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EXHIBIT 4.2
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TRENWICK GROUP LTD.
and
FIRST CHICAGO TRUST COMPANY OF NEW YORK
Rights Agent
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Rights Agreement
Dated as of September 27, 2000
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TABLE OF CONTENTS
<TABLE>
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SECTION PAGE
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Section 1. Certain Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Appointment of Rights Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 3. Issue of Rights Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 4. Form of Rights Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 5. Countersignature and Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 6. Transfer, Split Up, Combination and Exchange of Rights Certificates; Mutilated, Destroyed,
Lost or Stolen Rights Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights. . . . . . . . . . . . . . . . . 10
Section 8. Cancellation and Destruction of Rights Certificates. . . . . . . . . . . . . . . . . . . . . . 11
Section 9. Reservation and Availability of Capital Shares. . . . . . . . . . . . . . . . . . . . . . . . .12
Section 10. Series A Preferred Shares Record Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
Section 11. Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. . . . . . . . . . .13
Section 12. Certificate of Adjusted Purchase Price or Number of Shares . . . . . . . . . . . . . . . . . . .21
Section 13. Consolidation, Amalgamation or Sale or Transfer of Assets or Earning Power . . . . . . . . . . .21
Section 14. Fractional Rights and Fractional Shares. . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
Section 15. Rights of Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
Section 16. Agreement of Rights Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
Section 17. Rights Certificate Holder Not Deemed a Shareholder . . . . . . . . . . . . . . . . . . . . . . .26
Section 18. Concerning the Rights Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
Section 19. Merger or Consolidation or Change of Name of Rights Agent. . . . . . . . . . . . . . . . . . . .27
Section 20. Duties of Rights Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
</TABLE>
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<TABLE>
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Section 21. Change of Rights Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
Section 22. Issuance of New Rights Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
Section 23. Redemption and Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
Section 24. Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
Section 25. Notice of Proposed Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
Section 26. Notice or Demands. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
Section 27. Supplements, Deletions and Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
Section 28. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
Section 29. Determinations and Actions by the Board, etc . . . . . . . . . . . . . . . . . . . . . . . . . . .35
Section 30. Benefits of this Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
Section 31. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
Section 32. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
Section 33. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
Section 34. Descriptive Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
EXHIBITS
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EXHIBIT A -- Certificate of Designation; Preferences and Rights of
Series A First Preference Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
EXHIBIT B -- Form of Rights Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
EXHIBIT C -- Summary of Rights of Series A First Preference Shares . . . . . . . . . . . . . . . . . . . . . C-1
</TABLE>
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TABLE OF DEFINED TERMS
<TABLE>
<CAPTION>
TERM DEFINED SECTION
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<S> <C>
Acquiring Person l(a)
Act l(b)
Adjustment Shares 11(a)(ii)
Affiliate l(c)
Agreement Intro
Associate l(c)
Beneficial Owner l(d)
Board Intro
Business Day l(e)
Close of Business 1(f)
Common Shares 1(g)
Common Share Equivalents 11(a)(iii)
Company (Trenwick Group Ltd.) Intro
Company (Following a Section 13(a) Event) 13(a)
Current Market Price of the Common 11(d)(i)
Shares
Current Market Price of the Series A 11(d)(ii)
Preferred Shares
Current Value 11(a)(iii)
Distribution Date 3(a)
Equivalent Series A Preferred Shares 11(b)
Exchange Act l(c)
Exchange Ratio 24(a)
Expiration Date 7(a)
Final Expiration Date 7(a)
Grandfathered Percentage l(o)
Grandfathered Person 1(p)
NASDAQ 11(d)(i)
Original Rights 1(d)(i)
Person 1(q)
Series A Preferred Shares 1(aa)
Principal Party 13(b)
Purchase Price 4(a)
Purchase Price (after a Section 11(a) Event) 11(a)(ii)
Purchase Price (after a Section 13 Event) 13(a)
Record Date 1(t)
Redemption Price 23(a)
Rights Intro
Rights Agent Intro
Rights Certificates 3(a)
Rights Dividend Declaration Date Intro
Section 11(a)(ii) Event 1(y)
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<TABLE>
<S> <C>
Section 11(a)(ii) Trigger Date 1(z)
Section 13 Event 1(aa)
Spread 11(a)(iii)
Share Acquisition Date 1(dd)
Subsidiary 1(ee)
Substitution Period 11(a)(iii)
Summary of Rights 3(b)
Trading Day 11(d)(i)
Triggering Event 1(ii)
</TABLE>
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RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of September 27, 2000 (the "Agreement"),
between TRENWICK GROUP LTD., a company organized under the laws of Bermuda (the
"Company"), and FIRST CHICAGO TRUST COMPANY OF NEW YORK, a New York corporation
(the "Rights Agent").
W I T N E S S E T H:
WHEREAS, on September 26, 2000 the Board of Directors of the Company
(the "Board") approved this Rights Agreement, and authorized and declared a
dividend distribution of one Right (a "Right") for each Common Share, $.10 par
value per share, of the Company (the "Common Shares") to be issued at the close
of business on the Record Date (as hereinafter defined) and has authorized the
issuance of one Right (as such number may hereinafter be adjusted pursuant to
the provisions of Section 11(p) hereof) for each Common Share issued between
the Record Date (whether originally issued or delivered from the Company's
treasury) and the Distribution Date (as hereinafter defined), each Right
initially representing the right to purchase one one-hundredth of a Series A
First Preference Share, $.10 par value per share, of the Company having the
rights, powers and preferences set forth in the Certificate of Designation,
Preference and Rights of Series A First Preference Shares attached hereto as
Exhibit A, upon the terms and subject to the conditions hereinafter set forth;
and
WHEREAS, on September 26, 2000, the sole shareholder of the Company
approved the Company's adoption of this Rights Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the
following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall be the
Beneficial Owner of fifteen percent (15%) or more of the Common Shares then
issued and outstanding: provided, that Acquiring Person shall not include:
(i) the Company;
(ii) any Subsidiary of the Company;
(iii) any employee benefit plan of the Company or of any
Subsidiary of the Company;
(iv) any Person or entity organized, appointed or
established by the Company for or pursuant to the terms of any
such plan;
(v) any Grandfathered Person, unless such
Grandfathered Person after the Record Date becomes the
Beneficial Owner of more than the Grandfathered
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Percentage of the Common Shares then issued and outstanding. Any
Grandfathered Person who after the Record Date becomes the
Beneficial Owner of less than fifteen percent (15%) of the
Common Shares then issued and outstanding shall cease to be a
Grandfathered Person.
(vi) any Person who becomes the Beneficial Owner of
fifteen percent (15%) or more of the Common Shares then
outstanding as a result of a reduction in the number of Common
Shares outstanding due to the repurchase of Common Shares by the
Company unless and until such Person, after becoming aware that
such Person has become the Beneficial Owner of fifteen percent
(15%) or more of the then outstanding Common Shares, acquires
beneficial ownership of additional Common Shares representing
one percent (1%) or more of the Common Shares then outstanding;
or
(vii) any such Person who has reported or is required to
report such ownership (but less than twenty percent (20%)) on
Schedule 13G under the Exchange Act (or any comparable or
successor report) or on Schedule 13D under the Exchange Act (or
any comparable or successor report) which Schedule 13D does not
state any intention to or reserve the right to control or
influence the management or policies of the Company or engage in
any of the actions specified in Item 4 of such Schedule (other
than the disposition of the Common Shares) and, within ten (10)
Business Days of being requested by the Company to advise it
regarding the same, certifies to the Company that such Person
acquired Common Shares in excess of 14.9% inadvertently or
without knowledge of the terms of the Rights and who, together
with all Affiliates and Associates, thereafter does not acquire
additional Common Shares while the Beneficial Owner of fifteen
percent (15%) or more of the Common Shares then outstanding;
provided, however that if the Person requested to so certify
fails to do so within ten (10) Business Days, then such Person
shall become an Acquiring Person immediately after such ten (10)
Business Day Period.
(b) "Act" shall mean the Securities Act of 1933, as amended.
(c) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Exchange Act of 1934, as amended and in effect on the
date of this Agreement (the "Exchange Act").
(d) 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 conversion rights, exchange rights, 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
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offer made by such Person or any of such Person's Affiliates or
Associates until such tendered securities are accepted for
purchase or exchange, or (B) securities issuable upon exercise
of Rights at any time prior to the occurrence of a Triggering
Event, or (C) securities issuable upon 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 or pursuant to Section
3(a) or Section 22 hereof (the "Original Rights") or pursuant to
Section 11(i) hereof in connection with an 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), 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 security
under this subparagraph (ii) as a result of an agreement,
arrangement or understanding to vote such security if such
agreement, arrangement or understanding: (A) arises solely from
a revocable proxy given in response to a public proxy or consent
solicitation made pursuant to, and in accordance with, the
applicable provisions of the General Rules and Regulations under
the Exchange Act, and (B) is not then reportable by such Person
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 the proviso to subparagraph (ii) of this
paragraph (d)) or disposing of any voting securities of the
Company;
provided, however that nothing in this paragraph (d) 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.
(e) "Business Day" shall mean any day other than a Saturday,
Sunday or a day on which banking institutions in the State of New York or the
Islands of Bermuda are authorized or obligated by law or executive order to
close.
(f) "Close of business" on any given date shall mean 5:00
P.M., New York City time, on such date; provided, however that if such date is
not a Business Day it shall mean 5:00 P.M., New York City time, on the next
succeeding Business Day.
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(g) "Common Shares" shall have the meaning set forth in the
first WHEREAS clause at the beginning of this Agreement, except that "Common
Shares" when used with reference to any Person other than the Company shall
mean the capital shares of such Person with the greatest voting power, or the
equity securities or other equity interest having power to control or direct
the management, of such Person.
(h) "Common Share Equivalents" shall have the meaning set
forth in Section 11(a)(iii) hereof.
(i) "Current Market Price" shall have the meaning set forth in
Section 11(d)(i) hereof.
(j) "Current Value" shall have the meaning set forth in
Section 11(a)(iii) hereof.
(k) "Distribution Date" shall have the meaning set forth in
Section 3(a) hereof.
(l) "Exchange Act" shall have the meaning set forth in Section
1(c) hereof.
(m) "Expiration Date" shall have the meaning set forth in
Section 7(a) hereof.
(n) "Final Expiration Date" shall mean the close of business
on September 27, 2010.
(o) "Grandfathered Percentage" means, with respect to any
Grandfathered Person, the percentage of the Common Shares then in issue that
such Grandfathered Person, together with all Affiliates and Associates of such
Grandfathered Person, beneficially owns as of the Record Date; provided, that,
in the event that the percentage of Common Shares then in issue that a
Grandfathered Person beneficially owns shall decrease (whether due to the sale,
transfer or other disposition of Common Shares by the Grandfathered Person or
due to the dilution of the Grandfathered Person's interest in Common Shares as
a result of the issuance of additional Common Shares) after the Record Date,
the Grandfathered Percentage, with respect to such Grandfathered Person, shall
mean, subsequent to such sale, transfer, disposition or dilution, the
percentage of Common Shares then in issue that such Grandfathered Person,
together with all Affiliates and Associates of such Grandfathered Person,
beneficially owns immediately following such sale, transfer, disposition or
dilution.
(p) "Grandfathered Person" means any Person who, together with
all Affiliates and Associates of such Person is, as of the Record Date, the
Beneficial Owner of fifteen percent (15%) or more of the Common Shares then in
issue.
(q) "Person" shall mean any individual, firm, corporation,
partnership or other entity.
(r) "Principal Party" shall have the meaning set forth in
Section 13(b) hereof.
(s) "Purchase Price" shall have the meaning set forth in
Section 4(a) hereof.
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(t) "Record Date" shall be the same date on which the
Effective Time shall occur of the Amended and Restated Agreement, Schemes of
Arrangement and Plan of Reorganization, dated as of March 20, 2000 and amended
as of June 28, 2000, by and among LaSalle Re Holdings Limited ("LaSalle
Holdings"), a company organized under the laws of Bermuda, LaSalle Re Limited,
a company organized under the laws of Bermuda and a majority-owned subsidiary
of LaSalle Holdings, Trenwick Group Inc., a Delaware corporation, and Trenwick
Group Ltd. (formerly known as Gowin Holdings International Limited).
(u) "Redemption Price" shall have the meaning set forth in
Section 23(a) hereof.
(v) "Rights" shall have the meaning set forth in the first
WHEREAS clause at the beginning of the Agreement.
(w) "Rights Agent" shall have the meaning set forth in the
parties clause at the beginning of this Agreement.
(x) "Rights Certificates" shall have the meaning set forth in
Section 3(a) hereof.
(y) "Section 11(a)(ii) Event" shall mean any event described
in Section 11(a)(ii) hereof.
(z) "Section 11(a)(ii) Trigger Date" shall have the meaning
set forth in Section 11(a)(iii) hereof.
(aa) "Section 13 Event" shall mean any event described in
clauses (x), (y) or (z) of Section 13(a) hereof.
(bb) "Series A Preferred Shares" shall mean shares of Series A
First Preference Shares, $.10 par value per share, of the Company, and, to the
extent that there are not a sufficient number of shares of Series A First
Preference Shares authorized to permit the full exercise of the Rights, any
other series of preferred shares of the Company designated for such purpose
containing terms substantially similar to the terms of the Series A First
Preference Shares.
(cc) "Spread" shall have the meaning set forth in Section
11(a)(iii) hereof.
(dd) "Share Acquisition Date" shall mean 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 or any comparable or successor report) by the Company or an Acquiring
Person that an Acquiring Person has become such.
(ee) "Subsidiary" shall mean, with reference to any Person, any
corporation of which an amount of voting securities sufficient to elect at
least a majority of the directors of such corporation is beneficially owned,
directly or indirectly, by such Person, or otherwise controlled by such Person.
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(ff) "Substitution Period" shall have the meaning set forth in
Section 11(a)(iii) hereof.
(gg) "Summary of Rights" shall have the meaning set forth in
Section 3(b) hereof.
(hh) "Trading Day" shall have the meaning set forth in Section
11(d)(i) hereof.
(ii) "Triggering Event" shall mean 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 rights agent for the Company in accordance with the
terms and conditions hereof, and the Rights Agent hereby accepts such
appointment. The Company may from time to time appoint such co-rights agents
as it may deem necessary or desirable upon ten (10) days prior written notice
to the Rights Agent. The Rights Agent shall have no duty to supervise and
shall in no event be liable for the acts or omissions of any such Co-Rights
Agent. If the Company appoints one or more Co-Rights Agents, the respective
duties of the Rights Agent and any Co-Rights Agents shall be as the Company
shall determine.
Section 3. Issue of Rights Certificates. Until the earlier of (i)
the close of business on the tenth day after the Share Acquisition Date, or
(ii) the close of business on the tenth Business Day (or such later date as the
Board shall determine) after the date that a tender or exchange offer by any
Person (other than the Company, any Subsidiary of the Company, or any employee
benefit plan of the Company or of any Subsidiary of the Company, or any Person
or entity organized, appointed or established by the Company for or pursuant to
the terms of any such plan) is first published or sent or given within the
meaning of Rule 14d-2(a) of the General Rules and Regulations under the
Exchange Act, if upon consummation thereof, such Person would be the Beneficial
Owner of fifteen percent (15%) or more of the Common Shares then outstanding
(the earlier of (i) and (ii) being herein referred to 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 the Common Shares
registered in the names of the holders of the Common Shares (which certificates
for Common Shares shall be deemed also to be certificates for Rights) and not
by separate certificates, and (y) the Rights will be transferable only in
connection with the transfer of the underlying Common Shares (including a
transfer to the Company). As soon as practicable after the Distribution Date,
the Rights Agent will send by first-class, insured, postage prepaid mail, to
each record holder of the Common Share as of the close of business on the
Distribution Date, at the address of such holder shown on the records of the
Company, one or more right certificates, in substantially the form of Exhibit B
hereto (the "Rights Certificates"), evidencing one Right for each Common Share
so held, subject to adjustment as provided herein. In the event that an
adjustment in the number of Rights per Common Share has been made pursuant to
Section 11(p) hereof, at the time of distribution of the Right Certificates,
the Company shall make, and notify the Rights Agent of, the necessary and
appropriate rounding adjustments (in accordance with Section 14(a) hereof) so
that Rights Certificates representing only whole numbers of Rights are
distributed and cash is paid in lieu of any fractional Rights. As of and after
the Distribution Date, the Rights will be evidenced solely by such Rights
Certificates.
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<PAGE> 12
(b) The Company will make available a copy of a Summary of
Rights, in substantially the form attached hereto as Exhibit C (the "Summary of
Rights"), to any holder of Rights who may so request from time to time. With
respect to certificates for the Common Shares outstanding as of the Record Date
or which were issued subsequent to the Record Date, unless and until the
Distribution Date shall occur, the Rights will be evidenced by such
certificates for the Common Shares and the registered holders of the Common
Shares shall also be the registered holders of the associated Rights. Until
the earlier of the Distribution Date or the Expiration Date (as hereinafter
defined), the transfer of any certificates representing Common Shares in
respect of which Rights have been issued shall also constitute the transfer of
the Rights associated with such Common Shares.
(c) Rights shall be issued in respect of all Common Shares
which are issued (whether originally issued or from the Company's treasury)
after the Record Date but prior to the earlier of the Distribution Date or the
Expiration Date. Certificates representing such Common Shares shall also be
deemed to be certificates for Rights, and shall bear the following legend:
This certificate also evidences and entitles the holder
hereof to certain Rights as set forth in the Rights
Agreement between Trenwick Group Ltd. (the "Company") and
the Rights Agent thereunder (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
the Company. Under certain circumstances, as set forth in
the Rights Agreement, such Rights will be evidenced by
separate certificates and will no longer be evidenced by
this certificate. The Company will mail to the holder of
this certificate a copy of the Rights Agreement, as in
effect on the date of mailing, without charge, promptly
after receipt of a written request therefor. Under
certain circumstances set forth in the Rights Agreement,
Rights issued to, or held by, any Person who is, was or
becomes an Acquiring Person or any Affiliate or Associate
thereof (as such terms are defined in the Rights
Agreement), whether currently held by or on behalf of such
Person or by any subsequent holder, may become null and
void.
With respect to such certificates containing the foregoing legend, until the
earlier of (i) the Distribution Date or (ii) the Expiration Date, the Rights
associated with the Common Shares represented by such certificates shall be
evidenced by such certificates alone and registered holders of Common Shares
shall also be the registered holders of the associated Rights, and the transfer
of any of such certificates shall also constitute the transfer of the Rights
associated with the Common Shares represented by such certificates.
Section 4. Form of Rights Certificates. The Rights Certificates (and
the forms of election to purchase and of assignment to be printed on the
reverse thereof) shall each be substantially in the form set forth in Exhibit B
hereto and may have such marks of identification or designation and such
legends, summaries or endorsements printed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any applicable law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Rights may from time
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<PAGE> 13
to time be listed, or to conform to usage. Subject to the provisions of Section
11 and Section 22 hereof, 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 one one-hundredths of a Series A Preferred
Share as shall be set forth therein at the price set forth therein (such
exercise price per one one-hundredth of a share, the "Purchase Price"), but the
amount and type of securities purchasable upon the exercise of each Right and
the Purchase Price thereof shall be subject to adjustment as provided herein.
(a) Any Rights Certificate issued pursuant to Section 3(a),
Section 11(i) or Section 22 hereof that represents Rights beneficially owned
by: (i) an Acquiring Person or any Associate or Affiliate of an Acquiring
Person, (ii) a transferee of an Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee after the Acquiring Person becomes such, or
(iii) a transferee of an Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee prior to or concurrently with the Acquiring
Person becoming such and receives such Rights pursuant to either (A) a transfer
(whether or not for consideration) from the Acquiring Person to holders of
equity interests in such Acquiring Person or to any Person with whom such
Acquiring Person has any continuing agreement, arrangement or understanding
regarding the transferred Rights or (B) a transfer which the Board has
determined is part of a plan, arrangement or understanding which has as a
primary purpose or effect avoidance of Section 7(e) hereof, and any Rights
Certificate issued pursuant to Section 6 or Section 11 hereof upon transfer,
exchange, replacement or adjustment of any other Rights Certificate referred to
in this sentence, shall contain (to the extent feasible) the following legend:
The Rights represented by this Rights Certificate are or
were beneficially owned by a Person who was or became an
Acquiring Person or an Affiliate or Associate of an
Acquiring Person (as such terms are defined in the Rights
Agreement). Accordingly, this Rights Certificate and the
Rights represented hereby may become null and void in the
circumstances specified in Section 7(e) of the Rights
Agreement.
Section 5. Countersignature and Registration. The Rights
Certificates shall be executed on behalf of the Company by its Chairman of the
Board, its President or any Vice President, either manually or by facsimile
signature, and shall have affixed thereto the Company's seal or a facsimile
thereof which shall be attested by the Secretary or an Assistant Secretary or
the Treasurer or an Assistant Treasurer of the Company, either manually or by
facsimile signature. The Rights Certificates shall be manually countersigned
by the Rights Agent 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 the execution of such
Rights Certificate, shall be a proper officer of the Company to sign such
Rights Certificate, although at the date of the execution of this Rights
Agreement any such person was not such an officer.
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(b) Following the Distribution Date, the Rights Agent will
keep or cause to be kept, at its principal office or offices designated as the
appropriate place for surrender of Rights Certificates upon exercise or
transfer, books for registration and transfer of the Rights Certificates issued
hereunder. Such books shall show the names and addresses of the respective
holders of the Rights Certificates, the number of Rights evidenced 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 14 hereof,
at any time after the close of business on the Distribution Date, and at or
prior to the close of business on the Expiration Date, any Rights Certificate
or Certificates (other than Rights Certificates that may have been exchanged
pursuant to Section 24) may be transferred, split up, combined or exchanged for
another Rights Certificate or Certificates, entitling the registered holder to
purchase a like number of one one-hundredths of a Series A Preferred Share (or,
following a Triggering Event, Common Shares, other securities, cash or other
assets, as the case may be) as the Rights Certificate or Certificates
surrendered then entitles such holder (or former holder in the case of a
transfer) to purchase. Any registered holder desiring to transfer, split up,
combine or exchange any Rights Certificate or Certificates shall make such
request in writing delivered to the Rights Agent, and shall surrender the
Rights Certificate or Certificates to be transferred, split up, combined or
exchanged at the principal office or offices of the Rights Agent designated for
such purpose. Neither the Rights Agent nor the Company shall be obligated to
take any action whatsoever with respect to the transfer of any such surrendered
Rights Certificate until the registered holder shall have completed and signed
the certificate contained in the form of assignment on the reverse side of such
Rights Certificate and shall have provided such additional evidence of the
identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or
Associates thereof as the Company shall reasonably request. Thereupon the
Rights Agent shall, subject to Section 4(b), Section 7(e) and Section 14
hereof, 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.
(b) Upon receipt by the Company and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft, destruction or
mutilation of a Rights Certificate, and, in case of loss, theft or destruction,
of indemnity or security satisfactory to them, and reimbursement to the Company
and the Rights Agent of all reasonable expenses incidental thereto, and upon
surrender to the Rights Agent and cancellation of the Rights Certificate if
mutilated, the Company will 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. Subject to Section 7(e) hereof, the registered holder of any Rights
Certificate may exercise the Rights evidenced thereby (except as otherwise
provided herein including, without limitation, the restrictions on
exercisability set forth in Section 9(c), Section 11(a) (iii) and Section 23(a)
hereof) in whole or in part at any time after the Distribution Date upon
surrender of the Rights Certificate, with the form of election to purchase and
the certificate on the reverse side thereof duly executed, to the Rights Agents
at the principal office or offices, of the Rights Agent designated for such
purpose, together with payment of the aggregate Purchase Price with respect to
the total number of one one-hundredths of a share (or other securities, cash or
other assets, as the case may be) as to which such surrendered Rights are then
exercisable, at or prior to the earlier of (i) the close of business on
September 27, 2010 (the "Final Expiration Date"), or (ii) the time at which the
Rights are redeemed as provided in Sections 23 and 24 hereof (the earlier of
(i) and (ii) being herein referred to as the "Expiration Date").
(b) The Purchase Price for each one one-hundredth of a Series
A Preferred Share pursuant to the exercise of a Right shall initially be
$85.00, and shall be subject to adjustment from time to time as provided in
Section 11 and Section 13(a) hereof and shall be payable in accordance with
paragraph (c) below.
(c) Upon receipt of a Rights Certificate representing
exercisable Rights, with the form of election to purchase and the certificate
duly executed, accompanied by payment, with respect to each Right so exercised,
of the Purchase Price per one one-hundredth of a Series A Preferred Share (or
other shares, securities, cash or other assets, as the case may be) to be
purchased as set forth below and an amount equal to any applicable transfer
tax, the Rights Agent shall, subject to Section 20(k) hereof, thereupon
promptly (i)(A) requisition from any transfer agent of the Series A Preferred
Shares (or make available, if the Rights Agent is the transfer agent for such
shares) certificates for the total number of one one-hundredths of a Series A
Preferred Share to be purchased and the Company hereby irrevocably authorizes
its transfer agent to comply with all such requests, or (B) if the Company
shall have elected to deposit the total number of Series A Preferred Shares
issuable upon exercise of the Rights hereunder with a depositary agent,
requisition from the depositary agent depositary receipts representing such
number of one one-hundredths of a Series A Preferred Share as are to be
purchased (in which case certificates for the Series A Preferred Shares
represented by such receipts shall be deposited by the transfer agent with the
depositary agent) and the Company will direct the depositary agent to comply
with such request, (ii) requisition from the Company the amount of cash, if
any, to be paid in lieu of fractional shares in accordance with Section 14
hereof, (iii) after receipt of such certificates or depositary receipts, cause
the same to be delivered to or upon the order of the registered holder of such
Rights Certificate, registered in such name or names as may be designated by
such holder, and (iv) after receipt thereof, deliver such cash, if any, to or
upon the order of the registered holder of such Rights Certificate. The
payment of the Purchase Price (as such amount may be reduced pursuant to
Section 11(a) hereof) shall be made in cash or by certified bank check or bank
draft payable to the order of the Company. In the event that the Company is
obligated to issue other securities (including Common Shares) of the Company,
pay cash and/or distribute other property pursuant to Section 11(a) hereof, the
Company will make all arrangements necessary so that such other securities,
cash and/or other property are available for distribution by the Rights Agent,
if and when appropriate. The Company reserves the right to
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<PAGE> 16
require prior to the occurrence of a Triggering Event that, upon any exercise
of Rights, a number of Rights be exercised so that only whole Series A
Preferred Shares would be issued.
(d) In case the registered holder of any Rights Certificate
shall exercise less than all the Rights evidenced thereby, a new Rights
Certificate evidencing Rights equivalent to the Rights remaining unexercised
shall be issued by the Rights Agent and delivered to, or upon the order of, the
registered holder of such Rights Certificate, registered in such name or names
as may be designated by such holder, subject to the provisions of Section 6 and
Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the
contrary, from and after the first 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 an Acquiring Person (or
of any such Associate or Affiliate) who becomes a transferee after the
Acquiring Person becomes such, or (iii) a transferee of an Acquiring Person (or
of any such Associate or Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person becoming such and receives such Rights
pursuant to either (A) a transfer (whether or not for consideration) from the
Acquiring Person to holders of equity interests in such Acquiring Person or to
any Person with whom the Acquiring Person has any continuing agreement,
arrangement or understanding regarding the transferred Rights or (B) a transfer
which the Board has determined is part of a plan, arrangement or understanding
which has as a primary purpose or effect the avoidance of this Section 7(e),
shall become null and void without any further action and no holder of such
Rights shall have any rights whatsoever with respect to such Rights, whether
under any provision of this Agreement or otherwise. The Company shall use all
reasonable efforts to insure that the provisions of this Section 7(e) and
Section 4(b) hereof are complied with, but shall have no liability to any
holder of Rights Certificates or other Person as a result of its failure to
make any determinations with respect to an Acquiring Person or its Affiliates,
Associates or transferees hereunder.
(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 such registered
holder shall have (i) completed and signed the certificate contained in the
form of election to purchase set forth on the reverse side of the Rights
Certificate surrendered for such exercise, and (ii) provided such additional
evidence of the identity of the Beneficial Owner (or former 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 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
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<PAGE> 17
written request of the Company, destroy such canceled Rights Certificates, and
in such case shall deliver a certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Capital Shares. The
Company covenants and agrees that it will cause to be reserved and kept
available out of its authorized and unissued Series A Preferred Shares (and,
following the occurrence of a Triggering Event, out of its authorized and
unissued Common Shares and/or other securities or out of its authorized and
issued shares held in its treasury), the number of Series A Preferred Shares
(and, following the occurrence of a Triggering Event, Common Shares and/or
other securities) that, as provided in this Agreement including Section
11(a)(iii) hereof, will be sufficient to permit the exercise in full of all
outstanding Rights.
(b) So long as the Series A Preferred Shares (and, following
the occurrence of a Triggering Event, Common Shares and/or other securities)
issuable and deliverable upon the exercise of the Rights may be listed on any
national securities exchange, 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 upon official notice of
issuance upon such exercise.
(c) The Company shall use its best efforts to (i) file, as
soon as practicable following the earliest date after the first occurrence of a
Section 11(a)(ii) Event on which the consideration to be delivered by the
Company upon exercise of the Rights has been determined in accordance with
Section 11(a) (iii) hereof, a registration statement under the Act, with
respect to the securities purchasable upon exercise of the Rights on an
appropriate form, (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 date of the
expiration of the Rights. The Company will also take such action as may be
appropriate under, or to ensure compliance with, the securities or "blue sky"
laws of the various states in connection with the exercisability of the Rights.
The Company may temporarily suspend, for a period of time not to exceed ninety
(90) days after the date set forth in clause (i) of the first sentence of this
Section 9(c), the exercisability of the Rights in order to prepare and file
such registration statement and permit it to become effective. Upon any such
suspension, the Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended, as well as a
public announcement at such time as the suspension is no longer in effect. In
addition, if the Company shall determine that a registration statement is
required following the Distribution Date, the Company may temporarily suspend
the exercisability of the Rights until such time as a 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 is not permitted under applicable law or a registration
statement has not been declared effective.
(d) The Company covenants and agrees that it will take all
such action as may be necessary to ensure that all one one-hundredths of a
Series A Preferred Share (and, following the occurrence of a Triggering Event,
Common Share and/or other securities) delivered upon exercise of Rights shall,
at the time of delivery of the certificates for such shares (subject to
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<PAGE> 18
payment of the Purchase Price), be duly and validly authorized and issued and
fully paid and non-assessable.
(e) 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 and of any certificates for a number of one one-hundredths of a
Series A Preferred Share (or Common Share and/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 the
issuance or delivery of a number of one one-hundredths of a Series A Preferred
Share (or Common Share and/or other securities, as the case may be) in respect
of 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 a number of one one-hundredths of a Series A Preferred Share
(or Common Share and/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.
Section 10. Series A Preferred Shares Record Date. Each person in
whose name any certificate for a number of one one-hundredths of a Series A
Preferred Share (or Common Shares and/or other securities, as the case may be)
is issued upon the exercise of Rights shall for all purposes be deemed to have
become the holder of record of such fractional Series A Preferred Shares (or
Common Shares and/or other securities, as the case may be) represented thereby
on, and such certificate shall be dated the date upon which the Rights
Certificate evidencing such Rights was duly surrendered and payment of the
Purchase Price (and all applicable transfer taxes) was made; provided, however
that if the date of such surrender and payment is a date upon which the
Preferred Shares (or Common Shares and/or other securities, as the case may be)
transfer books of the Company are closed, such Person shall be deemed to have
become the record holder of such shares (fractional or otherwise) on, and such
certificate shall be dated, the next succeeding Business Day on which the
Series A Preferred Shares (or Common Shares and/or other securities, as the
case may be) transfer books of the Company are open. Prior to the exercise of
the Rights evidenced thereby, the holder of a Rights Certificate shall not be
entitled to any rights of a shareholder of the Company with respect to shares
for which the Rights shall be exercisable, including, without limitation, the
right to vote, to receive dividends or other distributions or to exercise any
preemptive rights, and shall not be entitled to receive any notice of any
proceedings of the Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number 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 Series A Preferred Shares payable in Series A Preferred
Shares, (B) subdivide the outstanding Series A Preferred Shares,
(C) combine the outstanding Series A Preferred Shares into a
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<PAGE> 19
smaller number of shares, or (D) issue any of its capital shares
in a reclassification of the Series A Preferred Shares
(including any such reclassification in connection with a
consolidation, amalgamation or combination in which the Company
is the continuing or surviving corporation), except as otherwise
provided in this Section 11(a) and Section 7(e) hereof, the
Purchase Price in effect at the time of the record date for such
dividend or of the effective date of such subdivision,
combination or reclassification, and the number and kind of
Series A Preferred Shares or capital shares, as the case may be,
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 payment of the Purchase Price then in
effect, the aggregate number and kind of Series A Preferred
Shares or capital shares, as the case may be, which, if such
Right had been exercised immediately prior to such date and at a
time when the Series A Preferred Shares transfer books of the
Company were open, he would have owned upon such exercise and
been entitled to receive by virtue of such dividend,
subdivision, combination or reclassification. If an event
occurs which would require an adjustment under both this Section
11(a)(i) and Section 11(a)(ii) hereof, 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) hereof.
(ii) In the event any Person, alone or together with
its Affiliates and Associates, shall, at any time after the
Record Date, becomes an Acquiring Person, unless the event
causing such Person to become an Acquiring Person is a
transaction set forth in Section 13(a) hereof, or is an
acquisition of shares of Common Shares pursuant to a tender
offer or an exchange offer for all outstanding shares of Common
Shares at a price and on terms determined by at least a majority
of the Board who are not officers of the Company and who are not
representatives, nominees, Affiliates or Associates of an
Acquiring Person, after receiving advice from one or more
investment banking firms, to be (A) at a price that is not
inadequate (taking into account all factors which such members
of the Board deem relevant including, without limitation, prices
which could reasonably be achieved if the Company or its assets
were sold on an orderly basis designed to realize maximum value)
and (B) otherwise in the best interests of the Company and its
shareholders, then, promptly following the occurrence of such
event, proper provision shall be made so that each holder of a
Right (except as provided below and in Section 7(e) hereof)
shall thereafter have the right to receive, upon exercise
thereof at the then current Purchase Price in accordance with
the terms of this Agreement, in lieu of a number of one
one-hundredths of a Series A Preferred Share, such number of
Common Shares of the Company as shall equal the result obtained
by (x) multiplying the then current Purchase Price by the then
number of one one-hundredths of a Series A Preferred Share for
which a Right was exercisable immediately prior to the first
occurrence of a Section 11(a)(ii) Event, and (y) dividing that
product (which, following such first occurrence, shall
thereafter be referred to as the "Purchase Price" for each Right
and for all purposes of this Agreement) by fifty percent (50%)
of the Current Market Price (determined pursuant to Section
11(d) hereof) per Common Share on the date of such first
occurrence (such number of shares, the "Adjustment
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<PAGE> 20
Shares").
(iii) In the event that the number of Common Shares
which are authorized by the Company's certificate of
incorporation but not outstanding or reserved for issuance for
purposes other than upon exercise of the Rights are not
sufficient to permit the exercise in full of the Rights in
accordance with the foregoing subparagraph (ii) of this Section
11(a), the Company shall: (A) determine the value of the
Adjustment Shares issuable upon the exercise of a Right (the
"Current Value"), and (B) with respect to each Right, make
adequate provision to substitute for the Adjustment Shares, upon
the exercise of a Right and payment of the applicable Purchase
Price, (1) cash, (2) a reduction in the Purchase Price, (3)
Common Shares or other equity securities of the Company
(including, without limitation, preferred shares, or units of
preferred shares, such as the Series A Preferred Shares, which
the Board has deemed to have the same value or economic rights
as Common Shares (such preferred shares being referred to as
"Common Share Equivalents")), (4) debt securities of the
Company, (5) other assets, or (6) any combination of the
foregoing, having 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; provided, however that if
the Company shall not have made adequate provision to deliver
value pursuant to clause (B) above within thirty (30) days
following the later of (x) the first occurrence of a Section
11(a)(ii) Event and (y) the date on which the Company's right of
redemption pursuant to Section 23(a) expires (the later of (x)
and (y) being referred to herein is 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, Common Shares (to the extent
available) and then, if necessary, cash, which shares and/or
cash have an aggregate value equal to the Spread. For purposes
of the preceding sentence, the term "Spread" shall mean the
excess of (i) the Current Market Value over (ii) the Purchase
Price. If the Board determines in good faith that it is likely
that sufficient additional Common Shares could be authorized for
issuance upon exercise in full of the Rights, the thirty (30)
day period set forth above may be extended to the extent
necessary, but not more than ninety (90) days after the Section
11(a)(ii) Trigger Date, in order that the Company may seek
shareholder approval for the authorization of such additional
shares (such thirty (30) day period, as it may be extended, is
herein called the "Substitution Period"). To the extent that
action is to be taken pursuant to the first and/or third
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 such shareholder approval
for such 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, as well as a public announcement at
such time as the suspension is no longer in effect. For
purposes of this Section 11(a)(iii), the value
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<PAGE> 21
of each Adjustment Share shall be the Current Market Price per
Common Share on the Section 11(a)(ii) Trigger Date and the per
share or per unit value of any Common Share Equivalent shall be
deemed to equal the Current Market Value per Common Share on
such date.
(b) In case the Company shall fix a record date for the
issuance of rights, options or warrants to all holders of Series A Preferred
Shares entitling them to subscribe for or purchase (for a period expiring
within forty-five (45) calendar days after such record date) Series A Preferred
Shares (or shares having the same rights, privileges and preferences as the
Series A Preferred Shares ("Equivalent Preferred Shares")) or securities
convertible into Series A Preferred Shares or Equivalent Preferred Shares at a
price per Series A Preferred Share or per Equivalent Preferred Share (or having
a conversion price per share, if a security convertible into Series A Preferred
Shares or Equivalent Preferred Shares) less than the Current Market Price (as
determined pursuant to Section 11(d) hereof) per Series A Preferred Share on
such record date, the Purchase Price to be in effect after such record date
shall be determined by multiplying the Purchase Price in effect immediately
prior to such record date by a fraction, the numerator of which shall be the
number of Series A Preferred Shares outstanding on such record date, plus the
number of Series A Preferred Shares which the aggregate offering price of the
total number of Series A Preferred Shares and/or Equivalent Preferred Shares so
to be offered (and/or the aggregate initial conversion price of the convertible
securities so to be offered) would purchase at such Current Market Price, and
the denominator of which shall be the number of Series A Preferred Shares
outstanding on such record date, plus the number of additional Series A
Preferred Shares and/or Equivalent Preferred Shares to be offered for
subscription or purchase (or into which the convertible securities so to be
offered are initially convertible). In case such subscription price may be
paid by delivery of consideration part or all of which may be in a form other
than cash, the value of such consideration shall be as determined in good faith
by the Board, whose determination shall be described in a statement filed with
the Rights Agent and shall be binding on the Rights Agent and the holders of
the Rights. Series A Preferred Shares owned by or held for the account of the
Company shall not be deemed outstanding for the purpose of any such
computation. Such adjustment shall be made successively whenever such a record
date is fixed, and in the event that such rights or warrants are not so issued,
the Purchase Price shall be adjusted to be the Purchase Price which would then
be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a
distribution to all holders of Series A Preferred Shares (including any such
distribution made in connection with a consolidation, amalgamation or
combination in which the Company is the continuing or surviving corporation) of
evidences of indebtedness, cash (other than a regular quarterly cash dividend
out of the earnings or retained earnings of the Company), assets (other than a
dividend payable in Series A Preferred Shares, but including any dividend
payable in shares other than Series A Preferred Shares) or subscription rights
or warrants (excluding those referred to in Section 11(b) hereof, the Purchase
Price to be in effect after such record date shall be determined by multiplying
the Purchase Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the Current Market Price (as
determined pursuant to Section 11(d) hereof) per Series A Preferred Share on
such record date, less the fair market value (as determined in good faith by
the Board, whose determination shall be described in a statement filed with the
Rights Agent) of the portion of the cash, assets or evidences of indebtedness
so to
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<PAGE> 22
be distributed or of such subscription rights or warrants applicable to a
Series A Preferred Share and the denominator of which shall be such Current
Market Price (as determined pursuant to Section 11(d) hereof) per Series A
Preferred Share. 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 have
been in effect if such record date had not been fixed.
(d) (i) For the purpose of any computation hereunder,
other than computations made pursuant to Section 11(a)(iii) hereof, the Current
Market Price per Common Share on any date shall be deemed to be the average of
the daily closing prices per share of such Common Shares for the thirty (30)
consecutive Trading Days (as hereinafter defined) immediately prior to such
date, and for purposes of computations made pursuant to Section 11(a)(iii)
hereof, the Current Market Price per Common Share on any date shall be deemed
to be the average of the daily closing prices per share of such Common Shares
for the ten (10) consecutive Trading Days immediately following such date;
provided, however that in the event that the Current Market Price per Common
Share is determined during a period following the announcement by the issuer of
such Common Shares of (A) a dividend or distribution on such Common Shares
payable in such Common Shares or securities convertible into such Common Shares
(other than the Rights), or (B) any subdivision, combination or
reclassification of such Common Shares, and the ex-dividend date for such
dividend or distribution, or the record date for such subdivision, combination
or reclassification shall not have occurred prior to the commencement of the
requisite thirty (30) Trading Day or ten (10) Trading Day period, as set forth
above, then, and in each such case, the Current Market Price shall be properly
adjusted to take into account ex-dividend trading. 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 Common Shares 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 Common Shares are
listed or admitted to trading or, if the Common Shares are not listed or
admitted to trading on any national securities exchange, the last quoted price
or, if not so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by the National Association of Securities
Dealers, Inc. Automated Quotation System ("NASDAQ") or such other system then
in use, or, if on any such date the Common Shares 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 Common Shares selected by the
Board. If on any such date no market maker is making a market in the Common
Shares, the fair value of such shares on such date as determined in good faith
by the Board shall be used. The term "Trading Day" shall mean a day on which
the principal national securities exchange on which the Common Shares are
listed or admitted to trading is open for the transaction of business or, if
the Common Shares are not listed or admitted to trading on any national
securities exchange, a Business Day. If the Common Shares is not publicly held
or not so listed or traded, Current Market Price per share shall mean the fair
value per share as determined in good faith by the Board, whose determination
shall be described in a statement filed with the Rights Agent and shall be
conclusive for all purposes.
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<PAGE> 23
(ii) For the purpose of any computation hereunder, the
Current Market Price per Series A Preferred Share shall be determined
in the same manner as set forth above for the Common Share in clause
(i) of this Section 11(d) (other than the last sentence thereof). If
the Current Market Price per Series A Preferred Share cannot be
determined in the manner provided above or if the Series A Preferred
Share is not publicly held or listed or traded in a manner described
in clause (i) of this Section 11(d), the Current Market Price per
Series A Preferred Share shall be conclusively deemed to be an amount
equal to 100 (as such number may be appropriately adjusted for such
events as share splits, share dividends and recapitalizations with
respect to the Common Shares occurring after the date of this
Agreement) multiplied by the Current Market Price per Common Share.
If neither the Common Shares nor the Series A Preferred Shares is
publicly held or so listed or traded, Current Market Price per Series
A Preferred Share shall mean the fair value per share as determined in
good faith by the Board, whose determination shall be described in a
statement filed with the Rights Agent and shall be conclusive for all
purposes.
(e) Anything herein 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 of a Common
Share or other share or one-millionth of a Series A Preferred Share, as the
case may be. Notwithstanding the first sentence of this Section 11(e), any
adjustment required by this Section 11 shall be made no later than the earlier
of (i) three (3) years from the date of the transaction which mandates such
adjustment, or (ii) the Expiration Date.
(f) If as a result of an adjustment made pursuant to Section
11(a)(ii) or Section 13(a) hereof, the holder of any Right thereafter exercised
shall become entitled to receive any share capital other than Series A
Preferred Shares, 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 Series A Preferred Shares
contained in Sections 11(a), (b), (c), (e), (g), (h), (i), (j), (k) and (m),
and the provisions of Sections 7, 9, 10, 13 and 14 hereof with respect to the
Series A Preferred Shares shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent to
any adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of one one-hundredths of a
Series A Preferred Share purchasable from time to time hereunder upon exercise
of the Rights, all subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its election as
provided in Section 11(i), upon each adjustment of the Purchase Price as a
result of the calculations made in Sections 11(b) and (c), each Right
outstanding immediately prior to the making of such adjustment shall thereafter
evidence the right to purchase, at the adjusted Purchase Price, that number of
one one-hundredths of a Series A Preferred Share (calculated to the nearest
one-
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<PAGE> 24
millionth) obtained by (i) multiplying (x) the number of one one-hundredths of
a share covered by a Right immediately prior to this adjustment, by (y) the
Purchase Price in effect immediately prior to such adjustment of the Purchase
Price, and (ii) dividing the product so obtained by the Purchase Price in
effect immediately after such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of Rights, in lieu of any
adjustment in the number of one one-hundredths of a Series A Preferred Share
purchasable upon the exercise of a Right. Each of the Rights outstanding after
the adjustment in the number of Rights shall be exercisable for the number of
one one-hundredth of a Series A Preferred Share for which a Right was
exercisable immediately prior to such adjustment. Each Right held of record
prior to such adjustment of the number of Rights shall become that number of
Rights (calculated to the nearest one ten-thousandth) obtained by dividing the
Purchase Price in effect immediately prior to adjustment of the Purchase Price
by the Purchase Price in effect immediately after adjustment of the Purchase
Price. The Company shall make a public announcement of its election to adjust
the number of Rights, indicating the record date for the adjustment, and, if
known at the time, the amount of the adjustment to be made. This record date
may be the date on which the Purchase Price is adjusted or any day thereafter,
but, if the Rights Certificates have been issued, shall be at least ten (10)
days later than the date of the public announcement. If Rights Certificates
have been issued, upon each adjustment of the number of Rights pursuant to this
Section 11(i), the Company shall, as promptly as practicable, cause to be
distributed to holders of record of Rights Certificates on such record date
Rights Certificates evidencing, subject to Section 14 hereof, the additional
Rights to which such holders shall be entitled as a result of such adjustment,
or, at the option of the Company, shall cause to be distributed to such holders
of record in substitution and replacement for the Rights Certificates held by
such holders prior to the date of adjustment, and upon surrender thereof, if
required by the Company, new Rights Certificates evidencing all the Rights to
which such holders shall be entitled after such adjustment. Rights
Certificates so to be distributed shall be issued, executed and countersigned
in the manner provided for herein (and may bear, at the option of the Company,
the adjusted Purchase Price) and shall be registered in the names of the
holders of record of Rights Certificates on the record date specified in the
public announcement.
(j) Irrespective of any adjustment or change in the Purchase
Price or the number of one one-hundredths of a Series A Preferred Share
issuable upon the exercise of the Rights, the Rights Certificates theretofore
and thereafter issued may continue to express the Purchase Price per one
one-hundredth of a share and the number of one one-hundredths of a share which
were expressed in the initial Rights Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below the then stated value, if any, of the number
of one one-hundredths of a Series A Preferred Share 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 non-assessable such number of one one-hundredths
of a Series A Preferred Share at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for a
specified event, the Company may
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<PAGE> 25
elect to defer until the occurrence of such event the issuance to the holder of
any Right exercised after such record date the number of one one-hundredths of
a Series A Preferred Share and other share capital or securities of the
Company, if any, issuable upon such exercise over and above the number of one
one-hundredths of a Series A Preferred Share and other share capital 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 other appropriate
instrument evidencing such holder's right to receive such additional shares
(fractional or otherwise) or securities upon the occurrence of the event
requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such reductions in the
Purchase Price, in addition to those adjustments expressly required by this
Section 11, as and to the extent that in their good faith judgment the Board
shall determine to be advisable in order that any (i) consolidation or
subdivision of the Series A Preferred Shares, (ii) issuance wholly for cash of
any Series A Preferred Shares at less than the Current Market Price, (iii)
issuance wholly for cash of Series A Preferred Shares or securities which by
their terms are convertible into or exchangeable for Series A Preferred Shares,
(iv) share dividends or (v) issuance of rights, options or warrants referred to
in this Section 11, hereafter made by the Company to holders of its Series A
Preferred Shares shall not be taxable to such shareholders.
(n) The Company covenants and agrees that it shall not,
without shareholder approval, at any time after the Distribution Date, (i)
consolidate, amalgamate or otherwise combine under any applicable law with any
other Person (other than a Subsidiary of the Company in a transaction which
complies with Section 11(o) hereof), or (ii) sell or otherwise transfer (and/or
permit any of its Subsidiaries to sell or otherwise transfer), in one
transaction, or a series of related 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 or Persons
(other than the Company and/or any of its Subsidiaries in one or more
transactions each of which complies with Section 11(o) hereof), if (x) at the
time of or immediately after such consolidation, amalgamation, combination or
sale there are any rights, warrants or other instruments or securities
outstanding or agreements in effect which would substantially diminish or
otherwise eliminate the benefits intended to be afforded by the Rights or (y)
prior to, simultaneously with or immediately after such consolidation,
amalgamation, combination or sale, the shareholders 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.
(o) The Company covenants and agrees that, after the
Distribution Date, it will not, except as permitted by Section 23 or Section 27
hereof and to the extent necessary with required shareholder approval, take (or
permit any Subsidiary to take) any action if at the time such action is taken
it is reasonably foreseeable that such action will diminish substantially or
otherwise eliminate the benefits intended to be afforded by the Rights.
(p) Anything in this Agreement to the contrary
notwithstanding, in the event that the Company shall at any time after the
Record Date (i) declare a dividend on the outstanding Common Shares payable in
Common Shares, (ii) subdivide the outstanding
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<PAGE> 26
Common Shares, or (iii) combine the outstanding Common Shares into a smaller
number of shares, the number of Rights associated with each Common Share then
outstanding, or issued or delivered thereafter but prior to the Distribution
Date, shall be proportionately adjusted so that the number of Rights thereafter
associated with each Common Share following any such event shall equal the
result obtained by multiplying the number of Rights associated with each Common
Share immediately prior to such event by a fraction the numerator of which
shall be the total number of Common Shares outstanding immediately prior to the
occurrence of the event and the denominator of which shall be the total number
of Common Shares outstanding immediately following the occurrence of such
event.
Section 12. Certificate of Adjusted Purchase Price or Number of
Shares. Whenever an adjustment is made as provided in Section 11 and Section
13 hereof, 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 deliver to the Rights Agent, the registrar of the
Company and each transfer agent for the Series A Preferred Shares and the
Common Shares, a copy of such certificate, and (c) mail a brief summary thereof
to each holder of a Rights Certificate (or, if prior to the Distribution Date,
to each holder of a certificate representing Common Shares) in the manner set
forth in Section 26 thereof. The Rights Agent shall be fully protected in
relying on any such certificate and on any adjustment therein contained and
shall not be deemed to have knowledge of such adjustment unless and until it
shall have actually received such certificate.
Section 13. Consolidation, Amalgamation or Sale or Transfer of Assets
or Earning Power. In the event that, following the Share Acquisition Date,
directly or indirectly,
(x) the Company shall consolidate with, amalgamate, or
otherwise combine with any other Person (other than a Subsidiary
of the Company in a transaction which complies with Section
11(o) hereof), and the Company shall not be the continuing or
surviving corporation of such consolidation, amalgamation or
combination,
(y) any Person (other than a Subsidiary of the Company
in a transaction which complies with Section 11(o) hereof) shall
under any applicable law amalgamate or otherwise combine with or
into, the Company, and the Company shall be the continuing or
surviving corporation of such amalgamation or combination and,
in connection with such amalgamation or combination, all or part
of the outstanding Common Shares shall be changed into or
exchanged for shares or other securities of any other Person or
cash or any other property, or
(z) the Company shall sell or otherwise transfer (or
one or more of its Subsidiaries shall sell or otherwise
transfer), in one transaction or a series of related
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 Person or
Persons (other than the Company or any Subsidiary of the Company
in one or more transactions each of which complies with Section
11(o) hereof), then, and in each such case (except as may be
contemplated by Section 13(d) hereof), proper provision shall be
made so that: (i) each holder of a
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<PAGE> 27
Right, except 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, non-assessable and freely tradeable Common Shares of
the Principal Party (as such term is hereinafter defined), not
subject to any liens, encumbrances, rights of first refusal or
other adverse claims, as shall be equal to the result obtained
by (1) multiplying the then current Purchase Price by the number
of one one-hundredths of a Series A Preferred Share for which a
Right is exercisable immediately prior to the first occurrence
of a Section 13 Event (or, if a Section 11(a)(ii) Event has
occurred prior to the first occurrence of a Section 13 Event,
multiplying the number of such one one-hundredths of a share for
which a Right was exercisable immediately prior to the first
occurrence of a Section 11(a)(ii) Event by the Purchase Price in
effect immediately prior to such first occurrence), and dividing
that product (which, following the first occurrence of a Section
13 Event, shall be referred to as the "Purchase Price" for each
Right and for all purposes of this Agreement) by (2) fifty
percent (50%) of the Current Market Price (determined pursuant
to Section 11(d)(i) hereof) per Common Share 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 only to such
Principal Party following the first occurrence of a Section 13
Event; (iv) such Principal Party shall take such steps
(including, but not limited to, the reservation of a sufficient
number of its Common Shares) in connection with the consummation
of any such transaction as may be necessary to assure that the
provisions hereof shall thereafter be applicable, as nearly as
reasonably may be, in relation to its Common Shares thereafter
deliverable upon the exercise of the Rights; and (v) the
provisions of Section 11(a)(ii) hereof shall be of no effect
following the first occurrence of any Section 13 Event.
(b) "Principal Party" shall mean
(i) in the case of any transaction described in clause
(x) or (y) of the first sentence of Section 13(a), the Person
that is the issuer of any securities into which Common Shares of
the Company are converted in such amalgamation or combination,
and if no securities are so issued, the Person that is the other
party to such amalgamation or combination; and
(ii) in the case of any transaction described in clause
(z) of the first sentence 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;
provided, however that in any such case, (1) if the Common
Shares of such Person is not at such time and has not been
continuously over the preceding twelve (12) month period
registered under Section 12 of the Exchange Act, and such Person
is
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<PAGE> 28
a direct or indirect Subsidiary of another Person, the Common
Shares of which is and has been so registered, "Principal Party"
shall refer to such other Person; and (2) in case such Person is
a Subsidiary, directly or indirectly, of more than one Person,
the Common Shares 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 Shares having the greatest
aggregate market value.
(c) The Company shall not, without shareholder approval,
consummate any such consolidation, amalgamation, combination, sale or transfer
unless the Principal Party shall have a sufficient number of authorized shares
of its Common Shares which have not been issued or reserved for issuance to
permit the exercise in full of the Rights in accordance with this Section 13
and unless prior thereto the Company and such Principal Party shall have
executed and delivered to the Rights Agent a supplemental agreement providing
for the terms set forth in paragraphs (a) and (b) of this Section 13 and
further providing that, as soon as practicable after the date of any
consolidation, amalgamation, combination or sale of assets mentioned in
paragraph (a) of this Section 13, the Principal Party will:
(i) prepare and file a registration statement under
the Act, with respect to the Rights and the securities
purchasable upon exercise of the Rights on an appropriate form,
and will use its best efforts to cause such registration
statement to (A) become effective as soon as practicable after
such filing and (B) remain effective (with a prospectus at all
times meeting the requirements of the Act) until the Expiration
Date; and
(ii) deliver to holders of the Rights historical
financial statements for the Principal Party and each of its
Affiliates which comply in all respects with the requirements
for registration on Form 10 under the Exchange Act.
The provisions of this Section 13 shall similarly apply to successive
amalgamations or combinations or sales or other transfers. In the event that a
Section 13 Event shall occur at any time after the occurrence of a Section
11(a)(ii) Event, the Rights which have not theretofore been exercised shall
thereafter become exercisable in the manner described in Section 13(a).
(d) Notwithstanding anything in this Agreement to the
contrary, Section 13 shall not be applicable to a transaction described in
subparagraphs (x) and (y) of Section 13(a) if (i) such transaction is
consummated with a Person or Persons who acquired Common Shares pursuant to a
tender offer or exchange offer for all outstanding Common Shares which complies
with the provisions of Section 11(a)(ii) hereof (or a wholly owned subsidiary
of any such Person or Persons), (ii) the price per Common Share offered in such
transaction is not less than the price per Common Share paid to all holders of
Common Shares whose shares were purchased pursuant to such tender offer or
exchange offer and (iii) the form of consideration being offered to the
remaining holders of Common Shares pursuant to such transaction is the same as
the form of consideration paid pursuant to such tender offer or exchange offer.
Upon consummation of any such transaction contemplated by this Section 13(d),
all Rights hereunder shall expire.
Section 14. Fractional Rights and Fractional Shares. The Company
shall not be required to issue fractions of Rights, except prior to the
Distribution Date as provided in Section
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<PAGE> 29
11(p) hereof, or to distribute Rights Certificates which evidence fractional
Rights. In lieu of any such fractional Rights, the Company shall pay 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 purposes of
this Section 14(a), the current market value of a whole Right shall be the
closing price of the Rights for the Trading Day immediately prior to the date
on which such fractional Rights would have been otherwise issuable. The
closing price 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, if the Rights
are not listed or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting system with
respect to securities listed on the principal national securities exchange on
which the Rights are listed or admitted to trading, or if the Rights are not
listed or admitted to trading on any national securities exchange, the last
quoted price or, if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by NASDAQ or such other
system then in use or, if on any such date the Rights are not quoted by any
such organization, the average of the closing bid and asked prices as furnished
by a professional market maker making a market in the Rights selected by the
Board. 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 shall be as determined in good
faith by the Board. The Company shall promptly notify the Rights Agent of any
such determination of current market value.
(b) The Company shall not be required to issue fractions of
Series A Preferred Shares (other than fractions which are integral multiples of
one one-hundredth of a share of Series A Preferred Shares upon exercise of the
Rights or to distribute certificates which evidence fractional Series A
Preferred Shares (other than fractions which are integral multiples of one
one-hundredth of a share of Series A Preferred Shares). In lieu of fractional
Series A Preferred Shares, the Company may pay to the registered holders of
Rights Certificates at the time such Rights are exercised as herein provided an
amount in cash equal to the same fraction of the current market value of one
one-hundredth of a share of Series A Preferred Shares. For purposes of this
Section 14(b), the current market value of one one-hundredth of a Series A
Preferred Share shall be one one-hundredth of the closing price of a share of
Series A Preferred Share (as determined pursuant to Section 11(d)(ii) hereof)
for the Trading Day immediately prior to the date of such exercise.
(c) Following the occurrence of a Triggering Event, the
Company shall not be required to issue fractions of Common Shares upon exercise
of the Rights or to distribute certificates which evidence fractional Common
Shares. In lieu of fractional Common Shares, the Company may pay to the
registered holders of Rights Certificates at the time such Rights are exercised
as herein provided an amount in cash equal to the same fraction of the current
market value of one (1) Common Share. For purposes of this Section 14(c), the
current market value of one Common Share shall be the closing price of one
Common Share (as determined pursuant to Section 11(d)(i) hereof) for the
Trading Day immediately prior to the date of such exercise.
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<PAGE> 30
(d) The holder of a Right by the acceptance of the Rights
expressly waives his right to receive any fractional Rights or any fractional
shares upon exercise of a Right, except as permitted by this Section 14.
Section 15. Rights of Action. All rights of action in respect of the
benefits of the Rights evidenced by this Agreement, except the rights of action
given to the Rights Agent under Section 18 hereof, are vested in the respective
registered holders of the Rights Certificates (and, prior to the Distribution
Date, the registered holders of certificates representing the Common Shares);
and any registered holder of any Rights Certificate (or, prior to the
Distribution Date, of the Common Shares), without the consent of the Rights
Agent or of the holder of any other Rights Certificate (or, prior to the
Distribution Date, of any certificate representing of the Common Shares), may,
in his own behalf and for his own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company to enforce, or
otherwise act in respect of, his right to exercise the Rights evidenced by such
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 that the holders of
Rights would not have an adequate remedy at law for any breach of this
Agreement and will be entitled to specific performance of the obligations
hereunder and injunctive relief against actual or threatened violations of the
obligations hereunder of any Person subject to this Agreement.
Section 16. Agreement of Rights Holders. Every holder of a Right by
accepting the same consents and agrees with the Company and the Rights Agent
and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of Common Shares;
(b) after the Distribution Date, the Right Certificates are
transferable only on the record books of the Rights Agent if surrendered at the
principal office or offices of the Rights Agent designated for such purposes,
duly endorsed or accompanied by a proper instrument of transfer and with the
appropriate forms and certificates fully executed;
(c) subject to Section 6(a) and Section 7(f) hereof, the
Company and the Rights Agent may deem and treat the Person in whose name a
Rights Certificate (or, prior to the Distribution Date, a certificate
representing Common Shares) 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 certificate representing Common Shares
made by anyone other than the Company or the Rights Agent) for all purposes
whatsoever, and neither the Company nor the Rights Agent, subject to the last
sentence of Section 7(e) hereof, 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 of a beneficial interest in a Right 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
25
<PAGE> 31
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 17. Rights Certificate Holder Not Deemed a Shareholder. 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 number of one
one-hundredths of a Series A Preferred Share or any other securities of the
Company which may at any time be issuable on the exercise of the Rights
represented thereby, nor shall anything contained herein or in any Rights
Certificate be construed to confer upon the holder of any Rights Certificate,
as such, any of the rights of a shareholder of the Company or any right to vote
for the election of directors or upon any matter submitted to shareholders at
any meeting thereof, or to give or withhold consent to any corporate action, or
to receive notice of meetings or other actions affecting shareholders (except
as provided in Section 25 hereof), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by such Rights
Certificate shall have been exercised in accordance with the provisions hereof.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from time to time,
on demand of the Rights Agent, its reasonable expenses and counsel fees and
disbursements and other disbursements incurred in the execution and/or
administration of this Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights Agent for, and to
hold it harmless against, any loss, liability, or expense, incurred without
gross negligence, bad faith or willful misconduct on the part of the Rights
Agent, for anything done or omitted by the Rights Agent in connection with the
acceptance and administration of this Agreement or the exercise or performance
of its duties hereunder, including the costs and expenses of defending against
any claim of liability. The indemnity provided for herein shall survive the
expiration of the Rights and the termination of the Agreement.
(b) The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or omitted by it in
connection with the administration of this Agreement or the exercise or
performance of its duties hereunder in reliance upon any Rights Certificate or
certificate for Common Shares or for other securities of the Company,
instrument of assignment or transfer, power of attorney, endorsement,
affidavit, letter, notice, instruction, direction, consent, certificate,
statement, or other paper or document believed by it to be genuine and to be
signed, executed and, where necessary, verified or acknowledged, by the proper
Person or Persons.
Section 19. Merger or Consolidation or Change of Name of Rights Agent.
(a) Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be consolidated, or
any corporation resulting from any merger or consolidation to which the Rights
Agent or any successor Rights Agent shall be a party, or any corporation
succeeding to the corporate trust or stock transfer business of the Rights
Agent or any successor Rights Agent, shall be the successor to the Rights Agent
under this
26
<PAGE> 32
Agreement without the execution or filing of any paper or any further act on
the part of any of the parties hereto; provided, however that such corporation
would be eligible for appointment as a successor Rights Agent under the
provisions of Section 21 hereof. In case at the time such successor Rights
Agent shall succeed to the agency created by this Agreement, any of the Rights
Certificates shall have been countersigned but not delivered, any such
successor Rights Agent may adopt the countersignature of a 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 Rights Agent or in the name of the successor Rights
Agent; and in all such cases such Rights Certificates shall have the full force
provided in the Rights Certificates and in this Agreement.
(b) 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 20. Duties of Rights Agent. The Rights Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Rights Certificates,
by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may
be legal counsel for the Company), and the opinion of such counsel shall be
full and complete authorization and protection to the Rights Agent as to any
action taken or omitted 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, suffering or omitting to take any action hereunder,
such fact or matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved and
established by a certificate signed by the Chairman of the Board, 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, suffered or omitted in good faith by it under the provisions
of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder 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 or be
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<PAGE> 33
required to verify the same (except as to its countersignature thereof), but
all such statements and recitals are and shall be deemed to have been made by
the Company only.
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery hereof
(except the due execution hereof by the Rights Agent) or in respect of the
validity or execution of any 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
Section 11 or Section 13 hereof or responsible for the manner, method or amount
of any such adjustment or the ascertaining of the existence of facts that would
require any such adjustment (except with respect to the exercise of Rights
evidenced by Rights Certificates after actual notice of any such adjustment);
nor shall it by any act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of Common Shares or Series A
Preferred Shares to be issued pursuant to this Agreement or any Rights
Certificate or as to whether any Common Shares or Series A Preferred Shares
will, when so issued, be validly authorized and issued, fully paid and
non-assessable.
(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 its obligations under the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties hereunder
from the Chairman of the Board, the President, any Vice President, the
Secretary, any Assistant Secretary, the Treasurer or any Assistant Treasurer of
the Company, and to apply to such officers for advice or instructions in
connection with its duties, and it shall not be liable for any action taken,
suffered or omitted to be taken by it in good faith in accordance with
instructions of any such officer.
(h) The Rights Agent and any shareholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were not
Rights Agent under this Agreement. Nothing herein shall preclude the Rights
Agent from acting in any other capacity for the Company or for any other legal
entity.
(i) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder either
itself or by or through its attorneys or agents, and the Rights Agent shall not
be answerable or accountable for any act, default, neglect or misconduct of any
such attorneys or agents or for any loss to the Company resulting from any such
act, default, neglect or misconduct; provided that 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 hereunder or in the exercise
of its rights if there shall be reasonable grounds for believing
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<PAGE> 34
that repayment of such funds or adequate indemnification against such risk or
liability is not reasonably assured to it.
(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 of transfer without first consulting with the Company.
Section 21. Change of Rights Agent. The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this Agreement
upon thirty (30) days' notice in writing mailed to the Company, the registrar
of the Company and to each transfer agent of the Common Shares and Series A
Preferred Shares, by registered or certified mail, and, subsequent to the
Distribution Date, to the holders of the Rights Certificates by first-class
mail. The Company may remove the Rights Agent or any successor Rights Agent,
as the case may be, upon thirty (30) days' notice in writing, mailed to the
Rights Agent or successor Rights Agent, as the case may be, the registrar of
the Company and to each transfer agent of the Common Shares and Series A
Preferred Shares, by registered or certified mail, and subsequent to the
Distribution Date, to the holders of the Rights Certificates by first-class
mail. If the Rights Agent shall resign or be removed or shall otherwise become
incapable of acting, the Company shall appoint a successor to the Rights Agent.
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, 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) a
legal business entity organized and doing business under the laws of the United
States or any State thereof, in good standing, which is authorized under such
laws to exercise corporate trust or stock transfer powers and is subject to
supervision or examination by federal or state authority and which has at the
time of its appointment as Rights Agent a combined capital and surplus of at
least $25,000,000 or (b) an affiliate of a legal business entity described in
clause (a) of this sentence. After appointment, the successor Rights Agent
shall be vested with the same powers, rights, duties and responsibilities as if
it had been originally named as Rights Agent without further act or deed; but
the predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver
any further assurance, conveyance, act or deed necessary for the purpose. Not
later than the effective date of any such appointment, the Company shall file
notice thereof in writing with the predecessor Rights Agent the registrar of
the Company and each transfer agent of the Common Shares and the Series A
Preferred Shares, and, subsequent to the Distribution Date, mail a notice
thereof in writing to the registered holders of the Rights Certificates.
Failure to give any notice provided for in this Section 21, however, or any
defect therein, shall not affect the legality or validity of the resignation or
removal of the Rights Agent or the appointment of the successor Rights Agent,
as the case may be.
Section 22. Issuance of New Rights Certificates. Notwithstanding any
of the provisions of this Agreement or of the Rights to the contrary, the
Company may, at its option,
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<PAGE> 35
issue new Rights Certificates evidencing Rights in such form as may be approved
by its Board to reflect any adjustment or change in the Purchase Price and the
number or kind or class of shares or other securities or property issuable upon
exercise of the Rights made in accordance with the provisions of this
Agreement. In addition, in connection with the issuance or sale of Common
Shares following the Distribution Date and prior to the redemption or
expiration of the Rights, the Company (a) shall, with respect to Common Shares
so issued or sold pursuant to the exercise of share options or under any
employee plan or arrangement, granted or awarded as of the Distribution Date,
or upon the exercise, conversion or exchange of securities hereinafter issued
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 such issuance or sale;
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 23. Redemption and Termination.
(a) The Company may, at its option, at any time prior to the
earlier of (i) the close of business on the Share Acquisition Date, or (ii) the
Final Expiration Date, redeem all but not less than all the then outstanding
Rights at a redemption price of $.01 per Right, as such amount may be
appropriately adjusted to reflect any share subdivision or consolidation,
dividend of shares or similar transaction occurring after the date hereof (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 Section
11(a)(ii) Event until such time as the Company's right of redemption hereunder
has expired. The Company may, at its option, pay the Redemption Price in cash,
Common Shares (based on the Current Market Price, as defined in Section
11(d)(i) hereof, of the Common Shares at the time of redemption) or any other
form of consideration deemed appropriate by the Board.
(b) In deciding whether or not to exercise the Company's right
of redemption hereunder, the Board shall act in good faith, in a manner they
reasonably believe to be in the best interests of the Company and with such
care, including reasonable inquiry, skill and diligence, as a person of
ordinary prudence would use under similar circumstances, and they may consider
the long-term and short-term effects of any action upon employees, customers
and creditors of the Company and upon communities in which offices or other
establishments of the Company are located, and all other pertinent factors.
(c) 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 following such 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
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<PAGE> 36
registry books of the transfer agent for the Common Shares. Any notice which
is mailed in the manner herein provided shall be deemed given, whether or not
the holder receives the notice. Each such notice of redemption will state the
method by which the payment of the Redemption Price will be made.
(d) Notwithstanding the provisions of Section 23(a) hereof, in
the event that a majority of the Board is elected by shareholder action by
written consent, or is comprised of persons elected at a meeting of
shareholders who were not nominated by the Board in office immediately prior to
such meeting, then for a period of one hundred and eighty (180) days following
the effectiveness of such election the Rights shall not be redeemed if such
redemption is reasonably likely to have the purpose or effect of allowing any
Person to become an Acquiring Person or otherwise facilitating the occurrence
of a Triggering Event or a transaction with an Acquiring Person.
Section 24. Exchange. The Company may, at its option, at any time
after any Person becomes an Acquiring Person, exchange all or part of the then
outstanding and exercisable Rights (which shall not include Rights that have
become void pursuant to the provisions of Section 7(e) hereof) for Common
Shares at an exchange ratio of one Common Share per Right, appropriately
adjusted to reflect any share split, share dividend or similar transaction
occurring after the date hereof (such exchange ratio being hereinafter referred
to as the "Exchange Ratio"). Notwithstanding the foregoing, the Board shall
not be empowered to effect such exchange at any time after any person (other
than the Company, any Subsidiary of the Company, any employee benefit plan of
the Company or any such Subsidiary, or any entity holding Common Shares for or
pursuant to the terms of any such plan), together with all Affiliates and
Associates of such Person, becomes the Beneficial Owner of fifty percent (50%)
or more of the Common Shares then outstanding.
(b) Immediately upon the action of the Board ordering the
exchange of any Rights pursuant to subsection (a) of this Section 24 and
without any further action and without any notice, the right to exercise such
Rights shall terminate and the only right thereafter of a holder of such Rights
shall be to receive that number of Common Shares equal to the number of such
Rights held by such holder multiplied by the Exchange Ratio. The Company shall
promptly give public notice of any such exchange; provided, however that the
failure to give, or any defect in, such notice shall not affect the validity of
such exchange. The Company promptly shall mail a notice of any such exchange
to all of the holders of such Rights at their last addresses as they appear
upon the registry books of the Rights Agent. Any notice which is mailed in the
manner herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of exchange will state the method by
which the exchange of the Common Shares for Rights will be effected and, in the
event of any partial exchange, the number of Rights which will be exchanged.
Any partial exchange shall be effected pro rata based on the number of Rights
(other than Rights which have become void pursuant to the provisions of Section
7(e) hereof) held by each holder of Rights.
(c) In any exchange pursuant to this Section 24, the Company,
at its option, may substitute Series A Preferred Shares (or Equivalent
Preferred Shares, as such term is defined in paragraph (b) of Section 11
hereof) for Common Shares exchangeable for rights, at the initial rate of one
one-hundredth of a Series A Preferred Share (or Equivalent Preferred Shares)
for
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<PAGE> 37
each Common Share, as appropriately adjusted to reflect share splits, share
dividends and other similar transactions after the date hereof.
(d) In the event that there shall not be sufficient Common
Shares issued but not outstanding or authorized but unissued to permit any
exchange of Rights as contemplated in accordance with this Section 24, the
Company shall use its best efforts to authorize additional Common Shares for
issuance upon exchange of the Rights.
(e) The Company shall not be required to issue fractions of
Common Shares or to distribute certificates which evidence fractional Common
Shares. In lieu of such fractional Common Shares, there shall be paid to the
registered holders of the Rights Certificates with regard to which such
fractional Common Shares would otherwise be issuable, an amount in cash equal
to the same fraction of the current market value of a whole Common Share. For
the purposes of this subsection (e), the Current Market Value of a whole Common
Share shall be the closing price of a Common Share (as determined pursuant to
the second sentence of Section 11(d)(i) hereof) for the Trading Day immediately
prior to the date of exchange pursuant to this Section 24.
Section 25. Notice of Proposed Actions. In case the Company shall
propose, at any time after the Distribution Date, (i) to pay any dividend
payable in share of any class to the holders of Series A Preferred Shares or to
make any other distribution to the holders of Series A Preferred Shares (other
than a regular quarterly cash dividend out of earnings or retained earnings of
the Company), or (ii) to offer to the holders of Series A Preferred Shares
rights or warrants to subscribe for or to purchase any additional Series A
Preferred Shares or shares of any class or any other securities, rights or
options, or (iii) to effect any reclassification of its Series A Preferred
Shares (other than a reclassification involving only the subdivision of
outstanding Series A Preferred Shares), or (iv) to effect under any applicable
law any consolidation or amalgamation into or with any other Person (other than
a Subsidiary of the Company in a transaction which complies with Section 11(o)
hereof), or to effect and/or to permit one or more of its subsidiaries to
effect any sale or other transfer, in one transaction or a series of related
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
Persons (other than the Company and/or any of its Subsidiaries in one or more
transactions each of which complies with Section 11(o) hereof), or (v) 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, to
the extent feasible and in accordance with Section 26 hereof, a notice of such
proposed action, which shall specify the record date for the purposes of such
share dividend, distribution of rights or warrants, or the date on which such
reclassification, consolidation, amalgamation, sale, transfer, liquidation,
dissolution, or winding up is to take place and the date of participation
therein by the holders of the Series A Preferred Shares, if any such date is to
be fixed, and such notice shall be so given in the case of any action covered
by clause (i) or (ii) above at least twenty (20) days prior to the record date
for determining holders of the Series A Preferred Shares for purposes of such
action, and in the case of any such other action, at least twenty (20) days
prior to the date of the taking of such proposed action or the date of
participation therein by the holders of the Series A Preferred Shares,
whichever shall be the earlier. The failure to give notice required by this
Section or any defect therein shall not affect the legality or validity of the
action taken by the Company or the vote upon any such action.
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(b) Notwithstanding anything in this Agreement to the
contrary, prior to the Distribution Date a public filing by the
Company with the United States Securities and Exchange Commission
shall constitute sufficient notice to the holders of securities of the
Company, including the rights, for purposes of this Agreement and no
other notice need be given to such holders.
(c) If a Triggering Event shall occur, then, in any such case,
(i) the Company shall as soon as practicable thereafter give to each
holder of a Rights Certificate, to the extent feasible and in
accordance with Section 26 hereof, and to the Rights Agent, a notice
of the occurrence of such event, which shall specify the event and the
consequences of the event to holders of Rights under Section 11(a)(ii)
or 13, as the case may be, and (ii) all references in Section 25(a) to
Series A Preferred Shares shall be deemed thereafter to refer to
Common Shares and/or, if appropriate, other securities.
Section 26. Notice or Demands. 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) to the following registered office
of the Company or such other address as the Company shall specify in writing to
the Rights Agent:
Trenwick Group Ltd.
Continental Building
25 Church Street
Hamilton HM 12
Bermuda
Attention: Corporate Secretary
Subject to the provisions of Section 21, any notice or demand authorized by
this Agreement to be given or made by the Company or by the holder of any
Rights Certificate to or on the Rights Agent shall be sufficiently given or
made if sent by first-class mail (postage prepaid) to the following address or
such other address as the Rights Agent shall specify in writing to the Company
(until another address is filed in writing with the Company) as follows:
First Chicago Trust Company of New York
525 Washington Boulevard, Suite 4660
Jersey City, New Jersey 07310
Attention: Tenders and Exchange Administration
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Rights Certificate (or, if
prior to the Distribution Date, to the holder of certificates representing
Common Shares) shall be sufficiently given or made if sent by first-class mail
(postage prepaid) to the address of such holder shown on the share register of
the Company.
Section 27. Supplements, Deletions and Amendments. Prior to the
Distribution Date, the Company and the Rights Agent shall, if the Company so
directs, supplement, remove or amend any provision of this Agreement without
the approval of any holders of certificates
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<PAGE> 39
representing Common Shares. From and after the Distribution Date, the Company
and the Rights Agent shall, if the Company so directs, supplement, remove or
amend this Agreement without the approval of any holders of Rights Certificates
in order (i) to cure any ambiguity, (ii) to correct, remove or supplement any
provision contained herein which may be defective or inconsistent with any
other provisions herein, (iii) to shorten or lengthen any time period
hereunder, or (iv) to change, remove or supplement the provisions hereunder in
any manner which the Company may deem necessary or desirable and which, in the
opinion of the Company shall not adversely affect the interests of the holders
of Rights Certificates (other then an Acquiring Person or an Affiliate or
Associate of an Acquiring Person); provided that, from and after the
Distribution Date, this Agreement may not be supplemented or amended to
lengthen any time period hereunder, pursuant to clause (iii) of this sentence
unless such lengthening is for the purpose of protecting, enhancing or
clarifying the rights of, and/or the benefits to, the holders of Rights. Upon
the delivery of a certificate from an appropriate officer of the Company which
states that the proposed supplement or amendment is in compliance with the
terms of this Section 27, the Rights Agent shall execute such supplement or
amendment. Prior to the Distribution Date, the interests of the holders of
Rights shall be deemed coincident with the interests of the holders of Common
Shares. Notwithstanding anything contained herein to the contrary, this
Agreement may not be amended at a time when the rights are not redeemable.
Section 28. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Rights Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Section 29. Determinations and Actions by the Board, etc. For all
purposes of this Agreement, any calculation of the number of Common Shares
outstanding at any particular time, including for purposes of determining the
particular percentage of such outstanding of Common Shares of which any Person
is the Beneficial Owner, shall be made in accordance with the last sentence of
Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange
Act. The Board shall have the exclusive power and authority to administer this
Agreement and to exercise all rights and powers specifically granted to the
Board or to the Company, or as may be necessary or advisable in the
administration of this Agreement, including, without limitation, the right and
power to (i) interpret the provisions of this Agreement, and (ii) make all
determinations deemed necessary or advisable for the administration of this
Agreement (including a determination to redeem or not redeem the Rights or to
amend the Agreement). All such actions, calculations, interpretations and
determinations (including, for purposes of clause (y) below, all omissions with
respect to the foregoing) which are done or made by the Board in good faith,
shall (x) be final, conclusive and binding on the Company, the Rights Agent,
the holders of the Rights and all other parties, and (y) not subject the Board
to any liability to the holders of the Rights.
Section 30. 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, registered holders of the Common Shares) any legal or
equitable right, remedy or claim under this Agreement; but this Agreement shall
be for the sole and exclusive benefit of the Company, the Rights Agent and the
registered holders of the Rights Certificates (and, prior to the Distribution
Date, registered holders of the Common Shares).
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Section 31. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated;
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,
such and if the right of redemption set forth in Section 23 hereof shall at
that time not be capable of exercise pursuant to the terms thereof, right of
redemption shall be reinstated and shall not expire until the close of business
on the tenth day following the date of such determination by the Board.
Section 32. Governing Law. This Agreement, each Right and each Rights
Certificate issued hereunder shall be governed by and construed in accordance
with the laws of Bermuda, and the parties hereto consent to service and
jurisdiction in the courts of Bermuda with respect to any action arising out of
or relating to the Agreement, a Right or a Rights Certificate issued hereunder.
Section 33. Counterparts. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
one and the same instrument.
Section 34. Descriptive Headings. Descriptive headings of the several
Sections of this Agreement are included for convenience of reference only, do
not constitute part of this Agreement and shall be ignored in the construction
and interpretation of any of the provisions hereof.
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<PAGE> 41
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.
<TABLE>
<S> <C>
Attest: TRENWICK GROUP LTD.
By: /s/ John V. Del Col By: /s/ James F. Billett, Jr.
------------------------------------- -----------------------------------------
Name: John V. Del Col Name: James F. Billett, Jr.
Title: Assistant Secretary Title: Chairman, President and Chief
Executive Officer
Attest:
FIRST CHICAGO TRUST COMPANY OF
NEW YORK
By: /s/ Mark S. Gherzo By: /s/ Gerald J. O'Leary
------------------------------------- -----------------------------------------
Name: Mark S. Gherzo Name: Gerald J. O'Leary
Title: Managing Director Title: Managing Director
</TABLE>
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<PAGE> 42
Exhibit A
CERTIFICATE OF DESIGNATION; PREFERENCES AND
RIGHTS OF SERIES A FIRST PREFERENCE SHARES
OF
TRENWICK GROUP LTD.
$.10 PAR VALUE PER SHARE
Pursuant to Section 44 of the Bye-laws of Trenwick Group Ltd.
We, James F. Billett, Jr., Chairman of the Board, and John V. Del Col,
Corporate Secretary, of Trenwick Group Ltd., a company organized under the
Companies Act, 1981 of the Islands, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors
by the Bye-laws of the Company, the said Board of Directors on September 26,
2000, adopted the following resolution creating a series of Preferred Shares
designated as Series A First Preference Shares:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of this Company in accordance with the provisions of its Bye-laws, a
series of Preferred Shares of the Company be and it hereby is created, and that
the designation and amount thereof and the voting powers, preferences and
relative, participating, optional and other special rights of the shares of
such series, and the qualifications, limitations or restrictions thereof are as
follows:
Section 1. Designation and Amount. The shares of such series shall
be designated as "Series A First Preference Shares" and the number of shares
constituting such series shall be ____________.
Section 2. Dividends and Distributions.
(A) Holders of any Series A Preferred Shares shall be entitled
to receive, when, as and if declared by the Board of Directors out of funds
legally available for the purpose, quarterly dividends payable in cash on the
first business day of January, April, July and October of each year (each such
date being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the first
issuance of a share or fraction of a Series A Preferred Share, in an amount per
share (rounded to the nearest cent) equal to the greater of (a) $1.00 or (b)
subject to the provision for adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends, and 100 times the aggregate
per share amount (payable in kind) of all non-cash dividends or other
distributions other than a dividend payable in Common Shares or a subdivision
of the outstanding Common Shares (by reclassification or otherwise), declared
on the Common Shares, $.10 par value per share, of the Company (the "Common
Shares") since the immediately preceding Quarterly Dividend Payment Date, or,
with respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A First Preference
Shares. In the event the Company shall at any time after September 27, 2000
(the "Record Date") (i) declare any dividend on Common Shares payable in Common
Shares, (ii) subdivide the outstanding Common Shares, or (iii) combine the
outstanding Common Shares into a smaller number of shares, then in each such
case the amount to which holders of shares of Series A First Preference Shares
were entitled
A-1
<PAGE> 43
immediately prior to such event under clause (b) of the preceding sentence
shall be adjusted by multiplying such amount by a fraction the numerator of
which is the number of Common Shares outstanding immediately after such event
and the denominator of which is the number of Common Shares that were
outstanding immediately prior to such event.
(B) The Company shall declare a dividend or distribution on
the Series A First Preference Shares as provided in paragraph (A) above
immediately after it declares a dividend or distribution on the Common Shares
(other than a dividend payable in Common Shares); provided that, in the event
no dividend or distribution shall have been declared on the Common Shares
during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $1.00 per share on
the Series A First Preference Shares shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A First Preference Shares from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares of Series
A First Preference Shares, unless the date of issue of such shares is prior to
the record date for the first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the date of issue of such
shares, or unless the date of issue is a Quarterly Dividend Payment Date or is
a date after the record date for the determination of holders of shares of
Series A First Preference Shares entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A First Preference Shares in an amount less than
the total amount of such dividends at the time accrued and payable on such
shares shall be allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may fix a record date
for the determination of holders of shares of Series A First Preference Shares
entitled to receive payment of a dividend or distribution declared thereon,
which record date shall be no more than 30 days prior to the date fixed for the
payment thereof.
Section 3. Voting Rights. The holders of shares of Series A First
Preference Shares shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series A First Preference Shares shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of the shareholders of
the Company. In the event the Company shall at any time after the Record Date
(i) declare any dividend on Common Shares payable in Common Shares, (ii)
subdivide the outstanding Common Shares, or (iii) combine the outstanding
Common Shares into a smaller number of shares, then in each such case the
number of votes per share to which holders of shares of Series A First
Preference Shares were entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction the numerator of which is the
number of Common Shares outstanding immediately after such event and the
denominator of which is the number of Common Shares that were outstanding
immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders
of shares of Series A First Preference Shares and the holders of Common Shares
shall vote together as one class on all matters submitted to a vote of
shareholders of the Company.
A-2
<PAGE> 44
(C) (i) If at any time dividends on any Series A First
Preference Shares shall be in arrears in an amount equal to six (6) quarterly
dividends thereon, the occurrence of such contingency shall mark the beginning
of a period (herein called a "default period") which shall extend until such
time when all accrued and unpaid dividends for all previous quarterly dividend
periods and for the current quarterly dividend period on all shares of Series A
First Preference Shares then outstanding shall have been declared and paid or
set apart for payment. During each default period, all holders of Preferred
Shares (including holders of the Series A First Preference Shares) with
dividends in arrears in an amount equal to six (6) quarterly dividends thereon,
voting as a class, irrespective of series, shall have the right to elect two
(2) Directors.
(ii) During any default period, such voting right of
the holders of Series A First Preference Shares may be exercised
initially at a special meeting called pursuant to subparagraph
(iii) of this Section 3(C) or at any annual meeting of
shareholders, and thereafter at annual meetings of shareholders,
provided that such voting right shall not be exercised unless
the holders of ten percent (10%) in number of Preferred Shares
outstanding shall be present in person or by proxy. The absence
of a quorum of the holders of Common Shares shall not affect the
exercise by the holders of Preferred Shares of such voting
right. At any meeting at which the holders of Preferred Shares
shall exercise such voting right initially during an existing
default period, they shall have the right, voting as a class, to
elect Directors to fill such vacancies, if any, in the Board of
Directors as may then exist up to two (2) Directors or, if such
right is exercised at an annual meeting, to elect two (2)
Directors. If the number which may be so elected at any special
meeting does not amount to the required number, the holders of
the Preferred Shares shall have the right to make such increase
in the number of Directors as shall be necessary to permit the
election by them of the required number. After the holders of
the Preferred Shares shall have exercised their right to elect
Directors in any default period and during the continuance of
such period, the number of Directors shall not be increased or
decreased except by vote of the holders of Preferred Shares as
herein provided or pursuant to the rights of any equity
securities ranking senior to or pari passu with the Series A
First Preference Shares.
(iii) Unless the holders of Preferred Shares shall,
during an existing default period, have previously exercised
their right to elect Directors, the Board of Directors may
order, or any shareholder or shareholders owning in the
aggregate not less than ten percent (10%) of the total number of
Preferred Shares outstanding, irrespective of series, may
request, the calling of special meeting of the holders of
Preferred Shares, which meeting shall thereupon be called by the
President, a Vice-President or the Secretary of the Company.
Notice of such meeting and of any annual meeting at which
holders of Preferred Stock are entitled to vote pursuant to this
Paragraph (C)(iii) shall be given to each holder of record of
Preferred Shares by mailing a copy of such notice to him at his
last address as the same appears on the books of the Company.
Such meeting shall be called for a time not earlier than twenty
(20) days and not later than sixty (60) days after such order or
request or in default of the calling of such meeting within
A-3
<PAGE> 45
sixty (60) days after such order or request, such meeting may be
called on similar notice by any shareholder or shareholders
owning in the aggregate not less than ten percent (10)% of the
total number of Preferred Shares outstanding. Notwithstanding
the provisions of this Paragraph (C)(iii), no such special
meeting shall be called during the period within sixty (60) days
immediately preceding the date fixed for the next annual meeting
of the shareholders.
(iv) In any default period, the holders of Common
Shares, and other shares of the Company if applicable, shall
continue to be entitled to elect the whole number of Directors
until the holders of Preferred Shares shall have exercised their
right to elect two (2) Directors voting as a class, after the
exercise of which right (x) the Directors so elected by the
holders of Preferred Shares shall continue in office until their
successors shall have been elected by such holders or until the
expiration of the default period, and (y) any vacancy in the
Board of Directors may (except as provided in Paragraph (C)(ii)
of this Section 3) be filled by vote of a majority of the
remaining Directors theretofore elected by the holders of the
class of shares which elected the Director whose office shall
have become vacant. References in this Paragraph (C) to
Directors elected by the holders of a particular class of shares
shall include Directors elected by such Directors to fill
vacancies as provided in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a default period,
(x) the right of the holders of Preferred Shares as a class to
elect Directors shall cease, (y) the term of any Directors
elected by the holders of Preferred Shares as a class shall
terminate, and (z) the number of Directors shall be such number
as may be provided for in the certificate of incorporation or
by-laws irrespective of any increase made pursuant to the
provisions of Paragraph (C)(ii) of this Section 3 (such number
being subject, however, to change thereafter in any manner
provided by law or in the memorandum of association or
bye-laws). Any vacancies in the Board of Directors effected by
the provisions of clauses (y) and (z) in the preceding sentence
may be filled by a majority of the remaining Directors.
(D) Except as set forth herein, holders of Series A First Preference
Shares shall have no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote with holders of Common
Shares as set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A First Preference Shares as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid dividends
and distributions, whether or not declared, on shares of Series A First
Preference Shares outstanding shall have been paid in full, the Company shall
not
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for
consideration any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
A-4
<PAGE> 46
Series A First Preference Shares;
(ii) declare or pay dividends on or make any other
distributions on any shares ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with
the Series A First Preference Shares, except dividends paid
ratably on the Series A First Preference Shares and all such
parity shares on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such
shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up)
with the Series A First Preference Shares, provided that the
Company may at any time redeem, purchase or otherwise acquire
shares of any such parity stock in exchange for any shares of
the Company ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A First
Preference Shares;
(iv) purchase or otherwise acquire for consideration any
shares of Series A First Preference Shares, or any shares of
stock ranking on a parity with the Series A First Preference
Shares, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board of
Directors) to all holders of such shares upon such terms as the
Board of Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith
will result in fair and equitable treatment among the respective
series or classes.
(B) The Company shall not permit any subsidiary of the Company
to purchase or otherwise acquire for consideration any shares of the
Company unless the Company could, under paragraph (A) of this Section
4, purchase or otherwise acquire such shares at such time and in such
manner.
Section 5. Reacquired Shares. Any shares of Series A First
Preference Shares purchased or otherwise acquired by the Company in any manner
whatsoever shall be retired and canceled promptly after the acquisition
thereof. All such shares shall upon their cancellation become authorized but
unissued Preferred Shares and may be reissued as part of a new series of
Preferred Shares to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance set forth
herein.
Section 6. Liquidation, Dissolution or Winding Up. (A) Subject to
the prior and superior rights of holders of any shares of any series of
Preferred Shares ranking prior and superior to the shares of Series A First
Preference Shares with respect to liquidation, dissolution or winding up
rights, upon any liquidation (voluntary or otherwise), dissolution or winding
up of the Company, no distribution shall be made to the holders of shares
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A First Preference Shares unless, prior thereto, the
holders of shares of Series A First Preference Shares shall have received $100
per share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment
(the "Series A Liquidation Preference"). Following
A-5
<PAGE> 47
the payment of the full amount of the Series A Liquidation Preference, no
additional distributions shall be made to the holders of shares of Series A
First Preference Shares unless, prior thereto, the holders of Common Shares
shall have received an amount per share (the "Common Adjustment") equal to the
quotient obtained by dividing (i) the Series A Liquidation Preference by (ii)
100 (as appropriately adjusted as set forth in sub paragraph (C) below to
reflect such events as share splits, share dividends and recapitalizations with
respect to the Common Shares) (such number in clause (ii), the "Adjustment
Number"). Following the payment of the full amount of the Series A Liquidation
Preference and the Common Adjustment in respect of all outstanding shares of
Series A First Preference Shares and Common Shares, respectively, holders of
Series A First Preference Shares and holders of Common Shares shall receive
their ratable and proportionate share of the remaining assets to be distributed
in the ratio of the Adjustment Number to 1 with respect to such Preferred
Shares and Common Shares, on a per share basis, respectively.
(B) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference and
the liquidation preferences of all other series of preferred shares, if any,
which rank on a parity with the Series A First Preference Shares, then such
remaining assets shall be distributed ratably to the holders of such parity
shares in proportion to their respective liquidation preferences. In the
event, however, that there are not sufficient assets available to permit
payment in full of the Common Adjustment, then such remaining assets shall be
distributed ratably to the holders of Common Shares.
(C) In the event the Company shall at any time after the
Record Date (i) declare any dividend on Common Shares payable in Common Shares,
(ii) subdivide the outstanding Common Shares, or (iii) combine the outstanding
Common Shares into a smaller number of shares, then in each such case the
Adjustment Number in effect immediately prior to such event shall be adjusted
by multiplying such Adjustment Number by a fraction the numerator of which is
the number of Common Shares outstanding immediately after such event and the
denominator of which is the number of Common Shares that were outstanding
immediately prior to such event.
Section 7. Consolidation, Amalgamation, etc. In case the Company
shall enter into any consolidation, amalgamation, combination or other
transaction in which the Common Shares are exchanged for or changed into other
shares or securities, cash and/or any other property, then in any such case the
Series A First Preference Shares shall at the same time be similarly exchanged
or changed in an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each Common Share is changed or exchanged. In the
event the Company shall at any time after the Record Date (i) declare any
dividend on Common Shares payable in Common Shares, (ii) subdivide the
outstanding Common Shares, or (iii) combine the outstanding Common Shares into
a smaller number of shares, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of Series A First
Preference Shares shall be adjusted by multiplying such amount by a fraction
the numerator of which is the number of Common Shares outstanding immediately
after such event and the denominator of which is the number of Common Shares
that were outstanding immediately prior to such event.
A-6
<PAGE> 48
Section 8. No Redemption. The shares of Series A First Preference
Shares shall not be redeemable.
Section 9. Ranking. The Series A First Preference Shares shall rank
junior to all other series of the Company's Preferred Shares as to the payment
of dividends and the distribution of assets, unless the terms of any such
series shall provide otherwise.
Section 10. Amendment. The Bye-laws of the Company shall not be
amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series A First Preference Shares so as to
affect them adversely without the affirmative vote of the holders of a majority
or more of the outstanding shares of Series A First Preference Shares, voting
separately as a class.
Section 11. Fractional Shares. Series A First Preference Shares may
be issued in fractions of a share which shall entitle the holder, in proportion
to such holders fractional shares, to exercise voting rights, receive
dividends, participate in distributions and to have the benefit of all other
rights of holders of Series A First Preference Shares.
A-7
<PAGE> 49
IN WITNESS WHEREOF, we have executed and subscribed this Extract from
the Minutes of the Meeting of the Board of Directors of Trenwick Group Ltd.
creating the Series A First Preference Shares and do affirm the foregoing as
true under the penalties of perjury this 27th day of September, 2000.
TRENWICK GROUP LTD.
By:
--------------------------------------
Name: James F. Billett, Jr.
Title: Chairman, President and Chief
Executive Officer
Attest:
John V. Del Col
Assistant Secretary
A-8
<PAGE> 50
Exhibit B
[Form of Rights Certificate]
Certificate No. R- ________Preferred Share Purchase Rights
NOT EXERCISABLE AFTER THE EARLIER OF SEPTEMBER 27, 2010 AND THE DATE ON WHICH
THE RIGHTS EVIDENCED HEREBY ARE REDEEMED BY THE COMPANY AS SET FORTH IN THE
RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN
ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT) AND ANY
SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS
REPRESENTED BY THIS RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A
PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN
ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT).
ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY
BECOME NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE
RIGHTS AGREEMENT.](1)
Rights Certificate
TRENWICK GROUP LTD.
This certifies that ________________ or registered assigns, is the
registered owner of the number of Rights set forth above, each of which
entitles the owner thereof, subject to the terms, provisions and conditions of
the Rights Agreement, dated as of September 27, 2000 (the "Rights Agreement"),
between Trenwick Group Ltd., a company organized under the laws of Bermuda (the
"Company"), and First Chicago Trust Company of New York, a New York corporation
(the "Rights Agent"), to purchase from the Company at any time prior to 5:00
P.M. (New York City time) on September 27, 2010 at the office or offices of
the Rights Agent designated for such purpose, or its successors as Rights
Agent, one one-hundredth of a fully paid, non-assessable share of Series A
First Preference Shares (the "Series A Preferred Shares") of the Company, at a
purchase price of $85.00 per one one-hundredth of a share (the "Purchase
Price"), upon presentation and surrender of this Rights Certificate with the
Form of Election to Purchase and related Certificate 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 September
27, 2000, based on the Series A Preferred Shares 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 Series A Preferred Shares will
be issued.
Upon the occurrence of a Section 11(a)(ii) Event (as such term is
defined in the Rights Agreement), if the Rights evidenced by this Rights
Certificate are beneficially owned by (i) an Acquiring Person or an Affiliate
or Associate of any such Acquiring Person (as such terms are
-----------------------------
(1) The portion of the legend in brackets shall be inserted only if
applicable and shall replace the preceding sentence.
B-1
<PAGE> 51
defined in the Rights Agreement), (ii) a transferee of any such Acquiring
Person, Associate or Affiliate, or (iii) under certain circumstances specified
in the Rights Agreement, a transferee of a person who, after such transfer,
became an Acquiring Person, or an Affiliate or Associate of an Acquiring
Person, such Rights shall become null and void and no holder hereof shall have
any right with respect to such Rights from and after the occurrence of such
Section 11(a)(ii) Event.
As provided in the Rights Agreement, the Purchase Price and the number
and kind of Series A Preferred Shares or other securities, 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, including Triggering 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, which
limitations of rights include the temporary suspension of the exercisability of
such Rights under the specific circumstances set forth in the Rights Agreement.
Copies of the Rights Agreement are on file at the above-mentioned office of the
Rights Agent and are also available upon written request to the Rights Agent.
B-2
<PAGE> 52
This Rights Certificate, with or without other Rights Certificates,
upon surrender at the principal office or offices of the Rights Agent
designated for such purpose, 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 one one-hundredths of a share of
Series A Preferred Shares 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 in part, the holder shall be
entitled to receive upon surrender hereof another Rights Certificate or Rights
Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate may be redeemed by the Company at its option at a
redemption price of $.01 per Right at any time prior to the earlier of the
close of business on (i) the tenth day following the Share Acquisition Date (as
such time period may be extended pursuant to the Rights Agreement), and (ii)
the Final Expiration Date. The foregoing notwithstanding, the Rights generally
may not be redeemed for one hundred eighty (180) days following a change in a
majority of the Board as a result of a proxy contest.
No fractional Series A Preferred Shares will be issued upon the
exercise of any Right or Rights evidenced hereby (other than, except that the
possible requirement that prior to the occurrence of a Triggering Event only
whole Series A Preferred Shares be issued, fractions which are integral
multiples of one one-hundredth of a Series A Preferred Share, which may, at the
election of the Company, be evidenced by depositary receipts), but in lieu
thereof a cash payment will be made, as provided in the Rights Agreement. No
holder of this Rights Certificate shall be entitled to vote or receive
dividends or be deemed for any purpose the holder of Series A Preferred Shares
or of any other securities of the Company which may at any time be issuable on
the exercise hereof, nor shall anything contained in the Rights Agreement or
herein be construed to confer upon the holder hereof, as such, any of the
rights of a shareholder of the Company or any right to vote for the election of
directors or upon any matter submitted to shareholders at any meeting thereof,
or to give or withhold consent to any corporate action, or, to receive notice
of meetings or other actions affecting shareholders (except as provided in the
Rights Agreement), or to receive dividends or subscription rights, or
otherwise, until the Right or Rights evidenced by this 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.
B-3
<PAGE> 53
WITNESS the facsimile signature of the proper officers of the Company
and its corporate seal.
Dated as of ____________, 20__
ATTEST: TRENWICK GROUP LTD.
By:
---------------------------
Title:
Secretary
Countersigned:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
By:
------------------------------
Authorized Signature
B-4
<PAGE> 54
[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______________________________________ hereby sells, assigns
and transfers unto_____________________________________________________________
(Please print name and address of transferee)
this Rights Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint ____________ Attorney, to
transfer the within Rights Certificate on the books of the within-named
Company, with full power of substitution.
Dated:____________, 20__
------------------------------
Signature
Signature Guaranteed:
B-5
<PAGE> 55
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) this Rights Certificate [ ] is [ ] is not being sold, assigned and
transferred by or on behalf of a Person who is or was an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person (as such terms are defined
pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate
from any Person who is, was or subsequently became an Acquiring Person or an
Affiliate or Associate of an Acquiring Person.
Dated:____________, 20__
----------------------------
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment and Certificate 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.
B-6
<PAGE> 56
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise Rights represented by the
Rights Certificate.)
To: TRENWICK GROUP LTD.:
The undersigned hereby irrevocably elects to exercise ______ Rights
represented by this Rights Certificate to purchase the Series A Preferred
Shares issuable upon the exercise of the Rights (or such other securities of
the Company or of any other person which may be issuable upon the exercise of
the Rights) and requests that certificates for such shares be issued in the
name of and delivered to:
Please insert social security or other identifying number _____________________
(Please print name and address)
If such number of Rights shall not be all the Rights evidenced by this
Rights Certificate a new Rights Certificate for the balance of such Rights
shall be registered in the name of and delivered to:
Please insert social security or other identifying number _____________________
(Please print name and address)
Dated: ____________, 20__
------------------------
Signature
Signature Guaranteed:
B-7
<PAGE> 57
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) the Rights evidenced by this Rights Certificate [ ] are [ ] are
not being exercised by or on behalf of a Person who is or was an Acquiring
Person or an Affiliate or Associate of any such Acquiring Person (as such terms
are defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate
from any Person who is, was or became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated: ____________, 20__
---------------------------
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Election to Purchase and Certificate 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.
B-8
<PAGE> 58
Exhibit C
SUMMARY OF RIGHTS TO
PURCHASE SERIES A PREFERRED SHARES
On September 26, 2000 the Board of Directors of Trenwick Group Ltd.
(the "Company") approved the Rights Agreement and authorized and declared a
dividend distribution of one Right for each Common Share, $.10 par value per
share, of the Company to be issued at the close of business on September 27,
2000 (the "Record Date"). Each Right entitles the registered holder to
purchase from the Company one one-hundredth of a share of Series A First
Preference Shares, par value $.10 per share (the "Preferred Shares"), at a
Purchase Price of $85.00, subject to adjustment. The description and terms of
the Rights are set forth in a Rights Agreement (the "Rights Agreement") between
the Company and First Chicago Trust Company of New York, as Rights Agent.
Initially, the Rights will be attached to all Common Share
certificates representing shares then outstanding, and no separate Rights
Certificates will be distributed. The Rights will separate from the Common
Shares and a Distribution Date will occur upon the earlier of (i) ten (10) days
following a public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") has acquired, or obtained the right
to acquire, beneficial ownership of fifteen percent (15%) or more of the
outstanding Common Shares (the "Share Acquisition Date"), other than as a
result of repurchases of shares by the Company or certain inadvertent actions
by institutional or certain other shareholders, or (ii) ten (10) business days
(or such later date as the Board shall determine) following the commencement of
a tender offer or exchange offer that would result in a person or group
beneficially owning fifteen percent (15%) or more of such outstanding Common
Shares. Until the Distribution Date, (i) the Rights will be evidenced by the
Common Share certificates and will be transferred with and only with such
Common Share certificates, (ii) new Common Share certificates issued after the
Record Date will contain a notation incorporating the Rights Agreement by
reference and (iii) the surrender for transfer of any certificates for Common
Shares outstanding will also constitute the transfer of the Rights associated
with the Common Shares represented by such certificate. Pursuant to the Rights
Agreement, the Company reserves the right to require prior to the occurrence of
a Triggering Event (as defined below) that, upon any exercise of Rights, a
number of Rights be exercised so that only whole Preferred shares will be
issued.
The Rights are not exercisable until the Distribution Date and will
expire at the close of business on September 27, 2010, unless earlier redeemed
by the Company as described below.
As soon as practicable after the Distribution Date, Rights
Certificates will be mailed to holders of record of the Common Shares as of the
close of business on the Distribution Date and, thereafter, the separate Rights
Certificates alone will represent the Rights. Except as otherwise determined
by the Board, only Common Shares issued prior to the Distribution Date will be
issued with Rights.
In the event that a Person becomes an Acquiring Person (except
pursuant to an offer for all outstanding Common Shares which the independent
directors determine not to be inadequate to and otherwise in the best interests
of the Company and its shareholders), each holder of a
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Right will thereafter have the right to receive, upon exercise, Common Shares
(or, in certain circumstances, cash, property or other securities of the
Company) having a value equal to two times the exercise price of the Right.
Notwithstanding any of the foregoing, following the occurrence of the event set
forth in this paragraph, all Rights that are, or (under certain circumstances
specified in the Rights Agreement) were, beneficially owned by any Acquiring
Person will be null and void. However, Rights are not exercisable following
the occurrence of the event set forth above until such time as the Rights are
no longer redeemable by the Company as set forth below.
For example, at an exercise price of $85.00 per Right, each Right not
owned by an Acquiring Person (or by certain related parties) following an event
set forth in the preceding paragraph would entitle its holder to purchase
$170.00 worth of Common Shares (or other consideration, as noted above) for
$85.00. Assuming that the Common Shares had a per share value of $18.50 at
such time, the holder of each valid Right would be entitled to purchase
approximately 9.2 Common Shares for $85.00.
In the event that, at any time following the Share Acquisition Date,
(i) the Company is acquired in a consolidation, amalgamation or other business
combination transaction in which the Company is not the surviving corporation
(other than a consolidation, amalgamation or combination which follows an offer
described in the second preceding paragraph), or (ii) fifty percent (50%) or
more of the Company's assets or earning power is sold or transferred, each
holder of a Right (except Rights which previously have been voided as set forth
above) shall thereafter have the right to receive, upon exercise, common shares
of the acquiring company having a value equal to two times the exercise price
of the Right. The events set forth in this paragraph and in the second
preceding paragraph are referred to as the "Triggering Events."
At any time after a person becomes an Acquiring Person and prior to
the acquisition by such person or group of fifty percent (50%) or more of the
outstanding Common Shares, the Board may exchange the Rights (other than Rights
owned by such person or group which have become void), in whole or in part, at
an exchange ratio of one Common Share, or one one-hundredth of a Preferred
Share (or of a share of a class of series of the Company's preferred shares
having equivalent rights, preferences and privileges), per Right (subject to
adjustment).
Generally, at any time until ten (10) days following the Share
Acquisition Date, the Company may redeem the Rights in whole, but not in part,
at a price of $.01 per Right (payable in cash, Common Shares or other
consideration deemed appropriate by the Board). Immediately upon the action of
the Board ordering redemption of the Rights, the Rights will terminate and the
only right of the holders of Rights will be to receive the $.01 redemption
price. The foregoing notwithstanding, the Rights generally may not be redeemed
for one hundred eighty (180) days following a change in a majority of the Board
as a result of a proxy contest.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of the Company, including, without limitation, the
right to vote or to receive dividends. While the distribution of the Rights
will not be taxable to shareholders or to the Company, shareholders may,
depending upon the circumstances, recognize taxable income in the event that
the Rights become exercisable for Common Shares (or other consideration) of the
Company or for common shares of the acquiring company as set forth above.
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<PAGE> 60
Any of the provisions of the Rights Agreement may be amended by the
Board prior to the Distribution Date. After the Distribution Date, the
provisions of the Rights Agreement may be amended by the Board in order to cure
any ambiguity, to make changes which do not adversely affect the interests of
holders of Rights, or to shorten or lengthen any time period under the Rights
Agreement; provided, however that no amendment may be made at such time as the
Rights are not redeemable.
A copy of the Rights Agreement has been filed with the Securities and
Exchange Commission as an Exhibit to the Company's Registration Statement on
Form 8-A. A copy of the Rights Agreement is available free of charge from the
Company. This summary description of the Rights does not purport to be
complete and is qualified in its entirety by reference to the Rights Agreement,
which is incorporated herein by reference.
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