Board of Directors determines that dividends
shall be cumulative;
(c) whether such series shall have voting rights, in addition
to the voting rights provided by law and, if so, the terms of
such voting rights;
(d) whether such series shall have conversion privileges and,
if so, the terms and conditions of such conversion privileges,
including, but not limited to, provision for adjustment of the
conversion rate upon such events and in such manner as the
Board of Directors shall determine;
(e) whether or not the shares of such series shall be
redeemable and, if so, the terms and conditions of such
redemption, including the date or dates upon or after which
they shall be redeemable, and the amount per share payable in
case of redemption, which amount may vary under different
conditions and at different redemption dates;
4
<PAGE> 5
(f) whether such series shall have a sinking fund for the
redemption or purchase of shares of that series and, if so,
the terms and amount of such sinking fund;
(g) the rights of the shares of such series in the event of
voluntary or involuntary liquidation, dissolution or winding
up of the Corporation, and the relative rights of priority, if
any, of payment of shares of that series; and
(h) any other relative rights, preferences and limitations of
or otherwise relating to such series.
SECTION 4. NO PREEMPTIVE RIGHTS. Except as otherwise set forth above in
this Article IV, no holder of shares of this Corporation of any class shall be
entitled, as such, as a matter of right, to subscribe for or purchase shares of
any class now or hereafter authorized, or to purchase or subscribe for
securities convertible into or exchangeable for shares of the Corporation or to
which there shall be attached or appertain any warrants or rights entitling the
holders thereof to purchase or subscribe for shares.
ARTICLE V
---------
BYLAWS AMENDMENT
SECTION 1. AMENDMENT OF BYLAWS BY DIRECTORS. In furtherance and not in
limitation of the powers conferred by statute, the Board of Directors is
expressly authorized to make, repeal, alter, amend and rescind the Bylaws of the
Corporation.
SECTION 2. AMENDMENT OF BYLAWS BY THE STOCKHOLDERS. The Bylaws shall
not be made, repealed, altered, amended or rescinded by the stockholders of the
Corporation except by the vote of not less than eighty percent (80%) of the
outstanding shares of the Corporation entitled to vote thereon. Any amendment to
this Certificate of Incorporation which shall contravene any bylaw in existence
on the record date of the stockholders meeting at which such amendment is to be
voted upon by the stockholders shall require the vote of not less than eighty
percent (80%) of the outstanding shares entitled to vote thereon.
ARTICLE VI
----------
BOARD OF DIRECTORS
SECTION 1. CLASSIFIED BOARD. The number of directors of the Corporation
(exclusive of directors to be elected by the holders of any one or more series
of Preferred Stock voting separately as a class or classes) shall be five (5) or
such other number as may be fixed from time to time by action of not less than a
majority of the members of the Board of Directors then in office but in no event
more than nine (9) or less than three (3). Nominations for directors shall
5
<PAGE> 6
be made in accordance with the Bylaws. The Board of Directors (exclusive of
directors to be elected by the holders of any one or more series of Preferred
Stock voting separately as a class or classes) shall be divided into three
classes, Class A, Class B and Class C. The number of directors in each class
shall be the whole number contained in the quotient arrived at by dividing the
authorized number of directors by three, and if a fraction is also contained in
such quotient, then if such fraction is one-third, the extra director shall be a
member of Class A and if the fraction is two-thirds, one of the extra directors
shall be a member of Class A and the other shall be a member of Class B. Each
director shall serve for a term ending on the date of the third annual meeting
following the annual meeting at which such director was elected; provided,
however, that the directors first elected to Class A shall serve for a term
ending on the date of the annual meeting next following the end of the calendar
year 1999, the directors first elected to Class B shall serve for a term ending
on the date of the second annual meeting next following the end of the calendar
year 2000, and the directors first elected to Class C shall serve for a term
ending on the date of the third annual meeting next following the end of the
calendar year 2001. Notwithstanding the foregoing formula provisions, in the
event that, as a result of any change in the authorized number of directors, the
number of directors in any class would differ from the number allocated to that
class under the formula provided in this Article VI immediately prior to such
change, the following rules shall govern:
(a) each director then serving as such shall nevertheless
continue as a director of the class of which such director is a member
until the expiration of his current term, death, resignation or
removal;
(b) at each subsequent election of directors, even if the
number of directors in the class whose term of office then expires is
less than the number then allocated to that class under said formula,
the number of directors then elected for membership in that class shall
not be greater than the number of directors in that class whose term of
office then expires, unless and to the extent that the aggregate number
of directors then elected plus the number of directors in all classes
then duly continuing in office does not exceed the then authorized
number of directors of the Corporation;
(c) at each subsequent election of directors, if the number of
directors in the class whose term of office then expires exceeds the
number then allocated to that class under said formula, the Board of
Directors shall designate one or more of the directorships then being
elected as directors of another class or classes in which the number or
directors then serving is less than the number then allocated to such
other class or classes under said formula;
(d) in the event of the death, resignation or removal of any
director who is a member of a class in which the number of directors
serving immediately preceding the creation of such vacancy exceeded the
number then allocated to that class under said formula, the Board of
Directors shall designate the vacancy thus created as a vacancy in
6
<PAGE> 7
another class in which the number of directors then serving is less
than the number then allocated to such other class under said formula;
(e) in the event of any increase in the authorized number of
directors, the newly created directorships resulting from such increase
shall be apportioned by the Board of Directors to such class or classes
as shall, so far as possible, bring the composition of each of the
classes into conformity with the formula in this Article VI, as it
applies to the number of directors authorized immediately following
such increase; and
(f) designation of directorships or vacancies into other
classes and apportionments of newly created directorships to classes by
the Board of Directors under the foregoing items (c), (d) and (e)
shall, so far as possible, be effected so that the class whose term of
office is due to expire next following such designation or
apportionment shall contain the full number of directors then allocated
to said class under said formula. Notwithstanding any of the foregoing
provisions of this Article VI, each director shall serve until his
successor is elected and qualified or until his death, resignation or
removal.
SECTION 2. ELECTION BY HOLDERS OF PREFERRED STOCK. During any period
when the holders of any Preferred Stock or any one or more series thereof,
voting as a class, shall be entitled to elect a specified number of directors,
by reason of dividend arrearages or other provisions giving them the right to do
so, then and during such time as such right continues (i) the then otherwise
authorized number of directors shall be increased by such specified number of
directors, and the holders of such Preferred Stock or such series thereof,
voting as a class, shall be entitled to elect the additional director(s) so
provided for, pursuant to the provisions of such Preferred Stock or series; (ii)
each such additional director shall serve for such term, and have such voting
powers, as shall be stated in the provisions pertaining to such Preferred Stock
or series; and (iii) whenever the holders of any such Preferred Stock or series
thereof are divested of such rights to elect a specified number of directors,
voting as a class, pursuant to the provisions of such Preferred Stock or series,
the terms of office of all directors elected by the holders of such Preferred
Stock or series, voting as a class pursuant to such provisions or elected to
fill any vacancies resulting from the death, resignation or removal of directors
so elected by the holders of such Preferred Stock or series, shall forthwith
terminate and the authorized number of directors shall be reduced accordingly.
SECTION 3. BALLOTS. Elections of directors at an annual or special
meeting of stockholders need not be by written ballot unless the bylaws of the
Corporation shall provide otherwise.
SECTION 4. INITIAL DIRECTORS. The directors of the Corporation shall,
at the date hereof, be:
(a) Class A Directors
(i) John W. Paxton
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<PAGE> 8
(b) Class B Directors
(i) Samuel F. McKay
(ii) vacant (to be filled as a newly-created seat
under the Bylaws)
(c) Class C Directors
(i) Roger J. Murphy, Jr.
(ii) James H. Furneaux
ARTICLE VII
-----------
STOCKHOLDER ACTION
No action shall be taken by the stockholders except at a duly called
annual or special meeting of stockholders and may not be effected by any consent
in writing by such stockholders.
ARTICLE VIII
------------
ACQUISITION EVALUATION
The Board of Directors of the Corporation, when evaluating any offer of
another party to (i) make a tender or exchange offer for any equity security of
the Corporation; (ii) merge or consolidate the Corporation with another
corporation; or (iii) purchase or otherwise acquire all or substantially all of
the properties and assets of the Corporation, shall in connection with the
exercise of its judgment in determining what is in the best interests of the
Corporation and its stockholders, give due consideration to all relevant
factors, including without limitation the social and economic effects on the
employees, customers, suppliers and other constituents of the Corporation and
its subsidiaries and on the communities in which the Corporation and its
subsidiaries operate or are located.
ARTICLE IX
----------
REMOVAL OF DIRECTOR
Any director may be removed at any annual or special stockholders'
meeting upon the affirmative vote of not less than eighty percent (80%) of the
outstanding shares of voting stock of the Corporation at that time entitled to
vote thereon; provided, however, that such director may be removed only for
cause and shall receive a copy of the charges against him, delivered to him
personally or by mail at his last known address at least ten (10) days prior to
the date of the stockholders' meeting; AND PROVIDED FURTHER, that directors who
shall have been elected by the
8
<PAGE> 9
holders of a series or class of Preferred Stock, voting separately as a class,
shall be removed only pursuant to the provisions establishing the rights of such
series or class to elect such directors.
ARTICLE X
---------
AMENDMENT OF CERTIFICATE OF INCORPORATION
SECTION 1. AMENDMENT OF CERTAIN ARTICLES. The provisions set forth in
this Article X and in Articles V; VI, Sections 1 and 5; VII; VIII; IX; XI and
XII may not be amended, altered, changed or repealed in any respect unless such
amendment, alteration, change or repealer is approved by the affirmative vote of
not less than eighty percent (80%) of the outstanding shares of the Corporation
entitled to vote thereon; provided that with respect to any proposed amendment,
alteration or change to this Certificate of Incorporation, or repealing of any
provision of this Certificate of Incorporation, which would amend, alter or
change the powers, preferences or special rights of the shares of Common Stock
so as to affect them adversely, the affirmative vote of not less than eighty
percent (80%) of the outstanding shares affected by the proposed amendment,
voting as a separate class, shall be required in addition to the vote otherwise
required pursuant to this Article X; and PROVIDED, FURTHER, that with respect to
any amendment, alteration or change to, or repealing of, any provision of
Article XI, the affirmative vote of not less than eighty percent (80%) of the
outstanding shares of the Corporation entitled to vote thereon, other than and
excepting shares held by the Interested Person (as referred to and defined in
Article XI) (if any) seeking or proposing to effect any transaction involving
the Corporation or any subsidiary of the Corporation, shall be required in
addition to the vote otherwise required pursuant to this Article X.
SECTION 2. AMENDMENTS GENERALLY. Subject to the provisions of Section 1
of this Article X, the Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred on
stockholders herein are granted subject to this reservation.
ARTICLE XI
----------
BUSINESS COMBINATION
SECTION 1. DELAWARE LAW SECTION 203. This Article XI is in addition to,
not in limitation of, Delaware Law section 203.
SECTION 2. VOTE REQUIRED FOR CERTAIN BUSINESS COMBINATIONS. The
affirmative vote of not less than seventy-five percent (75%) of the outstanding
shares of "Voting Stock" (as hereinafter defined) held by stockholders other
than the "Interested Person" (as hereinafter defined) seeking to effect a
"Business Combination" (as hereinafter defined) shall be required for the
approval or authorization of any Business Combination with any Interested
Person.
9
<PAGE> 10
SECTION 3. DEFINITIONS. Certain words and terms as used in this Article
XI shall have the meanings given to them by the definitions and descriptions in
this Section.
(a) BUSINESS COMBINATION. The term "Business Combination"
shall mean (i) any merger or consolidation of the Corporation or a
subsidiary of the Corporation with or into an Interested Person; (ii)
any sale, lease, exchange, transfer or other disposition, including
without limitation, a mortgage or any other security device, of all or
any "Substantial Part" (as hereinafter defined) of the assets either of
the Corporation (including without limitation, any voting securities of
a subsidiary) or of a subsidiary of the Corporation to an Interested
Person; (iii) any merger or consolidation of an Interested Person with
or into the Corporation or a subsidiary of the Corporation; (iv) any
sale, lease, exchange, transfer or other disposition, including without
limitation, a mortgage or other security device, of all or any
Substantial Part of the assets of an Interested Person to the
Corporation or a subsidiary of the Corporation; (v) the issuance or
transfer by the Corporation or any subsidiary of the Corporation of any
securities of the Corporation or a subsidiary of the Corporation to an
Interested Person; (vi) any reclassification of securities,
recapitalization or other comparable transaction involving the
Corporation that would have the effect of increasing the voting power
of any Interested Person with respect to Voting Stock of the
Corporation; and (vii) any agreement, contract or other arrangement
providing for any of the transactions described in this definition of
Business Combination.
(b) INTERESTED PERSON. The term "Interested Person" shall mean
and include any individual, corporation, partnership or other person or
entity which, together with its "Affiliates" and "Associates" (as
defined in Rule 12b-2 of the General Rules and Regulations under the
Securities Act of 1934 as in effect at the date of the adoption of this
Article XI by the stockholders of the Corporation), "Beneficially Owns"
(as defined in Rule 13d-3 of the General Rules and Regulations under
the Securities Exchange Act of 1934 as in effect at the date of the
adoption of this Article XI by the stockholders of the Corporation) in
the aggregate five percent (5%) or more of the outstanding Voting Stock
of the Corporation, and any Affiliate or Associate of any such
individual, corporation, partnership or other person or entity. Without
limitation, any share of Voting Stock of the Corporation that any
Interested Person has the right to acquire at any time (notwithstanding
that Rule 13d-3 deems such shares to be beneficially owned only if such
right may be exercised within sixty (60) days) pursuant to any
agreement, or upon exercise of conversion rights, warrants or options,
or otherwise, shall be deemed to be Beneficially Owned by the
Interested Person and to be outstanding for purposes of this
definition. An Interested Person shall be deemed to have acquired a
share of the Voting Stock of the Corporation at the time when such
Interested Person became the Beneficial Owner thereof. With respect to
the shares owned by Affiliates, Associates or other persons whose
ownership is attributed to an Interested Person under the foregoing
definition of Interested Person, if the price paid by such Interested
Person for such shares is not determinable by two-thirds of the
Continuing Directors, the price so paid shall be deemed to be the
higher of (i) the price paid upon the acquisition thereof by the
Affiliate, Associate or other person
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<PAGE> 11
or (ii) the market price of the shares in question at the time when the
Interested Person became the Beneficial Owner thereof.
(c) VOTING STOCK. The term "Voting Stock" shall mean all of
the outstanding shares of Common Stock of the Corporation and any
outstanding shares of Preferred Stock entitled to vote on each matter
on which the holders of record of Common Stock shall be entitled to
vote, and each reference to a proportion of shares of Voting Stock
shall refer to such proportion of the votes entitled to be cast by all
of such shares.
(d) SUBSTANTIAL PART. The term "Substantial Part" shall mean
more than twenty percent (20%) of the fair market value of the total
consolidated assets of the Corporation and its subsidiaries taken as a
whole as of the end of its most recent fiscal year ended prior to the
time the determination is being made, and determined by a vote of
two-thirds of the Corporation's directors.
ARTICLE XII
-----------
RELATED PARTY TRANSACTIONS
SECTION 1. VALIDITY OF AGREEMENTS. No contract, agreement, arrangement
or transaction (or any amendment, modification or termination thereof) between
the Corporation and any Related Entity (as defined below) or between the
Corporation and one or more of the directors or officers of the Corporation or
any Related Entity, shall be void or voidable solely for the reason that any
Related Entity or any one or more of the officers or directors of the
Corporation or any Related Entity are parties thereto, or solely because any
such directors or officers are present at or participate in the meeting of the
Board of Directors or committee thereof which authorizes the contract,
agreement, arrangement, transaction, amendment, modification or termination or
solely because his or their votes are counted for such purpose, but any such
contract, agreement, arrangement or transaction (or any amendment, modification
or termination thereof) shall be governed by the provisions of this Certificate
of Incorporation, the Corporation's Bylaws, Delaware Law and other applicable
law. For purposes of this Article XII, (i) the term "Related Entity" means one
or more directors of this Corporation, or one or more corporations,
partnerships, associations or other organizations in which one or more of its
directors have a direct or indirect financial interest and (ii) the term
"Corporation" shall mean the Corporation and all corporations, partnerships,
joint ventures, associations and other entities in which the Corporation
beneficially owns (directly or indirectly) fifty percent (50%) or more of the
outstanding voting stock, voting power or similar voting interests.
SECTION 2. DUAL DIRECTORSHIPS. Directors of the Corporation who are
also directors or officers of any Related Entity may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a
committee that authorizes or approves any such contract, agreement, arrangement
or transaction (or amendment, modification or termination thereof). Outstanding
Shares of Common Stock owned by any Related Entity may be counted in
11
<PAGE> 12
determining the presence of a quorum at a meeting of stockholders that
authorizes or approves any such contract, agreement, arrangement or transaction
(or amendment, modification or termination thereof).
SECTION 3. GOOD FAITH ACTIVITY. No officer or director of any Related
Entity shall be liable to the Corporation or its stockholders for breach of any
fiduciary duty or duty of loyalty or failure to act in (or not opposed to) the
best interests of the Corporation or the derivation of any improper personal
benefit by reason of the fact that an officer or director of such Related Entity
in good faith takes any action or exercises any rights or gives or withholds any
consent in connection with any agreement or contract between any Related Entity
and the Corporation. No vote cast or other action taken by any person who is an
officer, director or other representative of such Related Entity, which vote is
cast or action is taken by such person in his capacity as a director of the
Corporation, shall constitute an action of or the exercise of a right by or a
consent of such Related Entity for the purpose of any such agreement or
contract.
SECTION 4. NOTICE AND WAIVER. Any person or entity purchasing or
otherwise acquiring any interest in any shares of capital stock of the
Corporation shall be deemed to have notice of, to understand the ramifications
of, to have consented to the provisions of, and, to the fullest extent permitted
by Delaware Law, to have waived his right to contest this Article XII.
SECTION 5. ALTER EGO. For purposes of this Article XII, any contract,
agreement, arrangement or transaction with any corporation, partnership, joint
venture, association or other entity in which the Corporation beneficially owns
(directly or indirectly) fifty percent (50%) or more of the outstanding voting
stock, voting power or similar voting interests, or with any officer or director
thereof, shall be deemed to be a contract, agreement, arrangement or transaction
with the Corporation.
SECTION 6. EFFECTIVENESS. Neither the alteration, amendment, change or
repeal of any provision of this Article XII nor the adoption of any provision
inconsistent with any provision of this Article XII shall eliminate or reduce
the effect of this Article XII in respect of any matter occurring, or any cause
of action, suit or claim that, but for this Article XII, would accrue or arise,
prior to such alteration, amendment, change, repeal or adoption.
SECTION 7. NON-EXCLUSIVE PROVISIONS. The provisions of this Article XII
are in addition to the provisions of Article VI, Section 5.
ARTICLE XIII
------------
LIMITED LIABILITY; INDEMNIFICATION
SECTION 1. LIMITED LIABILITY OF DIRECTORS. A director of the
Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of
12
<PAGE> 13
fiduciary duty as a director, except, if required by Delaware Law, as amended
from time to time, for liability (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders; (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law; (iii) under Section 174 of Delaware Law; or (iv) for any transaction from
which the director derived an improper personal benefit. Neither the amendment
nor repeal of Section 1 of this Article XIII shall eliminate or reduce the
effect of Section 1 of this Article XIII in respect of any matter occurring, or
any cause of action, suit or claim that, but for Section 1 of this Article XIII
would accrue or arise, prior to such amendment or repeal.
SECTION 2. INDEMNIFICATION AND INSURANCE.
------------------------------
(a) RIGHT TO INDEMNIFICATION. Each person who was or is made a
party or is threatened to be made a party to or is involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "Proceeding"), by reason of the fact that
such person, or a person of whom such person is the legal
representative, is or was a director or officer of the Corporation or
is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding
is alleged action in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a director,
officer, employee or agent, shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by Delaware Law, as
the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment), against
all expense, liability and loss (including attorneys' fees, judgments,
fines, amounts paid or to be paid in settlement, and excise taxes or
penalties arising under the Employee Retirement Income Security Act of
1974, as in effect from time to time) reasonably incurred or suffered
by such person in connection therewith and such indemnification shall
continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of such person's
heirs, executors and administrators; provided, however, that, except as
provided in paragraph (b) hereof, the Corporation shall indemnify any
such person seeking indemnification in connection with a proceeding (or
part thereof) initiated by such person only if such proceeding (or part
thereof) was authorized by the Board of Directors. The right to
indemnification conferred in this Section shall be a contract right and
shall include the right to have the Corporation pay the expenses
incurred in defending any such proceeding in advance of its final
disposition; any advance payments to be paid by the Corporation within
twenty (20) calendar days after the receipt by the Corporation of a
statement or statements from the claimant requesting such advance or
advances from time to time; provided, however, that, if and to the
extent Delaware law requires, the payment of such expenses incurred by
a director or officer in such person's capacity as a director or
officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service
13
<PAGE> 14
to an employee benefit plan) in advance of the final disposition of a
proceeding, shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this
Section or otherwise. The Corporation may, to the extent authorized
from time to time by the Board of Directors, grant rights to
indemnification, and rights to have the Corporation pay the expenses
incurred in defending any proceeding in advance of its final
disposition, to any employee or agent of the Corporation to the fullest
extent of the provisions of this Article with respect to the
indemnification and advancement of expenses of directors and officers
of the Corporation.
(b) RIGHT OF CLAIMANT TO BRING SUIT. If a claim under
paragraph (a) of this Section is not paid in full by the Corporation
within thirty (30) calendar days after a written claim has been
received by the Corporation, the claimant may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the
claim and, if successful in whole or in part, the claimant shall be
entitled to be paid also the expense of prosecuting such claim. It
shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding in
advance of its final disposition where the required undertaking, if any
is required, has been tendered to the Corporation) that the claimant
has not met the standard of conduct which makes it permissible under
Delaware Law for the Corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its
Board of Directors, independent legal counsel or its stockholders) to
have made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because
the claimant has met the applicable standard of conduct set forth in
Delaware Law, nor an actual determination by the Corporation (including
its Board of Directors, independent legal counsel, or its stockholders)
that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
(c) NON-EXCLUSIVITY OF RIGHTS. The right to indemnification
and the payment of expenses incurred in defending a proceeding in
advance of its final disposition conferred in this Section shall not be
exclusive of any other right which any person may have or hereafter
acquire under any statute, provision of the Certificate of
Incorporation, Bylaw, agreement, vote of stockholders or disinterested
directors or otherwise. No repeal or modification of this Article shall
in any way diminish or adversely affect the rights of any director,
officer, employee or agent of the Corporation hereunder in respect of
any occurrence or matter arising prior to any such repeal or
modification.
(d) INSURANCE. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent
of the Corporation or another corporation, partnership, joint venture,
trust or other enterprise against any such expense,
14
<PAGE> 15
liability or loss, whether or not the Corporation would have the power
to indemnify such person against such expense, liability or loss under
Delaware Law.
(e) SEVERABILITY. If any provision or provisions of this
Article XIII shall be held to be invalid, illegal or unenforceable for
any reason whatsoever: (1) the validity, legality and enforceability of
the remaining provisions of this Article XIII (including, without
limitation, each portion of any paragraph of this Article XIII
containing any such provision held to be invalid, illegal or
unenforceable, that is not itself held to be invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby and
(2) to the fullest extent possible, the provisions of this Article XIII
(including, without limitation, each such portion of any paragraph of
this Article XIII containing any such provision held to be invalid,
illegal or unenforceable) shall be construed so as to give effect to
the intent manifested by the provision held invalid, illegal or
unenforceable.
ARTICLE XIV
-----------
GENDER AND FORM
Whenever the context may require, any pronouns used in this Certificate
of Incorporation shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns, including capitalized terms
defined herein, shall include the plural and vice versa. "Including" and words
of similar import shall be construed as words of inclusion and not of limitation
such that matters described following such words of inclusion shall be regarded
as nonexclusive, noncharacterizing illustrations of the matters described prior
to such words of inclusion.
ARTICLE XV
----------
EFFECTIVE DATE
Upon the adoption of this Certificate of Incorporation by the
stockholders of the Corporation and its filing by the Secretary of State of
Delaware as required by applicable provisions of Delaware Law, this Certificate
of Incorporation shall become effective and shall supersede the existing
Certificate of Incorporation, as amended to date.
15
<PAGE> 16
IN WITNESS WHEREOF, this Certificate of Incorporation has been duly
adopted by the written consent of the stockholders of the Corporation in
accordance with the provisions of Sections 228, 242 and 245 of Delaware Law and
has been executed this 20th day of July, 1999.
AIRONET WIRELESS COMMUNICATIONS, INC.
By: /s/ Roger J. Murphy
-----------------------------------
Roger J. Murphy, President
Attest:
/s/ Jay R. Faeges
--------------------------------------
Jay R. Faeges, Secretary
16
<PAGE> 1
Exhibit 4.4
- --------------------------------------------------------------------------------
AIRONET WIRELESS COMMUNICATIONS, INC.
and
HARRIS TRUST AND SAVINGS BANK
as
Rights Agent
-------------------------------
Rights Agreement
-------------------------------
Dated as of
June 25, 1999
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C> <C>
Section 1. Certain Definitions.............................................................................1
Section 2. Appointment of Rights Agent.....................................................................7
Section 3. Issuance of Rights Certificates.................................................................8
Section 4. Form of Rights Certificate.....................................................................11
Section 5. Countersignature and Registration..............................................................12
Section 6. Transfer, Split Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen Rights Certificates.........................13
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights..................................14
Section 8. Cancellation and Destruction of Rights Certificates............................................17
Section 9. Reservation and Availability of Common Stock...................................................18
Section 10. Common Stock Record Date.......................................................................20
Section 11. Adjustment of Purchase Price, Number and Kind of Shares or
Number of Rights...............................................................................21
Section 12. Certificate of Adjusted Purchase Price or Number of Shares.....................................33
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power...........................34
Section 14. Additional Covenants...........................................................................39
Section 15. Fractional Rights and Fractional Shares........................................................40
Section 16. Rights of Action...............................................................................42
Section 17. Agreement of Rights Holders....................................................................42
Section 18. Rights Certificate Holder Not Deemed a Stockholder.............................................44
Section 19. Concerning the Rights Agent....................................................................44
Section 20. Merger or Consolidation or Change of Name of Rights Agent......................................45
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
<S> <C> <C>
Section 21. Duties of Rights Agent.........................................................................46
Section 22. Change of Rights Agent.........................................................................50
Section 23. Issuance of New Rights Certificates............................................................52
Section 24. Redemption and Termination.....................................................................53
Section 25. Notice of Certain Events.......................................................................54
Section 26. Notices........................................................................................55
Section 27. Supplements and Amendments.....................................................................56
Section 28. Successors.....................................................................................56
Section 29. Benefits of this Agreement.....................................................................57
Section 30. Severability...................................................................................57
Section 31. Governing Law..................................................................................58
Section 32. Counterparts...................................................................................58
Section 33. Descriptive Headings...........................................................................58
</TABLE>
ii
<PAGE> 4
RIGHTS AGREEMENT
This Agreement ("Agreement") is dated as of June 25, 1999 between
Aironet Wireless Communications, Inc., a Delaware corporation (the "Company"),
and Harris Trust and Savings Bank, an Illinois banking corporation (the "Rights
Agent") and will become effective immediately upon the closing of the Company's
initial firm commitment public offering.
W I T N E S S E T H:
WHEREAS, on April 12, 1999, the Board of Directors of the Company
authorized and declared a dividend distribution of one Right (as defined below)
for each share of Common Stock (as defined below) outstanding the date of this
Agreement (the "Record Date"), and contemplated the issuance of one Right for
each share of Common Stock issued between the Record Date and the earlier of the
Distribution Date and the Expiration Date (as such capitalized terms are defined
below) and certain shares of Common Stock issued after the Distribution Date,
each Right representing the right to purchase Common Stock upon the terms and
subject to the conditions set forth in this Agreement (the "Rights"); and
WHEREAS, the Board of Directors of the Company determined it advisable
and in the best interest of the Company and its stockholders to enter into this
Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth, the parties agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the
following terms have the meaning indicated:
"Act" means the Securities Act of 1933, as amended.
"Acquiring Person" means any Person (as defined below) who or which
alone or, together with all Affiliates (as defined below) and Associates (as
defined below) of such Person, shall be the
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<PAGE> 5
Beneficial Owner (as defined below) of fifteen percent (15%) or more of the
shares of Common Stock then outstanding or who was such a Beneficial Owner at
any time after the date of this Agreement, whether or not such Person continues
to be the Beneficial Owner of fifteen percent (15%) or more of the shares of
Common Stock outstanding from time to time, but does not include an Exempt
Person (as defined below).
"Acquisition Date" means the first date of public announcement (which
for purposes of this definition shall include, without limitation, a report
filed pursuant to Section 13(d) under the Exchange Act (as defined below)) by
the Company or by an Acquiring Person that an Acquiring Person has become such.
"Affiliate" and "Associate" have the respective meanings ascribed to
such terms in Rule 12b-2 of the General Rules and Regulations under the Exchange
Act, as in effect on the date of this Agreement.
A "Person" shall be deemed the "Beneficial Owner" of, and shall be
deemed to "beneficially own," any securities:
(i) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to acquire (whether such right
is exercisable immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding (whether or not in writing), or upon the
exercise of any conversion, exchange or purchase rights, warrants or options, or
otherwise; provided, however, that a Person shall not be deemed the "Beneficial
Owner" of, or to "beneficially own," (A) securities tendered pursuant to a
tender or exchange offer made by or on behalf of such Person or any of such
Person's Affiliates or Associates until such tendered securities are accepted
for payment or exchange; (B) securities issuable upon the exercise of Rights at
any time
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<PAGE> 6
prior to the occurrence of a Triggering Event (as defined below); or (C)
securities issuable upon the exercise of Rights from and after the occurrence of
a Triggering Event, which Rights were acquired by such Person or any of such
Person's Affiliates or Associates prior to the Distribution Date pursuant to
Section 23 (the "Original Rights") or pursuant to Section 11(i) in connection
with any adjustment made with respect to any Original Rights;
(ii) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to vote or dispose of or has
beneficial ownership of (as determined pursuant to Rule 13d-3 of the General
Rules and Regulations under the Exchange Act or any successor rule thereto),
including pursuant to any agreement, arrangement or understanding (whether or
not in writing); provided, however, that a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially own," any securities under this
Section 1(e)(ii) as a result of an agreement, arrangement or understanding to
vote such security which: (A) arises solely by reason of the grant of a
revocable proxy or consent to any Person who shall have obtained such proxy or
consent pursuant to and as a result of a public proxy or consent solicitation
subject to and conducted in accordance with the applicable provisions of the
Exchange Act and the applicable rules and regulations thereunder and (B) also is
not then reportable on Schedule 13D under the Exchange Act (or any comparable or
successor report); or
(iii) which are "beneficially owned," directly or indirectly,
by any other Person (or any Affiliate or Associate thereof) with which such
Person or any of such Person's Affiliates or Associates has any agreement,
arrangement or understanding (whether or not in writing) for the purpose of
acquiring, holding, voting (except pursuant to a revocable proxy as described in
clause (A) of subparagraph (ii) of this Section 1(e)) or disposing of any
securities of the Company; provided,
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<PAGE> 7
however, that nothing in this Section 1(e) shall cause a Person engaged in
business as an underwriter of securities to be the "Beneficial Owner" of, or to
"beneficially own," any securities acquired through such Person's participation
in good faith in a firm commitment underwriting until the expiration of forty
(40) days after the date of such acquisition.
"Board" means the Board of Directors of the Company.
"Business Day" means any day other than a Saturday, Sunday or a day on
which banking institutions in the States of Ohio or Illinois are authorized or
obligated by law or executive order to close.
"Close of Business" on any given date means 5:00 P.M., Cleveland, Ohio
time, on such date; provided, however, that if such date is not a Business Day
it means 5:00 P.M., Cleveland, Ohio time, on the next succeeding Business Day.
"Common Stock" means the common stock, presently having a par value of
$.01 per share, of the Company or any other shares of capital stock of the
Company into which such stock shall be reclassified or changed; provided,
however, that (i) "Common Stock," when used with reference to any Person other
than the Company organized in corporate form, means the capital stock or other
equity security with the greatest voting power, or the equity securities or
other equity interest having power to control or direct the management, of such
Person or, if such Person is a subsidiary of another Person, the Person which
ultimately controls such first-mentioned Person and which has issued any such
outstanding capital stock, equity securities or equity interests and (ii)
"Common Stock," when used with reference to any Person which shall not be
organized in corporate form, means units of beneficial interest which (A) shall
represent the right to participate generally in the profits and losses of such
Person (including, without limitation, any flow-through tax benefits
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<PAGE> 8
resulting from an ownership interest in such Person) and (B) shall be entitled
to exercise the greatest voting power of such Person or, in the case of a
limited partnership, shall have the power to remove the general partner or
partners.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exempt Person" means: (i) the Company; (ii) any subsidiary of the
Company; (iii) any employee benefit plan of the Company or of any subsidiary of
the Company; (iv) any Person or entity organized, appointed or established by
the Company for or pursuant to the terms of any such plan; (v) any Person who
obtains the approval of the Board and is deemed by the Board not to be an
Acquiring Person prior to such Person otherwise becoming an Acquiring Person;
(vi) any Person who on the Record Date is the Beneficial Owner of fifteen
percent (15%) or more of the shares of Common Stock of the Company then
outstanding (a "Record Date Owner"), unless and until such time as the Record
Date Owner shall directly or indirectly purchase or otherwise become (as a
result of actions taken by the Record Date Owner or its Affiliates or
Associates) the Beneficial Owner of any additional shares of Common Stock of the
Company, or unless and until, directly or indirectly, (x) the Record Date Owner
shall consolidate or otherwise combine with, or merge with and into any other
Person and the Record Date Owner shall not be the continuing or surviving
corporation of such consolidation, combination or merger, (y) any Person shall
consolidate or otherwise combine with the Record Date Owner, or merge with and
into the Record Date Owner and the Record Date Owner shall be the continuing or
surviving corporation of such consolidation, combination or merger and, in
connection with such consolidation, combination or merger, all or part of the
shares of Common Stock of the Record Date Owner shall be changed into or
exchanged for stock or other securities of any other Person or cash or any other
property, or (z) the Record Date Owner shall sell, mortgage
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<PAGE> 9
or otherwise transfer (or one or more of its subsidiaries shall sell, mortgage
or otherwise transfer), in one or more transactions, assets or earning power
aggregating more than fifty percent (50%) of the assets or earning power of the
Record Date Owner and its subsidiaries (taken as a whole) to any other Person
(upon any such event in this part (vi) the Exempt Person shall become an
Acquiring Person); (vii) any Person who, together with its Affiliates and
Associates, becomes the Beneficial Owner of fifteen percent (15%) or more of the
shares of Common Stock of the Company then outstanding solely as a result of a
reduction in the number of shares of Common Stock of the Company outstanding due
to the repurchase of shares of Common Stock of the Company by the Company,
unless and until such time as such Person shall purchase or otherwise become (as
a result of actions taken by such Person or its Affiliates or Associates) the
Beneficial Owner of additional shares of Common Stock of the Company
constituting one percent (1%) or more of the then outstanding shares of Common
Stock of the Company; or (viii) any Person whom the Board determines became an
Acquiring Person solely as a result of inadvertence, provided, however, that
such Person divests as promptly as practicable a sufficient number of shares of
Common Stock so that such Person, together with all Affiliates and Associates of
such Person, would no longer be the Beneficial Owner of fifteen percent (15%) or
more of the shares of Common Stock outstanding.
"Expiration Date" shall have the meaning set forth in Section 7(a) of
this Agreement.
"Final Expiration Date" shall have the meaning set forth in Section
7(a) of this Agreement.
"Person" means any individual, firm, corporation, partnership, trust,
limited liability company or other entity and shall include any successor (by
merger or otherwise) of such entity.
"Section 11(a)(ii) Event" shall have the meaning set forth in Section
11(a)(ii) of this Agreement.
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"Section 13 Event" shall have the meaning set forth in Section 13(a) of
this Agreement.
A "Subsidiary" of any Person means any corporation or other entity of
which a majority of the voting power of the voting equity securities or voting
interests is owned, directly or indirectly, by such Person, or which is
otherwise controlled by such Person.
"Tender Date" means the date (after the date of this Agreement and
prior to the issuance of the Rights Certificates) on which a tender offer or
exchange offer by any Person (other than the Company, any subsidiary of the
Company or any employee benefit plan sponsored or maintained by the Company or
any of its subsidiaries) is first published or sent or given within the meaning
of Rule 14d-2 of the General Rules and Regulations under the Exchange Act (or
any successor rule thereto), which shall not have been approved prior thereto by
the Board and which would, if successful, result in such Person becoming an
Acquiring Person.
"Triggering Event" means any Section 11(a)(ii) Event or any Section 13
Event.
Section 2. Appointment of Rights Agent. The Company hereby appoints the
Rights Agent to act as agent for the Company and the holders of the Rights (who,
in accordance with Section 3 of this Agreement, shall, prior to the Distribution
Date (or later in certain circumstances), also be the holders of the Common
Stock) in accordance with the terms and conditions of this Agreement, and the
Rights Agent hereby accepts such appointment. The Company may from time to time
appoint such Co-Rights Agents as it may deem necessary or desirable. In the
event the Company appoints one or more Co-Rights Agents, the respective duties
of such Co-Rights Agents shall be as the Company determines.
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Section 3. Issuance of Rights Certificates.
(a) At all times prior to the earlier of (i) the tenth (10th) Business
Day after the Acquisition Date (or such specified or unspecified later date as
may be determined by the Board prior to such tenth (10th) Business Day) and (ii)
the tenth (10th) Business Day after the Tender Date (or such specified or
unspecified later date as may be determined by the Board prior to such tenth
(10th) Business Day) (the earlier of such dates being referred to in this
Agreement as the "Distribution Date"), (x) the Rights will be evidenced (subject
to the provisions of paragraph (b) of this Section 3) by the certificates for
Common Stock registered in the names of the holders of the Common Stock (which
certificates for Common Stock shall be deemed also to be certificates for
Rights) and not by separate certificates and (y) the Rights (and the right to
receive certificates therefor) will be transferable only in connection with the
transfer of the underlying shares of Common Stock. As soon as practicable after
the Distribution Date, the Rights Agent will send, at the expense of the
Company, by first-class, insured, postage prepaid mail, to each record holder of
the Common Stock as of the Close of Business on the Distribution Date, at the
address of such holder shown on the records of the Company, a certificate for
Rights, in substantially the form of Exhibit A hereto (the "Rights
Certificates"), evidencing one Right for each share of Common Stock so held,
subject to adjustment as provided in this Agreement. As of and after the
Distribution Date, the Rights will be evidenced solely by such Rights
Certificates.
In certain circumstances provided in Section 23 of this Agreement,
Rights will be issued in respect of shares of Common Stock which are issued
(whether originally issued or delivered from the Company's treasury) after the
Distribution Date, and as soon as practicable after the issuance thereof, the
Rights Agent will so send Rights Certificates to the record holders of such
shares.
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(b) The Company shall send a copy of a Summary of Rights to Purchase
Common Stock, (the "Summary of Rights"), by first-class, postage prepaid mail,
to each record holder of the Common Stock as of the Close of Business on the
Record Date, at the address of such holder shown on the records of the Company.
With respect to certificates for the Common Stock outstanding as of the Record
Date, at all times from and after the Record Date until the Distribution Date
(or earlier redemption, expiration or termination of the Rights), the Rights are
evidenced by such certificates for Common Stock, with or without a copy of the
Summary of Rights attached thereto, and the registered holders of the Common
Stock also are the registered holders of the associated Rights. Until the
Distribution Date (or earlier redemption, expiration or termination of the
Rights), the surrender for transfer of any of the certificates for Common Stock
outstanding on the Record Date, with or without a copy of the Summary of Rights
attached thereto, also constitutes the transfer of the Rights associated with
the Common Stock represented by such certificate.
(c) Certificates for Common Stock issued (whether originally issued or
delivered from the Company's treasury) after the Record Date, but prior to the
earlier of the Distribution Date and the Expiration Date (as defined below),
shall also be deemed to be certificates for Rights and shall have impressed,
printed, stamped, written or otherwise affixed onto them either of the following
legends:
"This certificate also evidences and entitles the holder
hereof to certain Rights as set forth in a Rights Agreement between
Aironet Wireless Communications, Inc. and Harris Trust and Savings Bank
(the "Rights Agent") dated as of ___________, 1999 (the "Rights
Agreement"), the terms of which are hereby incorporated herein by
reference and a copy of which is on file at the principal offices of
Aironet Wireless Communications, Inc. Under certain circumstances, as
set forth in the Rights Agreement, such Rights may be redeemed, may
expire, or may be evidenced by separate certificates and will no longer
be evidenced by this certificate. Aironet Wireless Communications, Inc.
will mail to the holder of this certificate a copy of the Rights
Agreement without charge within five (5) days after receipt of a
written
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request therefor. Under certain circumstances, Rights issued to
Acquiring Persons (as defined in the Rights Agreement) or certain
related persons and any subsequent holder of such Rights may become
null and void with respect to certain rights set forth in Section
11(a)(ii) of the Rights Agreement."
"This certificate also evidences and entitles the holder
hereof to certain Rights as set forth in the Rights Agreement between
Aironet Wireless Communications, Inc. and the Rights Agent, as the same
may be amended, restated, renewed or extended from time to time (the
"Rights Agreement"), the terms of which are hereby incorporated herein
by reference and a copy of which is on file at the principal offices of
Aironet Wireless Communications, Inc. Under certain circumstances, as
set forth in the Rights Agreement, such Rights may be redeemed, may
expire, or may be evidenced by separate certificates and will no longer
be evidenced by this certificate. Aironet Wireless Communications, Inc.
will mail to the holder of this certificate a copy of the Rights
Agreement without charge within five (5) business days after receipt of
a written request therefor. Under certain circumstances, Rights
beneficially owned (as such term is defined in the Rights Agreement) by
an Acquiring Person (as such term is defined in the Rights Agreement)
or certain related persons and any subsequent holder of such Rights,
may become null and void. The Rights shall not be exercisable, and
shall be void so long as held, by a holder in any jurisdiction where
the requisite qualification to the issuance to such holder, or the
exercise by such holder, of the Rights in such jurisdiction shall not
have been obtained or be obtainable."
With respect to such certificates containing either of the foregoing legends,
until the Distribution Date (or earlier redemption, expiration or termination of
the Rights), the Rights associated with the Common Stock represented by such
certificates are evidenced by such certificates alone, and the surrender for
transfer of any of such certificates shall also constitute the transfer of the
Rights associated with the Common Stock represented by such certificates.
Section 4. Form of Rights Certificate.
(a) The Rights Certificates (and the forms of election to purchase
shares and of assignment to be printed on the reverse thereof) shall each be
substantially in the form set forth in Exhibit A hereto and may have such marks
of identification or designation and such legends, summaries or endorsements
printed thereon as the Company may deem appropriate and as are not
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inconsistent with the provisions of this Agreement, or as may be required to
comply with any applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange or over-the-counter
market reporting system on which the Rights may from time to time be listed or
included, or to conform to common usage in the financial community. Subject to
the provisions of Section 11 and Section 23 of this Agreement, the Rights
Certificates, whenever distributed, shall be dated as of the Record Date and on
their face shall entitle the holders thereof to purchase such number of shares
of Common Stock as shall be set forth therein at the price per share set forth
therein (the "Purchase Price"), but the number of such shares and the Purchase
Price shall at all times after the distribution thereof be subject to adjustment
as provided in this Agreement.
(b) Any Rights Certificate issued pursuant to Section 3(a) or Section
23 of this Agreement that represents Rights beneficially owned by an Acquiring
Person or an Associate or Affiliate thereof, any Rights Certificate issued at
any time upon the transfer of any Rights to such an Acquiring Person or any
Associate or Affiliate thereof or to any nominee of such Acquiring Person,
Associate or Affiliate, and any Rights Certificate issued pursuant to Section 6
or Section 11 upon transfer, exchange, replacement or adjustment of any other
Rights Certificate referred to in this sentence, shall contain the following
legend:
The Rights represented by this Rights Certificate were issued
to a Person who was an Acquiring Person or an Affiliate or an Associate
of an Acquiring Person. This Rights Certificate and the Rights
represented hereby may become void to the extent provided by, and under
certain circumstances as specified in, Section 7(e) of the Rights
Agreement.
The provisions of Section 7(e) of this Rights Agreement shall be operative
whether or not the foregoing legend is contained on any such Rights Certificate.
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Section 5. Countersignature and Registration. The Rights Certificates
shall be executed on behalf of the Company by its Chairman of the Board, any
Vice Chairman of the Board, its President or any Vice President and by its
Treasurer, its Secretary or any Assistant Secretary, either manually or by
facsimile signature, and shall have affixed thereto the Company's seal or a
facsimile thereof. The Rights Certificates shall be countersigned by the Rights
Agent, either manually or by facsimile signature, and shall not be valid for any
purpose unless so countersigned. In case any officer of the Company who shall
have signed any of the Rights Certificates shall cease to be such officer of the
Company before countersignature by the Rights Agent and issuance and delivery by
the Company, such Rights Certificates, nevertheless, may be countersigned by the
Rights Agent and issued and delivered by the Company with the same force and
effect as though the person who signed such Rights Certificates had not ceased
to be such officer of the Company; and any Rights Certificates may be signed on
behalf of the Company by any person who, at the actual date of execution of such
Rights Certificates, shall be a proper officer of the Company to sign such
Rights Certificates, although at the date of execution of this Agreement any
such person was not such an officer.
Following the Distribution Date, the Rights Agent will keep, or cause
to be kept, at its offices in Cleveland, Ohio, books for registration and
transfer of the Rights Certificates issued under this Agreement. Such books
shall show the names and addresses of the respective holders of the Rights
Certificates, the number of Rights evidenced on its face by each of the Rights
Certificates and the date of each of the Rights Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen Rights Certificates. Subject
to the provisions of Section 4(b), Section 7(e) and Section 15 of this
Agreement, at any time after the Close of Business on the
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Distribution Date, and on or prior to the Close of Business on the Expiration
Date, any Rights Certificate or Rights Certificates may be transferred, split
up, combined or exchanged for another Rights Certificate or Rights Certificates,
entitling the registered holder to purchase a like number of shares of Common
Stock (or, after a Triggering Event, other securities, cash or other assets, as
the case may be) as the Rights Certificate or Rights Certificates surrendered
then entitled such holder to purchase. Any registered holder desiring to
transfer, split up, combine or exchange any Rights Certificate or Rights
Certificates must make such request in writing delivered to the Rights Agent and
must surrender the Rights Certificate or Rights Certificates to be transferred,
split up, combined or exchanged at the principal office of the Rights Agent.
Thereupon, the Rights Agent shall countersign and deliver to the Person entitled
thereto a Rights Certificate or Rights Certificates, as the case may be, as so
requested. The Company may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any transfer,
split up, combination or exchange of Rights Certificates.
Upon receipt by the Company and the Rights Agent of evidence reasonably
satisfactory to them of the loss, theft, destruction or mutilation of a valid
Rights Certificate and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to them, and upon reimbursement to the Company
and the Rights Agent of all reasonable expenses incidental thereto, and upon
surrender to the Rights Agent and cancellation of the Rights Certificate if
mutilated, the Company will execute and deliver a new Rights Certificate of like
tenor to the Rights Agent for countersignature and delivery to the registered
owner in lieu of the Rights Certificate so lost, stolen, destroyed or mutilated.
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Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights.
(a) The registered holder of any Rights Certificate may exercise the
Rights evidenced thereby (except as otherwise provided in this Agreement,
including, without limitation the restrictions on exercisability set forth in
Section 7(e), Section 11(a)(ii) and Section 24(a)) in whole or in part at any
time after the Distribution Date upon presentation of the Rights Certificate,
with the appropriate form of election to purchase on the reverse side thereof
duly executed, to the Rights Agent at the principal office of the Rights Agent,
together with payment of the Purchase Price for each share of Common Stock (or,
following a Triggering Event, other securities, cash or other assets, as the
case may be) as to which such Rights are exercisable, at or prior to the earlier
of (i) the later of (A) ___________, 2009 and (B) the date two (2) years after
any Distribution Date occurring prior to ____________, 2009 (the later of such
dates described in clauses (i)(A) and (i)(B) above in this Section 7(a) being
referred to in this Agreement as the "Final Expiration Date") and (ii) the date
on which the Rights are redeemed as provided in Section 24 hereof (the earlier
of such dates described in clauses (i) and (ii) above in this Section 7(a) being
referred to in this Agreement as the "Expiration Date"). Notwithstanding any
other provision of this Agreement, any Person who prior to the Distribution Date
becomes a record holder of shares of Common Stock may exercise all of the rights
of a registered holder of a Rights Certificate with respect to the Rights
associated with such shares of Common Stock in accordance with and subject to
the provisions of this Agreement, including the provisions of Section 7(e)
hereof, as of the date such Person becomes a record holder of shares of Common
Stock, regardless of whether the legends provided for in Section 3(c) of this
Agreement are reflected on the certificate evidencing such Common Stock.
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(b) The Purchase Price for each share of Common Stock pursuant to the
exercise of a Right shall initially be One Hundred Twenty-Five Dollars
($125.00), shall be subject to adjustment from time to time as provided in
Sections 11 and 13 of this Agreement and shall be payable in lawful money of the
United States of America in accordance with paragraph (c) below.
(c) Upon receipt of a Rights Certificate representing exercisable
Rights with the appropriate form of election to purchase duly executed,
accompanied by payment of the Purchase Price for the shares to be purchased and
an amount equal to any applicable transfer tax (as determined by the Rights
Agent) in cash, or by certified check or bank draft payable to the order of the
Company, the Rights Agent shall, subject to Section 7(f) and Section 21(k),
thereupon (i) promptly requisition from any transfer agent of the shares of
Common Stock (or make available, if the Rights Agent is the transfer agent)
certificates for the number of shares of Common Stock to be purchased, and the
Company hereby irrevocably authorizes its transfer agent to comply with all such
requests, (ii) when appropriate, requisition from the Company the amount of
cash, if any, to be paid in lieu of issuance of fractional shares in accordance
with Section 15, (iii) promptly after receipt of such certificates, cause the
same to be delivered to or upon the order of the registered holder of such
Rights Certificate, registered in such name or names as may be designated by
such holder and (iv) when appropriate, after receipt, promptly deliver such cash
to or upon the order of the registered holder of such Rights Certificate. In
addition, in the case of an exercise of the rights of a holder pursuant to
Section 11(a)(ii), the Rights Agent shall return such Rights Certificate to the
registered holder thereof after imprinting, stamping or otherwise indicating
thereon that the Rights represented by such Rights Certificate no longer include
the rights provided by Section 11(a)(ii) of the Rights Agreement, and if less
than all the Rights represented by such Rights Certificate were so exercised,
the Rights
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Agent shall indicate that rights under Section 11(a)(ii) continue to the extent
the Rights were not previously exercised pursuant thereto.
(d) In case the registered holder of any Rights Certificate shall
exercise (except pursuant to Section 11(a)(ii)) less than all the Rights
evidenced thereby, a new Rights Certificate evidencing Rights equivalent to the
Rights remaining unexercised shall be issued by the Rights Agent and delivered
to the registered holder of such Rights Certificate or to his duly authorized
assigns, subject to the provisions of Section 15 of this Agreement.
(e) Notwithstanding anything in this Agreement to the contrary, from
and after the occurrence of a Section 11(a)(ii) Event, any Rights beneficially
owned by (i) an Acquiring Person or an Associate or Affiliate of an Acquiring
Person, (ii) a transferee of such Acquiring Person (or of any such Associate or
Affiliate) who becomes such a transferee after such Acquiring Person becomes
such or (iii) a transferee of such Acquiring Person (or of any such Associate or
Affiliate) who becomes such a transferee prior to or concurrently with such
Acquiring Person becoming such and receives such Rights pursuant to either (A) a
transfer (whether or not for consideration) from such Acquiring Person (or any
such Associate or Affiliate) to holders of equity interests in such Acquiring
Person (or such Associate or Affiliate) or to any Person with whom such
Acquiring Person (or any such Associate or Affiliate) has any continuing
agreement, arrangement or understanding regarding the transferred Rights or (B)
a transfer which the Board determines is part of a plan, arrangement or
understanding which has as a primary purpose or effect the avoidance of this
Section 7(e), shall become null and void without any further action, and no
holder of such Rights shall have any rights whatsoever with respect to such
Rights, whether under any provision of this Agreement or otherwise. The Company
shall use all reasonable efforts to ensure that the provisions of this Section
7(e) and
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Section 4(b) hereof are complied with, but shall have no liability to any holder
of Rights Certificates or any other Person as a result of its failure to make
any determinations with respect to an Acquiring Person or its Affiliates,
Associates or transferees under this Agreement.
(f) Notwithstanding anything in this Agreement to the contrary, neither
the Rights Agent nor the Company shall be obligated to undertake any action with
respect to a registered holder upon the occurrence of any purported exercise as
set forth in this Section 7 unless the certificate contained in the appropriate
form of election to purchase set forth on the reverse side of the Rights
Certificate surrendered for such exercise shall have been completed and signed
by the registered holder thereof and the Company shall have been provided with
such additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as the Company shall
reasonably request.
Section 8. Cancellation and Destruction of Rights Certificates. All
Rights Certificates surrendered for the purpose of exercise, transfer, split up,
combination or exchange shall, if surrendered to the Company or any of its
agents, be delivered to the Rights Agent for cancellation or in canceled form,
or if surrendered to the Rights Agent, shall be canceled by it, and no Rights
Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Rights Agreement. The Company shall deliver to the
Rights Agent for cancellation and retirement, and the Rights Agent shall so
cancel and retire, any other Rights Certificate purchased or acquired by the
Company otherwise than upon the exercise thereof. The Rights Agent shall deliver
all canceled Rights Certificates to the Company or shall, at the written request
of the Company, destroy such canceled Rights Certificates, and in such case
shall deliver a certificate of destruction thereof to the Company.
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Section 9. Reservation and Availability of Common Stock. The Company
covenants and agrees that it will cause to be reserved and kept available out of
its authorized and unissued shares of Common Stock, or any authorized and issued
shares of Common Stock held in its treasury, the number of shares of Common
Stock that will be sufficient to permit the exercise in full of all outstanding
Rights; provided, however, that the Company need not so reserve and keep
available shares of Common Stock which may be required to be issued upon
exercise of the Rights in accordance with Section 11(a)(ii) until the occurrence
of a Section 11(a)(ii) Event; and provided, further, that if pursuant to Section
11(a)(iii), the Company makes provision to substitute alternative consideration
for some or all of the shares of Common Stock which may be required to be issued
upon exercise of the Rights, the Company shall be required to reserve and keep
available only the number of shares of Common Stock, if any, that may then be
required to be issued upon exercise of the Rights.
So long as the shares of Common Stock issuable upon the exercise of the
Rights may be listed on any national securities exchange or included on any
over-the-counter market reporting system, the Company shall use its best efforts
to cause, from and after such time as the Rights become exercisable, all shares
reserved for such issuance to be listed on such exchange or included on such
reporting system upon official notice of issuance upon such exercise.
The Company covenants and agrees that it will take all such action as
may be necessary to ensure that all shares of Common Stock (and, following the
occurrence of a Triggering Event, any other equity securities) delivered upon
the exercise of Rights shall, at the time of delivery of the certificates for
such shares (or such other equity securities), subject to payment of the
Purchase Price, be duly and validly authorized, issued and fully paid and
nonassessable.
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<PAGE> 22
The Company further covenants and agrees that it will pay when due and
payable any and all federal and state transfer taxes and charges which may be
payable in respect of the issuance or delivery of the Rights Certificates or of
any certificates for shares of Common Stock (or other securities, as the case
may be) upon the exercise of Rights. The Company shall not, however, be required
to pay any transfer tax which may be payable in respect of any transfer or
delivery of Rights Certificates to a person other than, or in respect of the
issuance or delivery of the shares of Common Stock (or other securities, as the
case may be) in a name other than that of, the registered holder of the Rights
Certificates evidencing Rights surrendered for exercise or to issue or deliver
any certificates for shares of Common Stock (or other securities, as the case
may be) in a name other than that of the registered holder upon the exercise of
any Rights, until such tax shall have been paid (any such tax being payable by
the holder of such Rights Certificate at the time of surrender) or until it has
been established to the Company's satisfaction that no such tax is due.
The Company shall use its best efforts to (i) file, as soon as
practicable following the Distribution Date, a registration statement on an
appropriate form under the Act with respect to any securities purchasable upon
exercise of the Rights, (ii) cause such registration statement to become
effective as soon as practicable after such filing and (iii) cause such
registration statement to remain effective (with a prospectus at all times
meeting the requirements of the Act) until the earlier of (A) the date as of
which the Rights are no longer exercisable for such securities and (B) the
Expiration Date. The Company shall also use its best efforts to qualify or
register the securities purchasable upon exercise of the Rights as may be
necessary or appropriate under the blue sky laws of the various states. The
Company may temporarily suspend, for a period of time not to exceed ninety (90)
days after the filing of a registration statement pursuant to clause (i) of the
first sentence of this paragraph,
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<PAGE> 23
the exercisability of the Rights in order to prepare and file such registration
statement and permit it to become effective. In the event of any such
suspension, the Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended and shall issue a
public announcement at such time as the suspension is no longer in effect. In
addition, if the Company shall determine that a registration statement is
required in other circumstances or for additional or different securities
following the Distribution Date, the Company may similarly temporarily suspend
the exercisability of the Rights until such time as that registration statement
has been declared effective. Notwithstanding any provision of this Agreement to
the contrary, the Rights shall not be exercisable in any jurisdiction if the
requisite qualification in such jurisdiction shall not have been obtained, the
exercise thereof shall not otherwise be permitted under applicable law or a
registration statement shall not have been declared effective.
Section 10. Common Stock Record Date. Each Person in whose name any
certificate for shares of Common Stock (or other securities, as the case may be)
is issued upon the exercise of Rights shall for all purposes be deemed to have
become the holder of record of the shares of Common Stock (or other securities,
as the case may be) represented thereby on, and such certificate shall be dated,
the date upon which the Rights Certificate evidencing such Rights was duly
presented and payment of the Purchase Price (and any applicable transfer taxes)
was made; provided, however, that if the date of such presentation and payment
is a date upon which the transfer books for the Common Stock (or other
securities, as the case may be) of the Company are closed, such Person shall be
deemed to have become the record holder of such shares (or other securities, as
the case may be) on, and such certificate shall be dated, the next succeeding
Business Day on which such transfer books of the Company are open. Prior to the
exercise of the Rights evidenced thereby, the holder of a
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<PAGE> 24
Rights Certificate shall not be entitled to any rights of a stockholder of the
Company with respect to the shares (or other securities, as the case may be) for
which the Rights shall be exercisable, including without limitation, where
applicable, the right to vote, to receive dividends or other distributions or to
exercise any preemptive rights and shall not be entitled to receive any notice
of any proceedings of the Company, except as provided in this Agreement.
Section 11. Adjustment of Purchase Price, Number and Kind of Shares or
Number of Rights. The Purchase Price, the number and kind of shares covered by
each Right and the number of Rights outstanding are subject to adjustment from
time to time as provided in this Section 11.
(a) (i) In the event the Company shall at any time after the date of
this Agreement (A) declare a dividend on the Common Stock payable in shares of
Common Stock, (B) subdivide or split the outstanding Common Stock, (C) combine
or consolidate its outstanding Common Stock into a smaller number of shares or
(D) issue any shares of its capital stock in a reclassification of all of the
Common Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or surviving
corporation), except as otherwise provided in this Section 11(a) and in Section
7(e), the Purchase Price in effect at the time of the record date for such
dividend or of the effective date of such subdivision, split, combination,
consolidation or reclassification, and the number and kind of shares of capital
stock issuable on such date, shall be proportionately adjusted so that the
holder of any Right exercised after such time shall be entitled to receive, upon
the payment of the Purchase Price then in effect, the aggregate number and kind
of shares of capital stock which, if such Right had been exercised immediately
prior to such date and at a time when the Common Stock transfer books of the
Company were open, such holder would have owned upon such exercise and been
entitled to receive by virtue of such dividend, subdivision, split,
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<PAGE> 25
combination, consolidation or reclassification, provided, however, that if the
record date for any such dividend, subdivision, combination or reclassification
shall occur prior to the Distribution Date, the Company shall make an
appropriate adjustment only to the Purchase Price (taking into account any
additional Rights which may be issued as a result of such dividend, subdivision,
combination or reclassification), in lieu of also adjusting (as described above)
the number of Common Shares (or other capital shares, as the case may be)
issuable upon exercise of the Rights. If an event occurs which would require an
adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment
provided for in this Section 11(a)(i) shall be in addition to, and shall be made
prior to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In the event (a "Section 11(a)(ii) Event") that, at any
time after the date of this Agreement, any Person, alone or together with all
Affiliates and Associates of such Person, shall become the Beneficial Owner of
fifteen percent (15%) or more of the shares of Common Stock then outstanding or
a Record Date Owner is no longer an Exempt Person, then, promptly following the
occurrence of such Section 11(a)(ii) Event, proper provision shall be made so
that each holder of a Right, except as provided below and in Section 7(e) of
this Agreement, shall thereafter have the right to receive, upon exercise
thereof at the then current Purchase Price in accordance with the terms of this
Agreement, such number of shares of Common Stock of the Company as shall equal
the result obtained by dividing (x) the product obtained by multiplying (1) the
then current Purchase Price by (2) the number of shares of Common Stock for
which a Right is then exercisable by (y) fifty percent (50%) of the current
market price (as defined below) per share of the Common Stock (determined
pursuant to Section 11(d)) on the date of the occurrence of such 11(a)(ii) Event
(such number of shares being referred to as the "Adjustment Shares").
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<PAGE> 26
(iii) In lieu of issuing shares of Common Stock in accordance
with Section 11(a)(ii), the Company, acting by resolution of the Board, may, and
in the event that the number of shares of Common Stock which are authorized by
the Company's Amended and Restated Certificate of Incorporation but not
outstanding or reserved for issuance for purposes other than upon exercise of
the Rights is not sufficient to permit the exercise in full of the Rights in
accordance with Section 11(a)(ii), the Company, acting by resolution of the
Board, shall: (A) determine the excess of (1) the value of the Adjustment Shares
issuable upon the exercise of a Right (the "Current Value") over (2) the
Purchase Price attributable to each Right (such excess being referred to as the
"Spread") and (B) with respect to all or a portion of each Right (subject to
Section 7(e) hereof), make adequate provision to substitute for the Adjustment
Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction
in the Purchase Price, (3) equity securities of the Company other than Common
Stock (including, without limitation, shares, or units of shares, of preferred
stock which the Board has determined to have the same value as shares of Common
Stock (such securities being referred to as "Common Stock Equivalents")), (4)
debt securities of the Company, (5) other assets or (6) any combination of the
foregoing which, when added to any shares of Common Stock issued upon such
exercise, has an aggregate value equal to the Current Value, where such
aggregate value has been determined by the Board based upon the advice of a
nationally recognized investment banking firm selected by the Board which has
theretofore performed no services for the Company or any of its subsidiaries in
the immediately preceding five (5) years; provided, however, if the Company
shall not have made adequate provision to deliver value pursuant to clause (B)
above within thirty (30) Business Days following the later of (x) the occurrence
of a Section 11(a)(ii) Event and (y) the date on which the Company's right of
redemption pursuant to Section 24(a) expires (the later of (x)
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<PAGE> 27
and (y) being referred to herein as the "Section 11(a)(ii) Trigger Date"), then
the Company shall be obligated to deliver, upon the surrender for exercise of a
Right and without requiring payment of the Purchase Price, shares of Common
Stock (to the extent available) and then, if necessary, cash, which shares
and/or cash have an aggregate value equal to the Spread. If the Board shall
determine in good faith that it is likely that sufficient additional shares of
Common Stock could be authorized for issuance upon exercise in full of the
Rights, the period of thirty (30) Business Days set forth above may be extended
(such period, as it may be extended, the "Substitution Period") to the extent
necessary, but not more than ninety (90) Business Days after the Section
11(a)(ii) Trigger Date, in order that the Company may seek stockholder approval
for the authorization of such additional shares. To the extent that the Company
determines that some action need be taken pursuant to the first and/or second
sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to
Section 7(e) hereof, that such action shall apply uniformly to all outstanding
Rights and (y) may suspend the exercisability of the Rights until the expiration
of the Substitution Period in order to seek any authorization of additional
shares and/or to decide the appropriate form of distribution to be made pursuant
to such first sentence and to determine the value thereof. In the event of any
such suspension, the Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended and a public
announcement at such time as the suspension is no longer in effect. For purposes
of this Section 11(a)(iii), the value of the Common Stock shall be the current
market price per share of the Common Stock on the Section 11(a)(ii) Trigger Date
and the value of any "Common Stock Equivalent" shall be deemed to have the same
value as the Common Stock of the Company on such date.
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<PAGE> 28
(b) If the Company shall fix a record date for the issuance of rights,
options or warrants to all holders of Common Stock entitling them (for a period
expiring within forty-five (45) calendar days after such record date) to
subscribe for or purchase shares of Common Stock or Common Stock Equivalent,
securities convertible into shares of Common Stock or a Common Stock Equivalent,
at a price per share of Common Stock or such Common Stock Equivalent (or having
a conversion price per share, if a security is convertible into shares of Common
Stock or such Common Stock Equivalent) that is less than the current market
price per share of Common Stock or such Common Stock Equivalent on such record
date, the Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect immediately prior to such
date by a fraction, the numerator of which shall be (i) the number of shares of
Common Stock outstanding on such record date plus (ii) the number of additional
shares of Common Stock or such Common Stock Equivalent which the aggregate
offering price of the total number of shares of Common Stock to be offered (or
the average initial conversion price of the convertible securities to be
offered) would purchase at such current market price, and the denominator of
which shall be (i) the number of shares of Common Stock outstanding on such
record date plus (ii) the number of additional shares of Common Stock or such
Common Stock Equivalent to be offered for subscription or purchase (or into
which the convertible securities so to be offered are initially convertible). In
case such subscription price may be paid in a consideration part or all of which
shall be in a form other than cash, the value of such consideration shall be
determined by the Board reasonably and with good faith to the holders of Rights,
whose determination shall be described in a statement filed with the Rights
Agent and shall be binding on the Rights Agent and conclusive for all purposes.
Shares of Common Stock owned by or held for the account of the Company shall not
be deemed outstanding for the purpose of any
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<PAGE> 29
such computation. Such adjustment shall be made successively whenever such a
record date is fixed and, in the event that such rights or warrants are not so
issued, the Purchase Price shall be readjusted to be the Purchase Price which
would then be in effect if such record date had not been fixed.
(c) If the Company shall fix a record date for the making of a
distribution to all holders of Common Stock (including any such distribution
made in connection with a merger in which the Company is the continuing or
surviving corporation) of evidence of indebtedness, cash (other than a regular,
periodic cash dividend at a rate not in excess of one hundred twenty-five
percent (125%) of the rate of the last regular, periodic cash dividend
theretofore paid), assets (other than a dividend payable in Common Stock, but
including any dividend payable in stock other than Common Stock) or subscription
rights or warrants (excluding those referred to in Section 11(b)), the Purchase
Price to be in effect after such record date shall be determined by multiplying
the Purchase Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the current market price) per share of
Common Stock on such record date, less the fair market value (as determined by
the Board reasonably and with good faith to the holders of Rights, whose
determination shall be described in a statement filed with the Rights Agent and
shall be binding on the Rights Agent and conclusive for all purposes) of the
portion of the cash, assets or evidences of indebtedness so to be distributed or
of such subscription rights or warrants distributable in respect of one (1)
share of Common Stock, and the denominator of which shall be the current market
price per share of Common Stock. Such adjustments shall be made successively
whenever such a record date is fixed and, in the event that such distribution is
not so made, the Purchase Price shall be adjusted to be the Purchase Price which
would be in effect if such record date had not been fixed.
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<PAGE> 30
(d) Except as otherwise expressly provided in this Agreement, the
"current market price" per share of Common Stock on any date for the purpose of
any computation under this Agreement shall be deemed to be the average of the
daily closing prices per share of such Common Stock for the thirty (30)
consecutive Trading Days (as such term is defined below) immediately prior to
such date; provided, however, that in the event that current market price per
share of Common Stock is determined during the period following the announcement
by the issuer of such Common Stock of (i) a dividend or distribution on such
Common Stock payable in shares of such Common Stock or securities convertible
into shares of such Common Stock other than the Rights or (ii) any subdivision,
split, combination, consolidation or reclassification of such Common Stock, and
prior to the expiration of thirty (30) Trading Days after the ex-dividend date
for such dividend or distribution, or the record date for such subdivision,
split, combination, consolidation or reclassification, then, and in each such
case, the "current market price" shall be equitably adjusted to take into
account ex-dividend trading or the effects of such subdivision, split,
combination, consolidation or reclassification, as the case may be. The closing
price for each day shall be the last sale price, regular way, or in case no such
sale takes place on such day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on the New York Stock Exchange or, if the shares of such Common Stock
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
shares of such Common Stock are listed or admitted to trading or, if the shares
of such Common Stock are not listed or admitted to trading on any national
securities exchange, the closing sale price or the last quoted price or, if not
so quoted,
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<PAGE> 31
the average of the high bid and low asked prices in the over-the-counter market,
as reported by any market or quotation system of The Nasdaq Stock Market
("Nasdaq") or such other reporting system then in use, or, if on any such date
the shares of such Common Stock are not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a professional
market maker making a market in such Common Stock selected by the Board. If on
any such date no market maker is making a market in such Common Stock, the fair
value of such shares on such date as determined by the Board reasonably and with
good faith to the holders of Rights shall be used and shall be binding on the
Rights Agent. The term "Trading Day" shall mean a day on which the principal
national securities exchange or over-the-counter market reporting system on
which the shares of such Common Stock are listed or admitted to trading or
included is open for or reports the transaction of business or, if the shares of
such Common Stock are not listed or admitted to trading on any national
securities exchange or included on any over-the-counter market reporting system,
a Business Day. If such Common Stock is not publicly held or not so listed or
traded, "current market price" per share shall mean the fair value per share
determined by the Board reasonably and with good faith to the holders of Rights,
whose determination shall be described in a statement filed with the Rights
Agent and shall be binding on the Rights Agent.
(e) Anything in this Agreement to the contrary notwithstanding, no
adjustment in the Purchase Price shall be required unless such adjustment would
require an increase or decrease of at least one percent (1%) in the Purchase
Price; provided, however, that any adjustments which by reason of this Section
11(e) are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this Section 11
shall be made to the nearest cent or to the nearest ten-thousandth (1/10,000th)
of a share of Common Stock, as the case
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may be. Notwithstanding the first sentence of this Section 11(e), any adjustment
required by this Section 11 shall be made no later than the earlier of (i) three
(3) years from the date of the transaction which mandates such adjustment and
(ii) the Expiration Date.
(f) If, as a result of any provision of Section 11(a) or Section 13(a),
the holder of any Right thereafter exercised shall become entitled to receive
any shares of capital stock of the Company other than Common Stock, thereafter
the number of such other shares so receivable upon exercise of any Right and the
Purchase Price thereof shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the shares of Common Stock contained in Sections 11(a), (b), (c),
(e), (g), (h), (i), (j), (k), (l) and (m), inclusive, and the provisions of
Sections 7, 9, 10, 13 and 15 of this Agreement with respect to the Common Stock
shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent to any
adjustment or adjustments made to the Purchase Price under this Agreement shall
evidence the right to purchase, at the Purchase Price as theretofore adjusted,
the number of shares of Common Stock purchasable from time to time under this
Agreement upon exercise of the Rights, all subject to further adjustment as
provided in this Agreement.
(h) Unless the Company shall have exercised its election as provided in
Section 11(i), upon each adjustment of the Purchase Price as a result of the
calculations made in Section 11(b) and Section 11(c), each Right outstanding
immediately prior to the making of such adjustment shall thereafter evidence the
right to purchase, at the adjusted Purchase Price, that number of shares of
Common Stock (calculated to the nearest ten-thousandth (1/10,000th)) obtained by
(i) multiplying (x) the number of shares of Common Stock covered by a Right
immediately prior to such adjustment
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of the Purchase Price by (y) the Purchase Price in effect immediately prior to
such adjustment of the Purchase Price and (ii) dividing the product so obtained
by the Purchase Price in effect immediately after such adjustment of the
Purchase Price.
(i) The Company may elect on or after the date of any adjustment of the
Purchase Price to adjust the number of Rights in lieu of making any adjustment
in the number of shares of Common Stock purchasable upon the exercise of a
Right. Each of the Rights outstanding after any such adjustment in the number of
Rights shall be exercisable for the number of shares of Common Stock for which a
Right was exercisable immediately prior to such adjustment. Each Right held of
record prior to any such adjustment of the number of Rights shall become that
number of Rights (calculated to the nearest ten-thousandth (1/10,000th))
obtained by dividing the Purchase Price in effect immediately prior to such
adjustment of the Purchase Price by the Purchase Price in effect immediately
after such adjustment of the Purchase Price. The Company shall make a public
announcement of its election to adjust the number of Rights, indicating the
record date for the adjustment and, if known at the time, the amount of the
adjustment to be made. Such record date may be the date on which the Purchase
Price is adjusted or any day thereafter, but, if Rights Certificates have been
issued, such record date shall be at least ten (10) Business Days later than the
date of the public announcement. If Rights Certificates have theretofore been
issued, upon each adjustment of the number of Rights pursuant to this Section
11(i), the Company shall, as promptly as practicable, cause to be distributed,
to the holders of record of Rights Certificates on such record date, Rights
Certificates evidencing, subject to Section 15 hereof, the additional Rights to
which such holders shall be entitled as a result of such adjustment, or at the
option of the Company, shall cause to be distributed to such holders of record
in substitution and replacement for the Rights Certificates
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held by such holders prior to the date of such adjustment, and upon surrender
thereof, if required by the Company, new Rights Certificates evidencing all the
Rights to which such holders shall be entitled after such adjustment. Rights
Certificates so to be distributed shall be issued, executed and countersigned in
the manner provided for in this Agreement (and may bear, at the option of the
Company, the Purchase Price as theretofore adjusted) and shall be registered in
the names of the holders of record of Rights Certificates on the record date
specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price or
the number of shares of Common Stock issuable upon the exercise of the Rights,
the Rights Certificates theretofore and thereafter issued may continue to
express the Purchase Price per share and the number of shares which were
expressed in the initial Rights Certificates issued under this Agreement.
(k) Before taking any action that would cause an adjustment reducing
the Purchase Price below the then par value, if any, of the shares of Common
Stock issuable upon exercise of the Rights, the Company shall take any corporate
action which may, in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue fully paid and nonassessable shares of
Common Stock at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that an
adjustment of the Purchase Price be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event the issuing to the holder of any Right exercised after such record date
the shares of Common Stock and other capital stock or securities of the Company,
if any, issuable upon such exercise over and above the shares of Common Stock
and other capital stock or securities of the Company, if any, issuable upon such
exercise on the basis of the Purchase Price in effect prior to such adjustment;
provided, however, that the Company shall deliver to such holder a due bill or
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<PAGE> 35
other appropriate instrument evidencing such holder's right to receive such
additional shares upon the occurrence of the event requiring such adjustment.
(m) Anything to the contrary in this Section 11 notwithstanding, the
Company by action of the Board shall be entitled to make such reductions in the
Purchase Price, in addition to those adjustments expressly required by this
Section 11, as and to the extent that the Board shall determine to be advisable
in order that any (i) consolidation or subdivision of the Common Stock, (ii)
issuance wholly for cash of any shares of Common Stock at less than the current
market price, (iii) issuance wholly for cash of shares of Common Stock or
securities which by their terms are convertible into or exchangeable for shares
of Common Stock, (iv) stock dividends or (v) issuance of rights, options or
warrants referred to above in this Section 11, hereafter made by the Company to
holders of its Common Stock shall not be taxable to such stockholders.
(n) The exercise of Rights under Section 11(a) (ii) shall only result
in the loss of rights under Section 11(a) (ii) to the extent so exercised and
shall not otherwise affect the rights represented by the Rights under this
Rights Agreement, including the rights under Section 13.
Section 12. Certificate of Adjusted Purchase Price or Number of Shares.
Whenever an adjustment is made as provided in Sections 11 and 13 of this
Agreement, the Company shall (a) promptly prepare a certificate setting forth
such adjustment and a brief statement of the facts accounting for such
adjustment, (b) promptly file with the Rights Agent and with each transfer agent
for the Common Stock a copy of such certificate and (c) mail a brief summary
thereof to each holder of a Rights Certificate in accordance with Section 26 of
this Agreement. Notwithstanding the foregoing sentence, the failure of the
Company to prepare such certificate or statement or make such filings or
mailings shall not affect the validity of, or the force or effect of, the
requirement for such
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adjustment. The Rights Agent shall be fully protected in relying on any such
certificate and on any adjustment therein contained, and shall not be obligated
or responsible for calculating any adjustment nor shall it be deemed to have
knowledge of such adjustment unless and until it shall have received such
certificate.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power.
(a) In the event (a "Section 13 Event") that, following the Acquisition
Date, directly or indirectly, (x) the Company shall consolidate or otherwise
combine with, or merge with and into, any other Person (other than a subsidiary
of the Company in one or more transactions each of which complies with Section
14(c)), and the Company shall not be the continuing or surviving corporation of
such consolidation, combination or merger, (y) any Person shall consolidate or
otherwise combine with the Company, or merge with and into the Company and the
Company shall be the continuing or surviving corporation of such consolidation,
combination or merger and, in connection with such consolidation, combination or
merger, all or part of the shares of Common Stock shall be changed into or
exchanged for stock or other securities of any other Person or cash or any other
property, or (z) the Company shall sell, mortgage or otherwise transfer (or one
or more of its subsidiaries shall sell, mortgage or otherwise transfer), in one
or more transactions, assets or earning power aggregating more than fifty
percent (50%) of the assets or earning power of the Company and its subsidiaries
(taken as a whole) to any other Person (other than to subsidiaries of the
Company in one or more transactions each of which complies with Section 14(c)),
provided, however, that this clause (z) of Section 13(a) shall not apply to the
pro rata distribution by the Company of assets (including securities) of the
Company or any of its subsidiaries to all holders of the Company's Common Stock;
then, and in each such case, proper provision shall be made so that (i) each
holder of a Right (except
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as provided in Section 7(e) hereof) shall thereafter have the right to receive,
upon the exercise thereof at the then current Purchase Price in accordance with
the terms of this Agreement, such number of validly authorized and issued, fully
paid, nonassessable and freely tradable shares of Common Stock of the Principal
Party (as defined below), not subject to any liens, encumbrances, rights of
call, rights of first refusal or other adverse claims, as shall be equal to the
result obtained by dividing (A) the product obtained by multiplying (1) the then
current Purchase Price by (2) the number of shares of Common Stock for which a
Right is then exercisable by (B) fifty percent (50%) of the current market price
per share of Common Stock of such Principal Party on the date of consummation of
such Section 13 Event; (ii) such Principal Party shall thereafter be liable for,
and shall assume by virtue of such Section 13 Event, all the obligations and
duties of the Company pursuant to this Agreement; (iii) the term "Company" shall
thereafter be deemed to refer to such Principal Party, it being specifically
intended that the provisions of Section 11 hereof shall apply to such Principal
Party following the first occurrence of a Section 13 Event; and (iv) such
Principal Party shall take such steps (including but not limited to the
reservation of a sufficient number of shares of its Common Stock in accordance
with Section 9 of this Agreement) in connection with such consummation as may be
necessary to assure that the provisions of this Agreement shall thereafter be
applicable, as nearly as reasonably may be, in relation to shares of its Common
Stock thereafter deliverable upon the exercise of the Rights.
(b) "Principal Party" shall mean:
(i) In the case of any transaction described in clause (x) or
(y) of Section 13(a), the Person that is the issuer of any securities into which
shares of Common Stock of the Company are converted, changed or exchanged in
such merger, consolidation or combination or, if there is more than one issuer,
the issuer of the Common Stock having the greatest market value, or if no
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securities are so issued, the Person that is the other party to the merger (and
survives the merger), consolidation or combination (or, if there is more than
one such Person, the Person the Common Stock of which has the greatest value),
or if the other party to the merger does not survive the merger, the Person that
does survive the merger (including the Company, if it survives); and
(ii) In the case of any transaction described in clause (z) of
Section 13(a), the Person that is the party receiving the greatest portion of
the assets or earning power transferred pursuant to such transaction or
transactions; or, if each Person that is a party to such transaction or
transactions receives the same portion of the assets or earning power so
transferred or if the Person receiving the greatest portion of the assets or
earning power cannot be determined, whichever of such Persons is the issuer of
Common Stock having the greatest market value; provided, however, that in any
such case, (A) if the Common Stock of such Person is not at such time, or has
not been continuously over the preceding 12-month period, registered under
Section 12 of the Exchange Act, and such Person is a direct or indirect
subsidiary of another Person, "Principal Party" shall refer to such other
Person; (B) in case such Person is a subsidiary, directly or indirectly, of more
than one Person, the Common Stocks of two or more of which are and have been so
registered, "Principal Party" shall refer to whichever of such Persons is the
issuer of the Common Stock having the greatest aggregate market value; and (C)
in case such Person is owned, directly or indirectly, by a joint venture formed
by two or more Persons that are not owned, directly or indirectly, by the same
Person, the rules set forth in clauses (A) and (B) immediately above shall apply
to each of the chains of ownership having an interest in such joint venture as
if such party were a subsidiary of both or all of such joint venturers, and the
Principal Parties in each such chain shall bear the obligations set forth
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in this Section 13 in the same ratio as their direct or indirect interests in
such Person bear to the total of such interests.
(c) The Company shall not consummate any such Section 13 Event unless
prior thereto the Company and each Principal Party and each other Person who may
become a Principal Party as a result of such Section 13 Event shall have
executed and delivered to the Rights Agent a supplemental agreement confirming
that the terms set forth in paragraphs (a) and (b) of this Section 13 shall
promptly be performed in accordance with their terms and that such Section 13
Event shall not result in a default by the Principal Party under this Agreement
as the same shall have been assumed by the Principal Party pursuant to Section
13(a) and Section 13(b) and further providing that, as soon as practicable after
the date of such Section 13 Event, the Principal Party at its own expense will:
(i) Prepare and file a registration statement on an
appropriate form under the Act with respect to the Rights and the securities
purchasable upon exercise of the Rights and will use its best efforts to cause
such registration statement to become effective as soon as practicable after
such filing and to remain effective (with a prospectus at all times meeting the
requirements of the Act) until the Expiration Date;
(ii) Use its best efforts to qualify or register the Rights
and the securities purchasable upon exercise of the Rights under the blue sky
laws of such jurisdictions as may be necessary or appropriate;
(iii) Use its best efforts to list or obtain quotation of (or
continue the listing or quotation of) the Rights and the securities purchasable
upon exercise of the Rights on a national securities exchange or automated
quotation service;
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(iv) Deliver to holders of the Rights historical financial
statements for the Principal Party and each of its Affiliates which comply in
all material respects with the requirements for registration on Form 10 (or any
successor form) under the Exchange Act; and
(v) Use its best efforts to obtain waivers of any rights of
first refusal or preemptive rights in respect of the shares of Common Stock or
other securities of the Principal Party subject to purchase upon exercise of
outstanding Rights.
(d) In the event that, following the Acquisition Date, directly or
indirectly, any of the transactions described in Section 13(a) shall be
consummated and, as a result of application of the rules set forth in Section
13(b), "Principal Party" shall mean a Person the Common Stock of which (i) is
not at such time, or has not been continuously over the preceding 12-month
period, registered under Section 12 of the Exchange Act or (ii) is not listed on
a national securities exchange or regularly quoted in the over-the-counter
market by one or more members of a national or affiliated securities
association, each holder of a Right shall have the right to receive, upon the
exercise thereof at the then current Purchase Price in accordance with the terms
of this Agreement, cash in an amount equal to the result obtained by multiplying
(A) the product obtained by multiplying (1) the then current Purchase Price by
(2) the number of shares of Common Stock for which a Right is then exercisable
by (B) two (2). In such event, clauses (ii) and (iii) of Section 13(a) shall
continue to apply.
(e) The provisions of this Section 13 shall similarly apply to
successive mergers, consolidations, combinations, sales or other transfers. The
rights of a holder of a Right under this Section 13 shall be in addition to the
rights of such holder to exercise such Right pursuant to, and the
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adjustments required by, Section 11(a)(ii) and shall survive any exercise
thereof under Section 11(a)(ii).
Section 14. Additional Covenants.
(a) Notwithstanding any other provision of this Agreement, except as
permitted by Section 11(a)(iii), no adjustment to the Purchase Price, the number
and kind of shares (or fractions of a share) for which a Right is exercisable or
the number of Rights outstanding or any similar adjustment shall be made or be
effective if such adjustment would have the effect of reducing or limiting the
benefits the holders of the Rights would have had absent such adjustment,
including, without limitation, the benefits under Section 11(a) (ii) and Section
13.
(b) The Company covenants and agrees that it shall not at any time
after the Distribution Date, (i) consolidate or combine with any other Person
(other than a subsidiary of the Company in a transaction which complies with
Section 14(c)), (ii) merge with or into any other Person (other than a
subsidiary of the Company in a transaction which complies with Section 14(c)) or
(iii) sell or otherwise transfer, in one or more transactions, assets or earning
power aggregating more than fifty percent (50%) of the assets or earning power
of the Company and its subsidiaries taken as a whole to any other Person (other
than the Company and/or any of its subsidiaries in one or more transactions each
of which complies with Section 14(c)), if (x) at the time of or after such
consolidation, combination, merger, sale or other transfer, there are any
provisions effecting the Company's Amended and Restated Certificate of
Incorporation or Second Amended and Restated By-Laws or any rights, warrants or
other instruments outstanding or any other action has been taken which would
diminish or otherwise eliminate the benefits intended to be afforded by the
Rights or (y) prior to, simultaneously with or immediately after such
consolidation, combination, merger, sale or
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transfer, the stockholders of the Person who constitutes, or would constitute,
the "Principal Party" for purposes of Section 13(a) hereof shall have received a
distribution of Rights previously owned by such Person or any of its Affiliates
and Associates. The Company shall not consummate any such consolidation, merger,
sale or other transfer unless prior thereto the Company and such other Person
shall have executed and delivered to the Rights Agent a supplemental agreement
evidencing compliance with this Section 14(b).
(c) The Company covenants and agrees that, after the Distribution Date,
it will not, except as otherwise provided herein, take, or permit any of its
subsidiaries to take, any action, if at the time such action is taken it is
reasonably foreseeable that such action will diminish or otherwise eliminate the
benefits intended to be afforded by the Rights.
Section 15. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of Rights or
to distribute Rights Certificates which evidence fractional Rights. If the
Company determines that fractional Rights will not be issued, then, in lieu of
such fractional Rights, there shall be paid to the registered holders of the
Rights Certificates with regard to which such fractional Rights would otherwise
be issuable, an amount in cash equal to the same fraction of the current market
value of a whole Right. For the purposes of this Section 15(a), the current
market value of a whole Right shall be the closing price of the Rights for the
Trading Day immediately prior to the date on which such fractional Rights would
have been otherwise issuable. The closing price of the Rights for any day shall
be the last sale price, regular way, or, in case no such sale takes place on
such day, the average of the closing bid and asked prices, regular way, in
either case as reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading on the New York
Stock Exchange or,
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if the Rights are not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated transaction reporting system
with respect to securities listed on the principal national securities exchange
on which the Rights are listed or admitted to trading, or, if the Rights are not
listed or admitted to trading on any national securities exchange, the closing
sale price or the last quoted price or, if not so quoted, the average of the
high bid and low asked prices in the over-the-counter market, as reported by any
market or quotation system of Nasdaq or such other reporting system then in use,
or, if on any such date the Rights are not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a professional
market maker making a market in the Rights selected by the Board. If on any such
date no such market maker is making a market in the Rights, the fair value of
the rights on such date as determined by the Board reasonably and with good
faith to the holders of Rights shall be used and shall be binding on the Rights
Agent.
(b) The Company shall not be required to issue fractions of shares of
Common Stock upon exercise of the Rights or to distribute certificates which
evidence fractional shares of Common Stock. If the Company determines that
fractional shares of Common Stock will not be issued, then, in lieu of such
fractional shares of Common Stock, the Company shall pay to the registered
holders of Rights Certificates at the time such Rights are exercised as provided
in this Agreement an amount in cash equal to the same fraction of the current
market price of a share of Common Stock. For purposes of this Section 15(b), the
current market price of a share of Common Stock shall be the closing price of a
share of Common Stock for the Trading Day immediately prior to the date of such
exercise.
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(c) By the acceptance of a Right, each holder of a Right expressly
waives his right to receive any fractional Rights or any fractional shares upon
exercise of a Right.
Section 16. Rights of Action. All rights of action in respect of this
Agreement, except the rights of action given to the Rights Agent under Section
19 hereof, are vested in the respective registered holders of the Rights
Certificates (and, prior to the Distribution Date, the registered holders of the
Common Stock). Any registered holder of any Rights Certificate (or, prior to the
Distribution Date, of the Common Stock), without the consent of the Rights Agent
or of the holder of any other Rights Certificate (or, prior to the Distribution
Date, of the Common Stock), may, in his own behalf and for his own benefit,
enforce, and may institute and maintain any suit, action or proceeding against
the Company to enforce, or otherwise act in respect of, such holder's right to
exercise the Rights evidenced by such Rights Certificate in the manner provided
in such Rights Certificate and in this Agreement. Without limiting the foregoing
or any remedies available to the holders of Rights, it is specifically
acknowledged and agreed that the holders of Rights would not have an adequate
remedy at law for any breach of this Agreement and shall be entitled to specific
performance of the obligations under this Agreement and injunctive relief
against actual or threatened violations of the obligations under this Agreement
of any Person subject to this Agreement. Holders of Rights shall be entitled to
recover the reasonable costs and expenses, including attorneys' fees, incurred
by them in any action to enforce the provisions of this Agreement.
Section 17. Agreement of Rights Holders. By accepting a Right, each
holder of a Right consents and agrees with the Company and the Rights Agent and
with every other holder of a Right that:
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(a) Prior to the Distribution Date, the Rights will be transferable
only in connection with the transfer of Common Stock;
(b) After the Distribution Date, the Rights Certificates are
transferable only on the registry books of the Rights Agent if surrendered at
the principal office of the Rights Agent, duly endorsed or accompanied by a
proper instrument of transfer;
(c) The Company and the Rights Agent may deem and treat the person in
whose name a Rights Certificate (or, prior to the Distribution Date, the
associated Common Stock certificate) is registered as the absolute owner thereof
and of the Rights evidenced thereby (notwithstanding any notations of ownership
or writing on the Rights Certificates or the associated Common Stock certificate
made by anyone other than the Company or the Rights Agent) for all purposes
whatsoever, and neither the Company nor the Rights Agent shall be affected by
any notice to the contrary; and
(d) Notwithstanding anything in this Agreement to the contrary, neither
the Company nor the Rights Agent shall have any liability to any holder of a
Right or other Person as a result of its inability to perform any of its
obligations under this Agreement by reason of any preliminary or permanent
injunction or other order, decree or ruling issued by a court of competent
jurisdiction or by a governmental, regulatory or administrative agency or
commission, or any statute, rule, regulation or executive order promulgated or
enacted by any governmental authority, prohibiting or otherwise restraining
performance of such obligation; provided, however, the Company must use its best
efforts to have any such order, decree or ruling lifted or otherwise overturned
as soon as possible.
Section 18. Rights Certificate Holder Not Deemed a Stockholder. No
holder, as such, of any Rights Certificate shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of the shares of Common Stock
or any other securities of the Company which may at any time
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be issuable on the exercise of the Right represented thereby, nor shall anything
contained in this Agreement or in any Rights Certificate be construed to confer
upon the holder of any Rights Certificate, as such, any of the rights of a
stockholder of the Company or any right to vote for the election of directors or
upon any matter submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of meetings or
other actions affecting stockholders (except as provided in Section 25 of this
Agreement), or to receive dividends or subscription rights, or otherwise, until
the Rights evidenced by such Rights Certificate shall have been exercised in
accordance with the provisions thereof.
Section 19. Concerning the Rights Agent. The Company agrees to pay to
the Rights Agent reasonable compensation for all services rendered by it under
this Agreement and, from time to time on demand of the Rights Agent, its
reasonable expenses and counsel fees and disbursements and other disbursements
incurred in the administration and execution of this Agreement and the exercise
and performance of its duties under this Agreement. The Company also agrees to
indemnify the Rights Agent for, and to hold it harmless against, any loss,
liability or expense incurred without gross negligence, bad faith or willful
misconduct on the part of the Rights Agent and for anything done or omitted by
the Rights Agent in connection with the acceptance and administration of this
Agreement, including the costs and expenses of defending against any claim of
liability arising therefrom, directly or indirectly. The costs and expenses of
enforcing this right of indemnification shall also be paid by the Company. The
indemnification provided for hereunder shall survive the expiration of the
Rights and termination of this Agreement.
The Rights Agent may conclusively rely upon and shall be protected and
shall incur no liability for or in respect of any action taken, suffered or
omitted by it in connection with its administration
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of this Agreement in reliance upon any Rights Certificate or certificate for
Common Stock or for other securities of the Company, instrument of assignment or
transfer, power of attorney, endorsement, affidavit, letter, notice, direction,
consent, certificate, statement or other paper or document believed by it to be
genuine and to be signed, executed and, where necessary, verified or
acknowledged by the proper Person or Persons. Notwithstanding anything in this
Agreement to the contrary, in no event shall the Rights Agent be liable for
special, indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Rights Agent has been
advised of the likelihood of such loss or damage and regardless of the form of
the action.
Section 20. Merger or Consolidation or Change of Name of Rights Agent.
Any corporation into which the Rights Agent or any successor Rights Agent may be
merged or with which it may be consolidated or combined, or any corporation
resulting from any merger or consolidation or combination to which the Rights
Agent or any successor Rights Agent shall be a party, or any corporation
succeeding to the shareholder services business of the Rights Agent or any
successor Rights Agent, shall be the successor to the Rights Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties to this Agreement, provided that such corporation
would be eligible for appointment as a successor Rights Agent under the
provisions of Section 22 of this Agreement. In case at the time such successor
Rights Agent shall succeed to the agency created by this Agreement, any of the
Rights Certificates shall have been countersigned but not delivered, any such
successor Rights Agent may adopt the countersignature of the predecessor Rights
Agent and deliver such Rights Certificates so countersigned; and in case at that
time any of the Rights Certificates shall not have been countersigned, any
successor Rights Agent may countersign such Rights Certificates either in the
name of the predecessor or in the name
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of the successor Rights Agent; and, in all such cases, such Rights Certificates
shall have the full force provided in the Rights Certificates and in this
Agreement.
In case at any time the name of the Rights Agent shall be changed and
at such time any of the Rights Certificates shall have been countersigned but
not delivered, the Rights Agent may adopt the countersignature under its prior
name and deliver Rights Certificates so countersigned; and in case at that time
any of the Rights Certificates shall not have been countersigned, the Rights
Agent may countersign such Rights Certificates either in its prior name or in
its changed name; and, in all such cases, such Rights Certificates shall have
the full force provided in the Rights Certificates and in this Agreement.
Section 21. Duties of Rights Agent. The Rights Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions, and no implied duties or obligations shall be read into this
Agreement against the Rights Agent, by all of which the Company and the holders
of Rights Certificates, by their acceptance thereof, shall be bound:
(a) Before the Rights Agent acts or refrains from acting, the Rights
Agent may consult with legal counsel selected by it (who may be legal counsel
for the Company), and the opinion of such counsel shall be full and complete
authorization and protection to the Rights Agent as to any action taken or
omitted by it in good faith and in accordance with such opinion.
(b) Whenever, in the performance of its duties under this Agreement,
the Rights Agent shall deem it necessary or desirable that any fact or matter
(including, without limitation, the identity of any Acquiring Person and the
determination of current market price) be proved or established by the Company
prior to taking or suffering any action under this Agreement, such fact or
matter (unless other evidence in respect thereof be specifically prescribed in
this Agreement) may be deemed to be
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conclusively proved and established by a certificate signed by the President,
any Vice President, the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary of the Company and delivered to the Rights Agent; and such
certificate shall be full authorization to the Rights Agent for any action taken
or suffered in good faith by it under the provisions of this Agreement in
reliance upon such certificate.
(c) The Rights Agent shall be liable under this Agreement only for its
own gross negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the Rights
Certificates (except as to the fact that it has countersigned the Rights
Certificates) or be required to verify the same, but all such statements and
recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in respect
of the validity of this Agreement or the execution and delivery of this
Agreement (except the due execution of this Agreement by the Rights Agent) or in
respect of the validity or execution of any Rights Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement or in any
Rights Certificate; nor shall it be responsible for any adjustment required
under the provisions of Sections 11 or 13 of this Agreement 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 evidenced by Rights Certificates after actual notice
of any such adjustment); nor shall it be responsible for any determination by
the Board of current market value of the Rights or Common Stock pursuant to the
provisions of Section 15 of this Agreement; nor shall it by any act under this
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Agreement be deemed to make any representation or warranty as to the
authorization or reservation of any shares of Common Stock to be issued pursuant
to this Agreement or any Rights Certificate or as to whether any shares of
Common Stock will, when so issued, be validly authorized and issued, fully paid
and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and
deliver, or cause to be performed, executed, acknowledged and delivered, all
such further and other acts, instruments and assurances as may reasonably be
required by the Rights Agent for the carrying out or performing by the Rights
Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions from the Chief Executive Officer, President, any Vice President,
the Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary
of the Company (the "Authorized Officers") with respect to the performance of
its duties under this Agreement and to accept certificates delivered pursuant to
any provision of this Agreement from any of the Authorized Officers and is
authorized to apply to such officers for advice or instructions in connection
with its duties, and it shall not be liable for any action taken or suffered to
be taken by it in good faith in accordance with the instructions of or
certificates delivered by any of the Authorized Officers. Any application by the
Rights Agent for written instructions from the Company may, at the option of the
Rights Agent, set forth in writing any action proposed to be taken or omitted by
the Rights Agent under this Agreement and the date on or after which such
actions shall be taken or such omission shall be effective. The Rights Agent
shall not be liable for any action taken by, or omission of, the Rights Agent in
accordance with a proposal included in any such application on or after the date
specified in such application (which date shall not be less than ten Business
Days after the date any officer of the Company actually receives such
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application, unless any such officer shall have consented in writing to an
earlier date) unless, prior to taking any such action (or the effective date in
the case of an omission), the Rights Agent shall have received written
instructions in response to such application subject to the proposed action or
omission and/or specifying the action to take taken or omitted.
(h) The Rights Agent, and any stockholder, director, officer or
employee of the Rights Agent, may buy, sell or deal in any of the Rights or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were not
the Rights Agent under this Agreement. Nothing in this Agreement shall preclude
the Rights Agent from acting in any other capacity for the Company or for any
other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty under this Agreement either
itself or by or through its attorneys or agents, and the Rights Agent shall not
be answerable or accountable for any act, omission, default, neglect or
misconduct of any such attorneys or agents or for any loss to the Company or to
the holders of the Rights resulting from any such act, omission, default,
neglect or misconduct, provided reasonable care was exercised in the selection
and continued employment thereof.
(j) No provision of this Agreement shall require the Rights Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties under this Agreement or in the exercise of its
rights if there shall be reasonable grounds for believing that repayment of such
funds or adequate indemnification against such risk or liability is not
reasonably assured to it.
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(k) If, with respect to any Rights Certificate surrendered to the
Rights Agent for exercise or transfer, the certificate attached to the form of
assignment or form of election to purchase, as the case may be, has either not
been completed or indicates an affirmative response to clause 1 and/or 2
thereof, the Rights Agent shall not take any further action with respect to such
requested exercise or transfer without first consulting with the Company.
(l) The Rights Agent shall not be required to take notice or be deemed
to have any notice of any fact, event or determination (including, without
limitation, any dates or events defined in this Agreement or the designation of
any Person as an Acquiring Person, Affiliate or Associate) under this Agreement
unless and until the Rights Agent shall be specifically notified in writing by
the Company of such fact, event or determination.
Section 22. Change of Rights Agent. The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this Agreement
upon thirty (30) days' notice in writing mailed to the Company and, at the
expense of the Company, to each transfer agent of the Common Stock by registered
or certified mail and to holders of the Rights Certificates by first-class mail.
The Company may remove the Rights Agent or any successor Rights Agent upon
thirty (30) days' notice in writing, mailed to the Rights Agent or successor
Rights Agent, as the case may be, and to each transfer agent of the Common Stock
by registered or certified mail and to the holders of the Rights Certificates by
first-class mail. If the Rights Agent shall resign or be removed or shall
otherwise become incapable of acting, the Company shall appoint a successor
Rights Agent. If the Company shall fail to make such appointment within a period
of thirty (30) days after giving notice of such removal or after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the holder of a Rights Certificate (who shall,
with such notice,
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submit his Rights Certificate for inspection by the Company), then the
registered holder of any Rights Certificate may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any successor Rights
Agent, whether appointed by the Company or by such a court, shall be a
corporation organized and doing business under the laws of the United States (or
of any state of the United States so long as such corporation is authorized to
do business as a banking institution in such state) in good standing, which is
authorized under such laws to exercise corporate trust powers and is subject to
supervision or examination by federal or state banking authorities and which has
at the time of its appointment as Rights Agent a combined capital and surplus of
at least Fifty Million Dollars ($50,000,000). After appointment, the successor
Rights Agent shall, without further act or deed, be vested with the same powers,
rights, duties and responsibilities as if it had been originally named as Rights
Agent, and the predecessor Rights Agent shall deliver and transfer to the
successor Rights Agent any property at the time held by it under this Agreement
and shall execute and deliver any further assurance, conveyance, act or deed
necessary for such purposes. Not later than the effective date of any such
appointment, the Company shall file a 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 registered holders of the Rights Certificates.
Failure to give any notice provided for in this Section 22 or any defect therein
shall not affect the legality or validity of the resignation or removal of the
Rights Agent or the appointment of the successor Rights Agent, as the case may
be.
Section 23. Issuance of New Rights Certificates. Notwithstanding any of
the provisions of this Agreement or of the Rights Certificates to the contrary,
the Company may, at its option, issue new Rights Certificates evidencing Rights
in such form as may be approved by the Board to reflect
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any adjustment of or change in the Purchase Price per share and the number or
kind or class of shares or other securities or property purchasable under the
Rights Certificates made in accordance with the provisions of this Agreement. In
addition, in connection with the issuance or sale of shares of Common Stock
following the Distribution Date and prior to the redemption or expiration of the
Rights, the Company (a) shall, with respect to shares of Common Stock so issued
or sold pursuant to the exercise of stock options or stock appreciation rights
or under any employee plan or arrangement, or upon the exercise, conversion or
exchange of securities heretofore or hereafter granted, issued or sold by the
Company, and (b) may, in any other case, if deemed necessary or appropriate by
the Board, issue Rights Certificates representing the appropriate number of
Rights in connection with the issuance or sale of such shares of Common Stock;
provided, however, that (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 the Person to whom such Rights Certificate would be issued, and (ii)
no such Rights Certificate shall be issued if, and to the extent that,
appropriate adjustment shall otherwise have been made in lieu of the issuance
thereof.
Section 24. Redemption and Termination.
(a) The Board may, at its option, at any time prior to the earlier of
(x) the Close of Business on the tenth (10th) Business Day following the
Acquisition Date (or such specified or unspecified later date as may be
determined by the Board prior to the expiration of such ten (10) Business Day
period) and (y) the Final Expiration Date, redeem all, but not less than all, of
the then outstanding Rights at a redemption price of One One-Thousandth Dollar
($.001) per Right (payable in cash, shares of Common Stock (based on the current
market price of the Common Stock at the
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time of redemption) or any other form of consideration deemed appropriate by the
Board), as such amount may be appropriately adjusted to reflect any stock split,
stock dividend or similar transaction occurring after the date of this Agreement
(such redemption price being hereinafter referred to as the "Redemption Price").
Notwithstanding anything contained in this Agreement to the contrary, the Rights
shall not be exercisable after the first occurrence of a Triggering Event until
such time as the Company's right of redemption hereunder has expired.
(b) Immediately upon the action of the Board ordering the redemption of
the Rights, evidence of which shall have been filed with the Rights Agent, and
without any further action and without any notice, the right to exercise the
Rights will terminate and the only right thereafter of the holders of Rights
shall be to receive the Redemption Price for each Right so held. Promptly after
the action of the Board ordering the redemption of the Rights, the Company shall
give notice of such redemption to the Rights Agent and the holders of the then
outstanding Rights by mailing such notice to all such holders at each holder's
last address as it appears upon the registry books of the Rights Agent or, prior
to the Distribution Date, on the registry books of the transfer agent for the
Common Stock of the Company. Any notice which is mailed in the manner herein
provided shall be deemed given whether or not the holder receives the notice.
Each such notice of redemption will state the method by which the payment of the
Redemption Price will be made.
Section 25. Notice of Certain Events. In case the Company shall propose
(a) to pay any dividend payable in stock of any class to the holders of Common
Stock or to make any other distribution to the holders of Common Stock (other
than a regular periodic cash dividend at a rate not in excess of one hundred
twenty-five percent (125%) of the rate of the last regular periodic cash
dividend theretofore paid), or (b) to offer to the holders of Common Stock
rights or warrants to
Page 52 of 65
<PAGE> 56
subscribe for or to purchase any additional shares of Common Stock or shares of
stock of any class or any other securities, rights or options, or (c) to effect
any reclassification of its Common Stock (other than a reclassification
involving only the subdivision or split of the outstanding shares of Common
Stock), or (d) to effect any consolidation, combination or merger with or into,
or to effect any sale or other transfer (or to permit one or more of its
subsidiaries to effect any sale or other transfer), in one or more transactions,
of more than fifty percent (50%) of the assets or earning power of the Company
and its subsidiaries, taken as a whole, to any other Person or (e) 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 Rights Certificate, in accordance
with Section 26 of this Agreement, a notice of such proposed action specifying
the record date for the purposes of such stock dividend or distribution of
rights or warrants, or the date on which such reclassification, consolidation,
combination, merger, sale, transfer, liquidation, dissolution or winding up is
to take place and the date of participation therein by the holders of Common
Stock, if any such date is to be fixed, and such notice shall be so given in the
case of any action described in clause (a) or (b) above in this Section 25 at
least ten (10) Business Days prior to the record date for determining the
holders of Common Stock for purposes of such action, and in the case of any
other such action, at least ten (10) days prior to the date of the taking of
such proposed action or the date of participation therein by the holders of
Common Stock, whichever shall be earlier. Failure to give any such required
notice prior to the Distribution Date shall not affect the validity of any such
action.
In the case that any Section 11(a)(ii) Event shall occur, then, in any
such case, the Company shall as soon as practicable thereafter give to each
holder of a Rights Certificate, in accordance with
Page 53 of 65
<PAGE> 57
Section 26 of this Agreement, a notice of the occurrence of such event
specifying the event and the consequences of the event to holders of Rights
under Section 11(a)(ii) of this Agreement.
Section 26. Notices. Except as may be otherwise expressly required by
this Agreement, notices or demands authorized by this Agreement to be given or
made by the Rights Agent or by the holder of any Rights Certificate to or on the
Company shall be sufficiently given or made if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing with the Rights
Agent) as follows:
Aironet Wireless Communications, Inc.
3875 Embassy Parkway
Akron, Ohio 44334-8758
Attention: Treasurer
Subject to the provisions of Section 22 and except as may be otherwise expressly
required by this Agreement, notices or demands authorized by this Agreement to
be given or made by the Company or by the holder of any Rights Certificate to or
on the Rights Agent shall be sufficiently given or made if sent by registered or
certified mail and shall be deemed given upon receipt, addressed (until another
address is filed in writing with the Company) as follows:
Harris Trust and Savings Bank
311 West Monroe Street, 14th Floor
Chicago, Illinois 60606
Attn: Shareholder Services
Notices or demand authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Rights Certificate shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the registry
books of the Company.
Page 54 of 65
<PAGE> 58
Section 27. Supplements and Amendments. The Company may from time to
time supplement or amend this Agreement without the approval of any holders of
Rights Certificates (and, prior to the Distribution Date, the registered holders
of the Common Stock) in order to cure any ambiguity, to correct or supplement
any provision contained in this Agreement which may be defective or inconsistent
with any other provisions in this Agreement, or to make any other provisions in
regard to matters or questions arising under this Agreement which the Company
may deem necessary or desirable and, as to any supplement or amendment made
after the Distribution Date, which shall not adversely affect the interests of
the holders of Rights Certificates; provided, however, that the Company shall
not amend or otherwise change the rights, duties and compensation of the Rights
Agent without its prior written consent.
Section 28. Successors. All of the covenants and provisions of this
Agreement by or for the benefit of the Company or the Rights Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Section 29. 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 registered holders of the Rights Certificates (and, prior to the
Distribution Date, the registered holders of the Common Stock) any legal or
equitable right, remedy or claim under this Agreement, but this Agreement shall
be for the sole and exclusive benefit of the Company, the Rights Agent and the
registered holders of the Rights Certificates (and, prior to the Distribution
Date, the registered holders of the Common Stock).
Section 30. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
Page 55 of 65
<PAGE> 59
full force and effect and shall in no way be affected, impaired or invalidated;
provided, however, that notwithstanding anything in this Agreement to the
contrary, if any such term, provision, covenant or restriction is held by such
court or authority to be invalid, void or unenforceable and the Board determines
in its good faith judgment that severing the invalid language from this
Agreement would adversely affect the purpose or effect of this Agreement, the
right of redemption set forth in Section 24 hereof shall be reinstated and shall
not expire until the Close of Business on the tenth (10th) Business Day
following the date of such determination by the Board.
Section 31. Governing Law. This Agreement, each Right and each Rights
Certificate issued under this Agreement shall be deemed to be a contract made
under the laws of the State of Delaware and for all purposes shall be governed
by and construed in accordance with the laws of such State applicable to
contracts to be made and to be performed entirely within such State.
Section 32. Counterparts. This Agreement may be executed in any number
of counterparts; each of such counterparts shall for all purposes be deemed to
be an original; and all of such counterparts shall together constitute but one
and the same instrument.
Section 33. Descriptive Headings. Descriptive headings of the several
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions of this
Agreement.
Page 56 of 65
<PAGE> 60
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
Attest: AIRONET WIRELESS COMMUNICATIONS,
INC.
/s/ Bill J. Brodnick By /s/ Roger J. Murphy, Jr.
- --------------------------- --------------------------------
Name: Bill J. Brodnick Name: Roger J. Murphy, Jr.
---------------------- -----------------------------
Title: VP Finance & Treasurer Title: President & CEO
------------------------ ----------------------------
Attest: HARRIS TRUST AND SAVINGS BANK,
as Rights Agent
/s/ Susan M. Shadel By /s/ Deborah J. Hokinson
- --------------------------- --------------------------------
Name: Susan M. Shadel Name: Deborah J. Hokinson
---------------------- -----------------------------
Title: Vice President Title: Trust Officer
--------------------- ----------------------------
Page 57 of 65
<PAGE> 61
EXHIBIT A
[FORM OF RIGHTS CERTIFICATE]
Certificate No. R- Common Stock Purchase Rights
------------- ------
NOT EXERCISABLE AFTER THE LATER OF ___________, 2009 AND THE DATE TWO
YEARS AFTER ANY DISTRIBUTION DATE OCCURRING PRIOR TO ____________,
2009, OR EARLIER IF NOTICE OF REDEMPTION IS GIVEN. THE COMMON STOCK
PURCHASE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE
COMPANY, AT $.001 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. THE RIGHTS SHALL NOT BE EXERCISABLE, AND SHALL BE VOID SO
LONG AS HELD, BY A HOLDER IN ANY JURISDICTION WHERE THE REQUISITE
QUALIFICATION FOR THE ISSUANCE TO SUCH HOLDER, OR THE EXERCISE BY SUCH
HOLDER, OF THE RIGHTS IN SUCH JURISDICTION SHALL NOT HAVE BEEN OBTAINED
OR BE OBTAINABLE. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY
OWNED BY AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS
AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND
VOID. [THE RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE WERE ISSUED TO
A PERSON WHO WAS AN ACQUIRING PERSON OR AN AFFILIATE OR AN ASSOCIATE OF
AN ACQUIRING PERSON. THIS RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED
HEREBY MAY BECOME VOID TO THE EXTENT PROVIDED BY, AND UNDER CERTAIN
CIRCUMSTANCES SPECIFIED IN, SECTION 7(e) OF THE RIGHTS AGREEMENT.]*
- --------
* The portion of the legend in brackets shall be inserted only if applicable.
Page 58 of 65
<PAGE> 62
RIGHTS CERTIFICATE
AIRONET WIRELESS COMMUNICATIONS, INC.
This certifies that ______________________________________, or
registered assigns, is the registered owner of the number of Common Stock
Purchase Rights (the "Rights") set forth above, each of which entitles the owner
thereof, subject to the terms, provisions and conditions of the Rights
Agreement, dated as of ____________, 1999, (as amended, restated, renewed or
extended from time to time thereafter, the "Rights Agreement"), between Aironet
Wireless Communications, Inc., a Delaware corporation (the "Company"), and
Harris Trust and Savings Bank, an Illinois banking corporation (the "Rights
Agent") to purchase from the Company at any time after the Distribution Date (as
such term is defined in the Rights Agreement) and prior to 5:00 P.M. (Cleveland,
Ohio time) on ____________,2009 at the principal office of the Rights Agent in
Cleveland, Ohio, or its successors as Rights Agent, one fully paid,
nonassessable share of the Common Stock, par value $.01 per share, of the
Company (the "Common Stock"), at a purchase price of $125.00 per share (the
"Purchase Price"), upon presentation and surrender of this Rights Certificate
with the appropriate Form of Election to Purchase duly executed. The number of
Rights evidenced by this Rights Certificate (and the number of shares which may
be purchased upon exercise thereof) set forth above, and the Purchase Price per
share set forth above, are the number and Purchase Price as of
____________,1999, based on the Common Stock as constituted at such date. The
Company reserves the right to require prior to the occurrence of a Triggering
Event (as such term is defined in the Rights Agreement) that a number of Rights
be exercised so that only whole shares of Common Stock will be issued.
Page 59 of 65
<PAGE> 63
As provided in the Rights Agreement, the Purchase Price and the number
of shares of Common Stock which may be purchased upon the exercise of the Rights
evidenced by this Rights Certificate are subject to modification and adjustment
upon the happening of certain events.
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. Reference
is also made to the Rights Agreement for definitions of capitalized terms used
but not defined herein. Copies of the Rights Agreement are on file at the
principal office of the Company and are also available upon written request to
the Company.
This Rights Certificate, either alone or together with other Rights
Certificates, upon surrender at the principal office of the Rights Agent may be
exchanged for another Rights Certificate or Rights Certificates of like tenor
and date evidencing Rights entitling the holder to purchase a like aggregate
number of shares of Common Stock as the Rights evidenced by the Rights
Certificate or Rights Certificates surrendered shall have entitled such holder
to purchase. If this Rights Certificate shall be exercised (other than pursuant
to Section 11(a)(ii) of the Rights Agreement) in part, the holder shall be
entitled to receive upon surrender hereof another Rights Certificate or Rights
Certificates for the number of whole Rights not exercised. If this Rights
Certificate shall be exercised in whole or in part pursuant to Section 11(a)(ii)
of the Rights Agreement, the holder shall be entitled to receive this Rights
Certificate duly marked to indicate that such exercise has occurred as set forth
in the Rights Agreement.
Page 60 of 65
<PAGE> 64
Subject to the provisions of the Rights Agreement, the Rights evidenced
by this Certificate may be redeemed by the Company at its option at a redemption
price of $.001 per Right.
The Company is not required to issue fractional shares of Common Stock
upon the exercise of any Right or Rights evidenced hereby, but in lieu thereof a
cash payment shall be made as provided in the Rights Agreement.
No holder of this Rights Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of shares of Common
Stock or of any other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a 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 Right or Rights evidenced by this Rights
Certificate shall have been exercised as provided in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
Page 61 of 65
<PAGE> 65
WITNESS the facsimile signature of the proper officers of the Company
and its corporate seal. Dated as of ____________.
[Corporate Seal] AIRONET WIRELESS COMMUNICATIONS,
INC.
By
----------------------------------
Name:
-------------------------------
Title:
-----------------------------
By
----------------------------------
Name:
-------------------------------
Title:
-----------------------------
Countersigned:
HARRIS TRUST AND SAVINGS BANK,
as Rights Agent
By:
---------------------------------
Authorized Signature
Page 62 of 65
<PAGE> 66
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED ______________________________________________ does
hereby sell, assign and transfer 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 ___________________________
Attorney, to transfer the within Rights Certificate on the books of the
within-named Company, with full power of substitution.
Dated:__________________, 19__
-----------------------------------
Signature
Signature Guaranteed:
Page 63 of 65
<PAGE> 67
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) This Rights Certificate [ ] is [ ] is not being exercised, sold,
assigned or transferred by or on behalf of a Person who is or was an Acquiring
Person or an Affiliate or Associate of any such Acquiring Person (as such terms
are defined pursuant to the Rights Agreement); and
(2) After due inquiry and to the best knowledge of the undersigned, the
undersigned [ ] did [ ] did not acquire the rights evidenced by this Rights
Certificate from any Person who is, was or subsequently became an Acquiring
Person or an Affiliate or Associate of an Acquiring Person.
Dated:________________, 19__
-----------------------------------
Signature
NOTICE
The signature to the foregoing Assignment must correspond to the name
as written upon the face of this Rights Certificate in every particular, without
alteration or enlargement or any change whatsoever.
Page 64 of 65
<PAGE> 68
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires
to exercise the Rights represented
by the Rights Certificate.)
To: AIRONET WIRELESS COMMUNICATIONS, INC.
The undersigned hereby irrevocably elects to exercise
__________________ Rights represented by this Rights Certificate to purchase the
shares of Common Stock issuable upon the exercise of the Rights and requests
that certificates for such shares be issued in the name of:
- --------------------------------------------------------------------------------
(Please print name and address)
- --------------------------------------------------------------------------------
Please insert Social Security or tax 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:
- --------------------------------------------------------------------------------
(Please print name and address)
- --------------------------------------------------------------------------------
Please insert Social Security or tax identification number:
--------------------
Dated:_________________, 19__ ---------------------------------
Signature
Signature Guaranteed:
Page 65 of 65
<PAGE> 1
EXHIBIT 5
GOODMAN WEISS MILLER LLP
100 ERIEVIEW PLAZA. 27TH FLOOR
CLEVELAND, OHIO 44114-1824
TELEPHONE: (216)696-3366
FAX: (216)383-5835
September 10, 1999
Aironet Wireless Communications, Inc.
3875 Embassy Parkway
Akron, OH 44333
Re: Registration Statement on Form S-8 for Common Stock (the "Shares")
Issuable Pursuant to the 1999 Employee Stock Purchase Plan, the 1999
Omnibus Stock Incentive Plan and the 1999 Stock Option Plan for
Non-Employee Directors
Ladies and Gentlemen:
This opinion is furnished to you in connection with a Registration
Statement on Form S-8 (the "Registration Statement") by Aironet Wireless
Communications, Inc. a Delaware corporation (the "Company"), to be filed with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Act"), for the registration of: (i) 500,000 shares of Common Stock
of the Company, par value $.01 per share, issuable pursuant to the Company's
1999 Employee Stock Purchase Plan; (ii) 1,765,817 shares of Common Stock of the
Company, par value $.01 per share, issuable pursuant to the Company's 1999
Omnibus Stock Incentive Plan; and (iii) 250,000 shares of Common Stock of the
Company, par value $.01 per share, issuable pursuant to the Company's 1999 Stock
Option Plan for Non-Employee Directors (collectively, the "Plans").
We, in our capacity as its general counsel, have assisted the Company
in its preparation of the Registration Statement. In connection therewith, we
have only examined and relied upon (i) the Plans; (ii) the Registration
Statement; and (iii) the Amended and Restated Certificate of Incorporation and
Second Amended and Restated Bylaws of the Company (together, the "Charter
Documents") and the other exhibits to the Registration Statement.
In our examination of the foregoing documents, we have assumed the
genuiness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as copies, the authenticity of the originals of such latter documents and the
legal competence of all individuals who signed such documents.
<PAGE> 2
GOODMAN WEISS MILLER LLP
Aironet Wireless Communications, Inc.
September 10, 1999
Page 2
Members of our firm are admitted to the Bar of the State of Ohio, and
we express no opinion regarding the laws of any jurisdiction other than the
State of Ohio , the Delaware General Corporation Law and the federal laws of the
United States of America.
Based upon and subject to the foregoing, and further (i) subject to (a)
the effectiveness of the Registration Statement; (b) compliance with the
document delivery and updating requirements of Part I of Form S-8 and of Rule
428(b), both of which are promulgated under the Act; (c) compliance with
applicable state securities laws; and (d) payment of the purchase price as is
required to be paid with respect to the Shares issuable pursuant to the Plans
and (ii) provided that the Charter Documents and all applicable laws, rules and
regulations then in effect are the same as the Charter Documents, laws, rules
and regulations as are in effect as of the date hereof, we are of the opinion
that any Shares hereafter awarded under and in accordance with the Plans will be
validly issued, fully paid and non-assessable under the Delaware General
Corporation Law under which the Company is incorporated.
By your acceptance of this opinion, you acknowledge that this opinion
is to and shall be used only in connection with the offer and sale of the shares
under the Plans while the Registration Statement is in effect.
We are opining only as to the matters expressly set forth herein, and
no opinion is rendered or should be inferred as to any other matters. Our
opinion is an expression of professional judgment only and is not a guaranty of
result. This opinion is based upon currently existing statutes, rules,
regulations and judicial decisions, and we do not undertake or acknowledge any
obligation to advise you of any change in any of these sources of law or
subsequent legal or factual developments which might affect our opinion
expressed herein.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement.
Very truly yours,
/s/ Goodman Weiss Miller LLP
GOODMAN WEISS MILLER LLP
<PAGE> 1
[logo] PRICEWATERHOUSECOOPERS Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated May 25, 1999 relating to the
consolidated financial statements and financial statement schedule of Aironet
Wireless Communications, Inc. and Subsidiaries as of March 31, 1998 and 1999 and
for the three years in the period ended March 31, 1999, which appears in the
Aironet Wireless Communications, Inc. and Subsidiaries' Registration Statement
on Form S-1 (File No. 333-78507).
/s/ PricewaterhouseCoopers LLP
----------------------------
PricewaterhouseCoopers LLP
Cleveland, Ohio
September 10, 1999
