THIS CONFORMING PAPER FORMAT DOCUMENT IS BEING SUBMITTED PURSUANT
TO RULE 901(d) OF REGULATION S-T.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
BERGEN BRUNSWIG CORPORATION
(Exact name of registrant as specified in its charter)
New Jersey 22-1444512
(State of Incorporation or Organization) (IRS Employer
Identification No.)
4000 Metropolitan Drive, Orange, California 92668-3510
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
Preferred Share Purchase Rights New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of Class)
Exhibit Index is on Page 8
Page 1 of 138 Pages
Item 1. Description of Securities To Be Registered.
On February 8, 1994 (the "Rights Dividend Declaration
Date"), the Board of Directors of Bergen Brunswig Corporation
(the "Company") declared a dividend distribution of one Right for
each outstanding share of Class A Common Stock, par value $1.50
per share (the "Class A Common Stock"), of the Company and 9.5285
Rights for each outstanding share of Class B Common Stock, par
value $1.50 per share (the "Class B Common Stock" and,
collectively, with the Class A Common Stock the "Common Stock"),
of the Company, to stockholders of record at the close of
business on February 18, 1994. Each Right entitles the
registered holder to purchase from the Company a unit (a "Unit")
consisting of one one-hundredth of a share of Series A Junior
Participating Preferred Stock, without par value (the "Preferred
Stock"), at a Purchase Price of $80.00 per Unit, subject to
adjustment. The description and terms of the Rights are set
forth in a Rights Agreement, dated as of February 8 , 1994 (the
"Rights Agreement"), between the Company and Chemical Trust
Company of California, as Rights Agent.
Initially, the Rights will be attached to all Common
Stock certificates representing shares then outstanding, and no
separate Rights Certificates will be distributed. The Rights
will separate from the Common Stock and a Distribution Date will
occur upon the earlier of (i) 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 15% or more of the
outstanding shares of Class A Common Stock (the "Stock
Acquisition Date"), or (ii) 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 15% or more of such outstanding shares
of Class A Common Stock. Until the Distribution Date, (i) the
Rights will be evidenced by the Common Stock certificates and
will be transferred with and only with such Common Stock
certificates, (ii) new Common Stock certificates issued after
February 18, 1994 will contain a notation incorporating the
Rights Agreement by reference and (iii) the surrender for
transfer of any certificates for Common Stock outstanding will
also constitute the transfer of the Rights associated with the
Common Stock 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 shares of Preferred Stock will be issued.
The Rights are not exercisable until the Distribution
Date and will expire at the close of business on February 18,
2004, unless earlier redeemed by the Company as described below.
2
As soon as practicable after the Distribution Date,
Rights Certificates will be mailed to holders of record of the
Common Stock 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 of Directors, only shares of Common Stock issued prior to
the Distribution Date will be issued with Rights.
In the event that, at any time following the Rights
Dividend Declaration Date, (i) the Company is the surviving
corporation in a merger with an Acquiring Person and its Common
Stock is not changed or exchanged, (ii) a Person becomes the
beneficial owner of more than 15% of the then outstanding shares
of Class A Common Stock (unless such transaction is approved by
the Board or such person is excepted by the Board, in either case
before such person acquires beneficial ownership of more than 15%
of the outstanding Class A Common Stock), (iii) an Acquiring
Person engages in one or more "self-dealing" transactions as set
forth in the Rights Agreement, or (iv) during such time as there
is an Acquiring Person, an event occurs which results in such
Acquiring Person's ownership interest being increased by more
than 1% (e.g., a reverse stock split), each holder of a Right
will thereafter have the right to receive, upon exercise, Class A
Common Stock (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 any of the events set
forth in this paragraph (the "Flip-In Events"), 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 any of the Flip-In Events until such time as
the Rights are no longer redeemable by the Company as set forth
below.
For example, at an exercise price of $80 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 $160 worth of
Class A Common Stock (or other consideration, as noted above) for
$80. Assuming that the Class A Common Stock had a per share
value of $20 at such time, the holder of each valid Right would
be entitled to purchase 8 shares of Class A Common Stock for $80.
In the event that, at any time following the Stock
Acquisition Date, (i) the Company is acquired in a merger or
other business combination transaction in which the Company is
not the surviving corporation (other than following a permitted
transaction as described in the second preceding paragraph), or
(ii) 50% or more of the Company's assets or earning power is sold
or transferred, each holder of a Right (except Rights which
3
previously have been voided as set forth above) shall thereafter
have the right to receive, upon exercise, common stock 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."
The Purchase Price payable, and the number of Units of
Preferred Stock or other securities or property issuable, upon
exercise of the Rights are subject to adjustment from time to
time to prevent dilution (i) in the event of a stock dividend on,
or a subdivision, combination or reclassification of, the
Preferred Stock, (ii) if holders of the Preferred Stock are
granted certain rights or warrants to subscribe for Preferred
Stock or convertible securities at less than the current market
price of the Preferred Stock, or (iii) upon the distribution to
holders of the Preferred Stock of evidences of indebtedness or
assets (excluding regular quarterly cash dividends) or of
subscription rights or warrants (other than those referred to
above).
With certain exceptions, no adjustment in the Purchase
Price will be required until cumulative adjustments amount to at
least 1% of the Purchase Price. No fractional Units will be
issued and, in lieu thereof, an adjustment in cash will be made
based on the market price of the Preferred Stock on the last
trading date prior to the date of exercise.
At any time after the occurrence of any of the Flip-In
Events, the Board of Directors of the Company may exchange the
Rights (other than Rights owned by an Acquiring Person which will
become void as described above), in whole or in part, for shares
of Class A Common Stock or shares of preferred stock of the
Company having essentially the same value or economic rights as
shares of Class A Common Stock, at an exchange ratio of one share
of Class A Common Stock per Right, subject to antidilution
adjustments.
At any time until ten days following the Stock
Acquisition Date, the Company may redeem the Rights in whole, but
not in part, at a price of $.01 per Right (payable in cash, Class
A Common Stock or other consideration deemed appropriate by the
Board of Directors). Under certain circumstances set forth in
the Rights Agreement, the decision to redeem shall require the
concurrence of a majority of the Continuing Directors. After the
redemption period has expired, the Company's right of redemption
may be reinstated if an Acquiring Person reduces his beneficial
ownership to 15% or less of the outstanding shares of Class A
Common Stock in a transaction or series of transactions not
involving the Company. Immediately upon the action of the Board
of Directors ordering redemption of the Rights, with, where
required, the concurrence of the Continuing Directors, the Rights
4
will terminate and the only right of the holders of Rights will
be to receive the $.01 redemption price.
The term "Continuing Directors" means any member of the
Board of Directors of the Company who was a member of the Board
prior to the date of the Rights Agreement, and any person who is
subsequently elected to the Board if such person is recommended
or approved by a majority of the Continuing Directors, but shall
not include an Acquiring Person, or an affiliate or associate of
an Acquiring Person, or any representative of the foregoing
entities.
Until a Right is exercised, the holder thereof, as
such, will have no rights as a stockholder 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 stockholders or to the Company, stockholders may,
depending upon the circumstances, recognize taxable income in the
event that the Rights become exercisable for Class A Common Stock
(or other consideration) of the Company or for common stock of
the acquiring company as set forth above.
Other than those provisions relating to the principal
economic terms of the Rights, any of the provisions of the Rights
Agreement may be amended by the Board of Directors of the Company
prior to the Distribution Date. After the Distribution Date, the
provisions of the Rights Agreement may be amended by the Board
(in certain circumstances, with the concurrence of the Continuing
Directors) in order to cure any ambiguity, to make changes which
do not adversely affect the interests of holders of Rights
(excluding the interests of any Acquiring Person), or to shorten
or lengthen any time period under the Rights Agreement; provided,
however, that no amendment to adjust the time period governing
redemption shall be made at such time as the Rights are not
redeemable.
The Rights have certain anti-takeover effects. The
Rights will cause substantial dilution to a person or group that
attempts to acquire the Company on terms not approved by the
Company's Board of Directors, except pursuant to an offer
conditioned on a substantial number of Rights being acquired.
The Rights should not interfere with any merger or other business
combination approved by the Board of Directors since the Rights
may be redeemed by the Company at the Redemption Price prior to
the time that a person or group has acquired beneficial ownership
of 15% or more of the outstanding shares of Class A Common Stock.
The Rights Agreement, dated as of February 8, 1994,
between the Company and Chemical Trust Company of California, as
Rights Agent, specifying the terms of the Rights and including
the form of the Certificate of Amendment of the Company's
Restated Certificate of Incorporation setting forth the terms of
5
the Preferred Stock as an exhibit thereto, the press release
announcing the declaration of the Rights and a form of letter to
the Company's shareholders describing the Rights are attached
hereto as exhibits and are incorporated herein by reference. The
foregoing description of the Rights is qualified in its entirety
by reference to such exhibits.
Item 2. Exhibits
1 Rights Agreement, dated as of February 8, 1994,
between Bergen Brunswig Corporation and Chemical
Trust Company of California, as Rights Agent,
including the form of Certificate of Amendment of
the Company's Restated Certificate of
Incorporation setting forth the terms of the
Series A Junior Participating Preferred Stock,
without par value, as Exhibit A, the form of
Rights Certificate as Exhibit B and the Summary of
Rights to Purchase Preferred Shares as Exhibit C.
Pursuant to the Rights Agreement, printed Rights
Certificates will not be mailed until after the
Distribution Date (as such term is defined in the
Rights Agreement).
2 Press Release of the Company dated February 8,
1994.
3 Form of letter to the Company's shareholders
describing the Rights.
6
SIGNATURE
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, the Registrant has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized.
Dated: February 14, 1994 BERGEN BRUNSWIG CORPORATION
By: Milan A. Sawdei
Name: Milan A. Sawdei
Title: Executive Vice
President, Chief
Legal Officer and
Secretary
7
EXHIBIT INDEX
Exhibit Description Page
1 Rights Agreement, dated as of February 8, 1994, 9
between Bergen Brunswig Corporation and Chemical
Trust Company of California, as Rights Agent,
including the form of Certificate of Amendment of
the Company's Restated Certificate of
Incorporation setting forth the terms of the
Series A Junior Participating Preferred Stock,
without par value, as Exhibit A, the form of
Rights Certificate, as Exhibit B, and the Summary
of Rights to Purchase Preferred Shares as
Exhibit C. Pursuant to the Rights Agreement,
printed Rights Certificates will not be mailed
until after the Distribution Date (as such term is
defined in the Rights Agreement).
2 Press Release of the Company dated February 8, 137
1994.
3 Form of letter to the Company's shareholders 138
describing the Rights.
8
BERGEN BRUNSWIG CORPORATION
and
CHEMICAL TRUST COMPANY OF CALIFORNIA
Rights Agent
Rights Agreement
Dated as of February 8, 1994
Table of Contents
Section Page
1. Certain Definitions . . . . . . . . . . . . 2
2. Appointment of Rights Agent . . . . . . . . 10
3. Issue of Rights Certificates . . . . . . . 10
4. Form of Rights Certificates . . . . . . . . 14
5. Countersignature and Registration . . . . . 17
6. Transfer, Split Up, Combination and
Exchange of Rights Certificates;
Mutilated, Destroyed, Lost or Stolen
Rights Certificates . . . . . . . . . . . 18
7. Exercise of Rights; Purchase Price;
Expiration Date of Rights . . . . . . . . 20
8. Cancellation and Destruction of Rights
Certificates . . . . . . . . . . . . . . . 26
9. Reservation and Availability of Capital
Stock . . . . . . . . . . . . . . . . . . 27
10. Preferred Stock Record Date . . . . . . . 31
11. Adjustment of Purchase Price, Number and
Kind of Shares or Number of Rights . . . . 32
12. Certificate of Adjusted Purchase Price or
Number of Shares . . . . . . . . . . . . . 59
13. Consolidation, Merger or Sale or Transfer
of Assets or Earning Power . . . . . . . . 59
14. Fractional Rights and Fractional Shares . 65
15. Rights of Action . . . . . . . . . . . . . 69
16. Agreement of Rights Holders . . . . . . . 70
i
17. Rights Certificate Holder Not Deemed a
Stockholder . . . . . . . . . . . . . . . 72
18. Concerning the Rights Agent . . . . . . . 72
19. Merger or Consolidation or Change of Name
of Rights Agent . . . . . . . . . . . . . 74
20. Duties of Rights Agent . . . . . . . . . . 75
21. Change of Rights Agent . . . . . . . . . . 80
22. Issuance of New Rights Certificates . . . 83
23. Redemption and Termination . . . . . . . . 84
24. Exchange . . . . . . . . . . . . . . . . . 87
25. Notice of Certain Events . . . . . . . . . 90
26. Notices . . . . . . . . . . . . . . . . . 93
27. Supplements and Amendments . . . . . . . . 94
28. Successors . . . . . . . . . . . . . . . . 96
26. Determinations and Actions by the Board of
Directors, etc. . . . . . . . . . . . . . 96
30. Benefits of this Agreement . . . . . . . 97
31. Severability . . . . . . . . . . . . . . . 98
32. Governing Law . . . . . . . . . . . . . . 99
33. Counterparts . . . . . . . . . . . . . . . 99
34. Descriptive Headings . . . . . . . . . . . 99
Exhibit A -- Certificate of Amendment
Exhibit B -- Form of Rights Certificate
Exhibit C -- Form of Summary of Rights
ii
RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of February 8, 1994
(the "Agreement"), between Bergen Brunswig Corporation, a
New Jersey corporation (the "Company"), and Chemical
Trust Company of California, a California banking
corporation (the "Rights Agent").
W I T N E S S E T H
WHEREAS, on February 8, 1994 (the "Rights
Dividend Declaration Date"), the Board of Directors of
the Company authorized and declared a dividend
distribution of one Right for each share of Class A
Common Stock, par value $1.50 per share, of the Company
(the "Class A Common Stock") and 9.5285 Rights for each
share of Class B Common Stock, par value $1.50 per share,
of the Company (the "Class B Common Stock", and,
collectively with the Class A Common Stock, the "Common
Stock") outstanding at the close of business on February
18, 1994 (the "Record Date"), and has authorized the
issuance of one Right for each share of Class A Common
Stock, and 9.5285 Rights for each share of Class B Common
Stock (as such numbers may hereinafter be adjusted
pursuant to the provisions of Section 11(p) hereof), of
the Company issued between the Record Date (whether
originally issued or delivered from the Company's
treasury) and the Distribution Date each Right initially
representing the right to purchase one one-hundredth of a
share of Series A Junior Participating Preferred Stock of
the Company having the rights, powers and preferences set
forth in the form of Certificate of Amendment attached
hereto as Exhibit A, upon the terms and subject to the
conditions hereinafter set forth (the "Rights");
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 15% or more of the shares of Class A Common Stock then
outstanding, but shall not include (i) the Company, any
Subsidiary of the Company, 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
or (ii) any Person, together with all Affiliates and
2
Associates of such Person, who or which would otherwise
be an Acquiring Person by reason of (x) being the
Beneficial Owner of shares of Class A Common Stock, the
beneficial ownership of which was acquired by such person
(or a predecessor of such Person) (I) upon conversion of
shares of Class B Common Stock or (II) pursuant to a
transaction or series of related transactions approved by
the Board of Directors before such Person (or a
predecessor of such Person) otherwise became an Acquiring
Person or (y) any other action or transaction which the
Board of Directors determines should not, consistent with
the purposes of this Agreement, cause such Person (or a
predecessor of such Person) to be deemed an Acquiring
Person, which determination is made by the Board of
Directors prior to such Person (or a predecessor of such
Person) otherwise becoming an Acquiring Person.
(b) "Affiliate" and "Associate" shall
have the respective meanings ascribed to such terms in
Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended and in effect
on the date of this Agreement (the "Exchange Act").
(c) A Person shall be deemed the
"Beneficial Owner" of, and shall be deemed to
"beneficially own," any securities:
3
(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 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
4
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
5
Exchange Act, and (B) is not also 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 (c)) or disposing of any
voting securities of the Company; provided,
however, that nothing in this paragraph (c)
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 days after the date of such acquisition.
6
(d) "Business Day" shall mean any day
other than a Saturday, Sunday or a day on which banking
institutions in the State of New York are authorized or
obligated by law or executive order to close.
(e) "Close of business" on any given date
shall mean 5:00 P.M., New York 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.
(f) "Class A Common Stock" shall mean the
Class A Common Stock, par value $1.50 per share, of the
Company.
(g) "Class B Common Stock" shall mean the
Class B Common Stock, par value $1.50 per share, of the
Company.
(h) "Common Stock" shall mean the Class A
Common Stock and the Class B Common Stock, collectively,
except that "Common Stock" when used with reference to
any Person other than the Company shall mean the capital
stock 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.
7
(i) "Continuing Director" shall mean (i)
any member of the Board of Directors of the Company,
while such Person is a member of the Board, who is not an
Acquiring Person, or an Affiliate or Associate of an
Acquiring Person, or a representative of an Acquiring
Person or of any such Affiliate or Associate, and was a
member of the Board prior to the date of this Agreement,
or (ii) any Person who subsequently becomes a member of
the Board, while such Person is a member of the Board,
who is not an Acquiring Person, or an Affiliate or
Associate of an Acquiring Person, or a representative of
an Acquiring Person or of any such Affiliate or
Associate, if such Person's nomination for election or
election to the Board is recommended or approved by a
majority of the Continuing Directors.
(j) "Person" shall mean any individual,
firm, corporation, partnership or other entity.
(k) "Preferred Stock" shall mean shares
of Series A Junior Participating Preferred Stock, without
par value, of the Company, and, to the extent that there
are not a sufficient number of shares of Series A Junior
Participating Preferred Stock authorized to permit the
full exercise of the Rights, any other series of
Preferred Stock, without par value, of the Company
8
designated for such purpose containing terms
substantially similar to the terms of the Series A Junior
Participating Preferred Stock.
(l) "Section 11(a)(ii) Event" shall mean
any event described in Section 11(a)(ii) (A), (B) or (c)
hereof.
(m) "Section 13 Event" shall mean any
event described in clauses (x), (y) or (z) of Section
13(a) hereof.
(n) "Stock 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) by the Company or an Acquiring
Person that an Acquiring Person has become such.
(o) "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.
(p) "Triggering Event" shall mean any
Section 11(a)(ii) Event or any Section 13 Event.
9
Section 2. Appointment of Rights Agent. The
Company hereby appoints the Rights Agent to act as agent
for the Company (who, in accordance with Section 3
hereof, shall prior to the Distribution Date also be the
holders of the Common Stock) 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.
Section 3. Issue of Rights Certificates.
(a) Until the earlier of (i) the close of
business on the tenth day after the Stock Acquisition
Date (or, if the tenth day after the Stock Acquisition
Date occurs before the Record Date, the close of business
on the Record 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, 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
10
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 15% or more of the
shares of Class A Common Stock 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 Stock
registered in the names of the holders of the Common
Stock (which certificates for Common Stock shall be
deemed also to be certificates for Rights) and not by
separate certificates, and (y) the Rights will be
transferable only in connection with the transfer of the
underlying shares of Common Stock (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 Stock 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 share of Class A Common Stock, and 9.5285
11
Rights for each share of Class B Common Stock, so held,
subject to adjustment as provided herein. In the event
that an adjustment in the number of Rights per share of
Common Stock has been made pursuant to Section 11(p)
hereof, at the time of distribution of the Right
Certificates, the Company shall make 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.
(b) As promptly as practicable following
the Record Date, the Company will send a copy of a
Summary of Rights, in substantially the form attached
hereto as Exhibit C (the "Summary of Rights"), by
first-class, postage prepaid mail, to each record holder
of the Common Stock as of the close of business on the
Record Date, at the address of such holder shown on the
records of the Company. With respect to certificates for
the Common Stock outstanding as of the Record Date, until
the Distribution Date, the Rights will be evidenced by
such certificates for the Common Stock and the registered
holders of the Common Stock shall also be the registered
12
holders of the associated Rights. Until the earlier of
the Distribution Date or the Expiration Date (as such
term is defined in Section 7 hereof), the transfer of any
certificates representing shares of Common Stock in
respect of which Rights have been issued shall also
constitute the transfer of the Rights associated with
such shares of Common Stock.
(c) Rights shall be issued in respect of
all shares of Common Stock 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 shares of Common Stock 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
Bergen Brunswig Corporation (the "Company") and
Chemi cal Trust Company of California (the
"Rights Agent") dated as of February 8, 1994
(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 Rights Agent. 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 Rights
Agent will mail to the holder of this
certificate a copy of the Rights Agreement, as
in effect on the date of mailing, without
13
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 Associates 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 Stock represented by such
certificates shall be evidenced by such certificates
alone and registered holders of Common Stock 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 Stock represented by such certificates.
Section 4. Form of Rights Certificates.
(a) 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
14
not inconsistent with the provisions of this Agreement,
or as may be required to comply with any applicable law
or with any rule or regulation made pursuant thereto or
with any rule or regulation of any stock exchange on
which the Rights may from time to time be listed, or to
conform to usage. Subject to the provisions of 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 share
of Preferred Stock 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.
(b) Any Rights Certificate issued
pursuant to Section 3(a) 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
15
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 of Directors of
the Company 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 such Agreement.
16
Section 5. Countersignature and Registration.
(a) 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 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
17
execution of this Rights Agreement any such person was
not such an officer.
(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. (a) 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 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 share of Preferred Stock (or,
following a Triggering Event, Class A Common Stock, other
18
securities, cash or other assets, as the case may be) as
the Rights Certificate or Certificates surrendered then
entitled 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
19
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 reasonably 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.
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights. (a) 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
20
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 Agent
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 February
18, 2004, (the "Final Expiration Date"), or (ii) the time
at which the Rights are redeemed as provided in Section
23 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 share of Preferred Stock pursuant to
the exercise of a Right shall initially be $80.00, and
shall be subject to adjustment from time to time as
provided in Sections 11 and 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
21
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 share of Preferred Stock (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 shares of Preferred Stock (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 share of Preferred Stock 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 shares of Preferred Stock 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 share
of Preferred Stock as are to be purchased (in which case
certificates for the shares of Preferred Stock
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
22
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)(iii)
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 Class A Common Stock) 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 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 shares of Preferred Stock would be issued.
23
(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 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
24
has any continuing agreement, arrangement or
understanding regarding the transferred Rights or (B) a
transfer which the Board of Directors of the Company has
determined is part of a plan, arrangement or
understanding which has as a primary purpose or effect
the avoidance of this Section 7(e), shall become null and
void without any further action and no holder of such
Rights shall have any rights whatsoever with respect to
such Rights, whether under any provision of this
Agreement or otherwise. 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
25
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 cancelled form, or, if
surrendered to the Rights Agent, shall be cancelled 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 cancelled Rights Certificates to
the Company, or shall, at the written request of the
Company, destroy such cancelled Rights Certificates, and
26
in such case shall deliver a certificate of destruction
thereof to the Company.
Section 9. Reservation and Availability of
Capital Stock. (a) The Company covenants and agrees
that it will cause to be reserved and kept available out
of its authorized and unissued shares of Preferred Stock
(and, following the occurrence of a Triggering Event, out
of its authorized and unissued shares of Class A Common
Stock and/or other securities or out of its authorized
and issued shares held in its treasury), the number of
shares of Preferred Stock (and, following the occurrence
of a Triggering Event, Class A Common Stock 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 shares of Preferred
Stock (and, following the occurrence of a Triggering
Event, Class A Common Stock 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
27
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 Securities Act
of 1933 (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
28
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 shall not be
permitted under applicable law or a registration
statement shall not have 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 share of
Preferred Stock (and, following the occurrence of a
Triggering Event, Class A Common Stock and/or other
29
securities) delivered upon exercise of Rights shall, at
the time of delivery of the certificates for such shares
(subject to payment of the Purchase Price), be duly and
validly authorized and issued and fully paid and
nonassessable.
(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 share of Preferred Stock (or
Class A Common Stock 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 share of Preferred Stock (or Class A Common Stock
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 share of Preferred
Stock (or Class A Common Stock and/or other securities,
30
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. Preferred Stock Record Date. Each
person in whose name any certificate for a number of one
one-hundredths of a share of Preferred Stock (or Class A
Common Stock 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 shares of Preferred Stock (or Class A
Common Stock 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
Stock (or Class A Common Stock 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)
31
on, and such certificate shall be dated, the next
succeeding Business Day on which the Preferred Stock (or
Common Stock 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 stockholder 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
Preferred Stock payable in shares of Preferred
Stock, (B) subdivide the outstanding Preferred
Stock, (C) combine the outstanding Preferred
32
Stock into a smaller number of shares, or (D)
issue any shares of its capital stock in a
reclassification of the Preferred Stock
(including any such reclassification in
connection with a consolidation or merger in
which the Company is the continuing or
surviving corporation), except as otherwise
provided in this Section 11(a) and 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 shares of Preferred Stock or
capital stock, 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 shares of
Preferred Stock or capital stock, as the case
may be, which, if such Right had been exercised
immediately prior to such date and at a time
when the Preferred Stock transfer books of the
Company were open, he would have owned upon
33
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:
(A) any Acquiring Person or any
Associate or Affiliate of any Acquiring Person,
at any time after the date of this Agreement,
directly or indirectly, (1) shall merge into
the Company or otherwise combine with the
Company and the Company shall be the continuing
or surviving corporation of such merger or
combination and the Common Stock of the Company
shall remain outstanding and unchanged, (2)
shall, in one transaction or a series of
transactions, transfer any assets to the
Company or to any of its Subsidiaries in
exchange (in whole or in part) for shares of
34
Common Stock, for shares of other equity
securities of the Company, or for securities
exercisable for or convertible into shares of
equity securities of the Company (Common Stock
or otherwise) or otherwise obtain from the
Company, with or without consideration, any
additional shares of such equity securities or
securities exercisable for or convertible into
shares of such equity securities (other than
pursuant to a pro rata distribution to all
holders of Common Stock), (3) shall sell,
purchase, lease, exchange, mortgage, pledge,
transfer or otherwise acquire or dispose of, in
one transaction or a series of transactions,
to, from or with (as the case may be) the
Company or any of its Subsidiaries, assets on
terms and conditions less favorable to the
Company than the Company would be able to
obtain in arm's-length negotiation with an
unaffiliated third party, other than pursuant
to a transaction set forth in Section 13(a)
hereof, (4) shall sell, purchase, lease,
exchange, mortgage, pledge, transfer or
otherwise acquire or dispose of in one
35
transaction or a series of transactions, to,
from or with (as the case may be) the Company
or any of the Company's Subsidiaries (other
than incidental to the lines of business, if
any, engaged in as of the date hereof between
the Company and such Acquiring Person or
Associate or Affiliate) assets having an
aggregate fair market value of more than
$5,000,000, other than pursuant to a
transaction set forth in Section 13(a) hereof,
(5) shall receive any compensation from the
Company or any of the Company's Subsidiaries
other than compensation for full-time
employment as a regular employee at rates in
accordance with the Company's (or its
Subsidiaries') past practices, or (6) shall
receive the benefit, directly or indirectly
(except proportionately as a stockholder and
except if resulting from a requirement of law
or governmental regulation), of any loans,
advances, guarantees, pledges or other
financial assistance or any tax credits or
other tax advantage provided by the Company or
any of its Subsidiaries, or
36
(B) any Person (other than the
Company, any Subsidiary of the Company, any
employee benefit plan of the Company or of any
Subsidiary of the Company, or any Person or
entity organized, appointed or established by
the Company for or pursuant to the terms of any
such plan), alone or together with its
Affiliates and Associates, shall, at any time
after the Rights Dividend Declaration Date,
become the Beneficial Owner of 15% or more of
the shares of Class A Common Stock then
outstanding, unless the event causing the 15%
threshold to be crossed is (a) a transaction
set forth in Section 13(a) hereof, (b) a
transaction or series of related transactions
approved by the Board of Directors before such
Person (or a predecessor of such Person)
otherwise became an Acquiring Person or (c) any
other action or transaction which the Board of
Directors determines should not, consistent
with the purposes of this Agreement, cause such
Person (or a predecessor of such person) to be
deemed an Acquiring Person, which determination
is made by the Board of Directors prior to such
37
Person (or a predecessor of such person)
otherwise becoming an Acquiring Person, or
(C) during such time as there is
an Acquiring Person, there shall be any
reclassification of securities (including any
reverse stock split), or recapitalization of
the Company, or any merger or consolidation of
the Company with any of its Subsidiaries or any
other transaction or series of transactions
involving the Company or any of its
Subsidiaries, other than a transaction or
transactions to which the provisions of Section
13(a) apply (whether or not with or into or
otherwise involving an Acquiring Person) which
has the effect, directly or indirectly, of
increasing by more than 1% the proportionate
share of the outstanding shares of any class of
equity securities of the Company or any of its
Subsidiaries which is directly or indirectly
beneficially owned by any Acquiring Person or
any Associate or Affiliate of any Acquiring
Person,
then, promptly following the occurrence of any event
described in Section 11(a)(ii)(A), (B) or (C) hereof,
38
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 share of Preferred
Stock, such number of shares of Class A Common Stock 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 share of Preferred
Stock 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 50% of the current market price
(determined pursuant to Section 11(d) hereof) per share
of Class A Common Stock on the date of such first
occurrence (such number of shares, the "Adjustment
Shares").
(iii) In the event that the number
of shares of Class A Common Stock which are
authorized by the Company's certificate of
incorporation but not outstanding or reserved
39
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 (subject to Section 7(e) hereof), 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 Stock or other equity
securities of the Company (including, without
limitation, shares, or units of shares, of
preferred stock, such as the Preferred Stock,
which the Board has deemed to have essentially
the same value or economic rights as shares of
Class A Common Stock (such shares of preferred
stock being referred to as "Common Stock
Equivalents")), (4) debt securities of the
Company, (5) other assets, or (6) any
combination of the foregoing, having an
40
aggregate value equal to the Current Value
(less the amount of any reduction in the
Purchase Price), 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 as the "Section 11(a)(ii) Trigger
Date"), then the Company shall be obligated to
deliver, upon the surrender for exercise of a
Right and without requiring payment of the
Purchase Price, shares of Class A Common Stock
(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
41
Current Value over (ii) the Purchase Price. If
the Board determines in good faith that it is
likely that sufficient additional shares of
Class A Common Stock 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 (1) shall
provide, subject to Section 7(e) hereof, that
such action shall apply uniformly to all
outstanding Rights, and (2) 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
42
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 of each
Adjustment Share shall be the Current Market
Price per share of the Class A Common Stock on
the Section 11(a)(ii) Trigger Date and the per
share or per unit value of any Common Stock
Equivalent shall be deemed to equal the Current
Market Price per share of the Class A Common
Stock 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 Preferred Stock entitling them
to subscribe for or purchase (for a period expiring
within forty-five (45) calendar days after such record
date) Preferred Stock (or shares having the same rights,
privileges and preferences as the shares of Preferred
Stock ("equivalent preferred stock")) or securities
43
convertible into Preferred Stock or equivalent preferred
stock at a price per share of Preferred Stock or per
share of equivalent preferred stock (or having a
conversion price per share, if a security convertible
into Preferred Stock or equivalent preferred stock) less
than the current market price (as determined pursuant to
Section 11(d) hereof) per share of Preferred Stock 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 shares of Preferred Stock outstanding on
such record date, plus the number of shares of Preferred
Stock which the aggregate offering price of the total
number of shares of Preferred Stock and/or equivalent
preferred stock 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 shares of Preferred Stock outstanding on such record
date, plus the number of additional shares of Preferred
Stock and/or equivalent preferred stock to be offered for
subscription or purchase (or into which the convertible
securities so to be offered are initially convertible).
44
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 of Directors of
the Company, 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. Shares of Preferred Stock 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
Preferred Stock (including any such distribution made in
connection with a consolidation or merger in which the
Company is the continuing 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
Preferred Stock, but including any dividend payable in
45
stock other than Preferred Stock) 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 share of Preferred Stock on such record
date, less the fair market value (as determined in good
faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed
with the Rights Agent) of the portion of the cash, assets
or evidences of indebtedness so to be distributed or of
such subscription rights or warrants applicable to a
share of Preferred Stock and the denominator of which
shall be such current market price (as determined
pursuant to Section 11(d) hereof) per share of Preferred
Stock. Such adjustments shall be made successively
whenever such a record date is fixed, and in the event
that such distribution is not so made, the Purchase Price
shall be adjusted to be the Purchase Price which would
have been in effect if such record date had not been
fixed.
46
(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 share of Class A Common Stock on any date shall
be deemed to be the average of the daily closing prices
per share of such Class A Common Stock for the thirty
(30) consecutive Trading Days immediately prior to such
date, and for purposes of computations made pursuant to
Section 11(a)(iii) hereof, the Current Market Price per
share of Class A Common Stock on any date shall be deemed
to be the average of the daily closing prices per share
of such Class A Common Stock for the ten (10) consecutive
Trading Days immediately following such date; provided,
however, that in the event that the Current Market Price
per share of the Class A Common Stock is determined
during a period following the announcement by the issuer
of such Class A Common Stock of (A) a dividend or
distribution on such Class A Common Stock payable in
shares of such Class A Common Stock or securities
convertible into shares of such Class A Common Stock
(other than the Rights), or (B) any subdivision,
combination or reclassification of such Class A Common
Stock, and the ex-dividend date for such dividend or
distribution, or the record date for such subdivision,
47
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 American Stock Exchange or, if
the shares of Class A Common Stock are not listed or
admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction
reporting system with respect to securities listed on the
principal national securities exchange on which the
shares of Class A Common Stock are listed or admitted to
trading or, if the shares of Class A Common Stock 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
48
Quotation System or such other system then in use, or, if
on any such date the shares of Class A Common Stock are
not quoted by any such organization, the average of the
closing bid and asked prices as furnished by a
professional market maker making a market in the Class A
Common Stock selected by the Board. If on any such date
no market maker is making a market in the Class A Common
Stock, 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
shares of Class A Common Stock are listed or admitted to
trading is open for the transaction of business or, if
the shares of Class A Common Stock are not listed or
admitted to trading on any national securities exchange,
a Business Day. If the Class A Common Stock 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.
(ii) For the purpose of any computation
hereunder, the Current Market Price per share of
49
Preferred Stock shall be determined in the same manner as
set forth above for the Class A Common Stock in clause
(i) of this Section 11(d) (other than the last sentence
thereof). If the Current Market Price per share of
Preferred Stock cannot be determined in the manner
provided above or if the Preferred Stock 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
share of Preferred Stock shall be conclusively deemed to
be an amount equal to 100 (as such number may be
appropriately adjusted for such events as stock splits,
stock dividends and recapitalizations with respect to the
Class A Common Stock occurring after the date of this
Agreement) multiplied by the Current Market Price per
share of the Class A Common Stock. If neither the Class
A Common Stock nor the Preferred Stock is publicly held
or so listed or traded, Current Market Price per share of
the Preferred Stock 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. For all purposes of this Agreement, the
Current Market Price of a Unit shall be equal to the
50
Current Market Price of one share of Preferred Stock
divided by 100.
(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 share of Class A Common
Stock or other share or one-millionth of a share of
Preferred Stock, 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 shares of capital stock other
than Preferred Stock, thereafter the number of such other
51
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 Preferred Stock 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 Preferred Stock 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 share of Preferred Stock 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 share of Preferred Stock
52
(calculated to the nearest one-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 share of Preferred
Stock 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-hundredths of a share of Preferred Stock 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
53
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
54
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 share of Preferred Stock 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-hundredth 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 share of Preferred Stock issuable
upon exercise of the Rights, the Company shall take any
corporate action which may, in the opinion of its
counsel, be necessary in order that the Company may
validly and legally issue fully paid and nonassessable
such number of one one-hundredths of a share of Preferred
Stock at such adjusted Purchase Price.
55
(l) In any case in which this Section 11
shall require that an adjustment in the Purchase Price be
made effective as of a record date for a specified event,
the Company may elect to defer 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 share of Preferred Stock and other
capital stock or securities of the Company, if any,
issuable upon such exercise over and above the number of
one one-hundredths of a share of Preferred Stock and
other capital stock or securities of the Company, if any,
issuable upon such exercise on the basis of the Purchase
Price in effect prior to such adjustment; provided,
however, that the Company shall deliver to such holder a
due bill or 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 of Directors of the Company shall
56
determine to be advisable in order that any (i)
consolidation or subdivision of the Preferred Stock, (ii)
issuance wholly for cash of any shares of Preferred Stock
at less than the current market price, (iii) issuance
wholly for cash of shares of Preferred Stock or
securities which by their terms are convertible into or
exchangeable for shares of Preferred Stock, (iv) stock
dividends or (v) issuance of rights, options or warrants
referred to in this Section 11, hereafter made by the
Company to holders of its Preferred Stock shall not be
taxable to such stockholders.
(n) The Company covenants and agrees that
it shall not, at any time after the Distribution Date,
(i) consolidate with any other Person (other than a
Subsidiary of the Company in a transaction which complies
with Section 11(o) hereof), (ii) merge with or into any
other Person (other than a Subsidiary of the Company in a
transaction which complies with Section 11(o) hereof), or
(iii) sell or transfer (or permit any Subsidiary to sell
or transfer), in one transaction, or a series of related
transactions, assets or earning power aggregating more
than 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
57
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, merger
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, merger 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, 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
58
shall at any time after the Rights Dividend Declaration
Date and prior to the Distribution Date (i) declare a
dividend on the outstanding shares of Common Stock
payable in shares of Class A Common Stock, (ii) subdivide
the outstanding shares of Common Stock, or (iii) combine
the outstanding shares of Common Stock into a smaller
number of shares, the number of Rights associated with
each share of Common Stock 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 share of Common
Stock following any such event shall equal the result
obtained by multiplying the number of Rights associated
with each share of Common Stock immediately prior to such
event by a fraction the numerator which shall be the
total number of shares of Class A Common Stock plus
9.5285 times the number of shares of Class B Common Stock
outstanding immediately following such event and the
denominator of which is the number of shares of Class A
Common Stock plus 9.5285 times the number of shares of
Class B Common Stock that were outstanding immediately
prior to such event.
Section 12. Certificate of Adjusted Purchase
Price or Number of Shares. Whenever an adjustment is
59
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 file with
the Rights Agent, and with each transfer agent for the
Preferred Stock and the Common Stock, 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 shares of Common Stock) in accordance with
Section 26 hereof. The Rights Agent shall be fully
protected in relying on any such certificate and on any
adjustment therein contained.
Section 13. Consolidation, Merger or Sale or
Transfer of Assets or Earning Power.
(a) In the event that, following the
Stock Acquisition Date, directly or indirectly, (x) the
Company shall consolidate with, or merge with and into,
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 or merger,
(y) any Person (other than a Subsidiary of the Company in
a transaction which complies with Section 11(o) hereof)
60
shall consolidate with, or merge with or into, the
Company, and the Company shall be the continuing or
surviving corporation of such consolidation or merger
and, in connection with such consolidation or merger, all
or part of the outstanding shares of Common Stock shall
be changed into or exchanged for stock or other
securities of any other Person or cash or any other
property, or (z) the Company shall sell 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 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, proper provision shall be made so
that: (i) each holder of a 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 shares of
Common Stock of the Principal Party (as such term is
61
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-hundredth of a share of Preferred Stock 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) 50% of the current market price
(determined pursuant to Section 11(d)(i) hereof) per
share of the Common Stock of such Principal Party on the
date of consummation of such Section 13 Event; (ii) such
Principal Party shall thereafter be liable for, and shall
assume, by virtue of such Section 13 Event, all the
obligations and duties of the Company pursuant to this
Agreement; (iii) the term "Company" shall thereafter be
62
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
shares of its Common Stock) 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 shares of Common Stock 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
shares of Common Stock of the Company are
converted in such merger or consolidation, and
if no securities are so issued, the Person that
is the other party to such merger or
consolidation; and
63
(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 Stock 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 a direct or indirect Subsidiary
of another Person the Common Stock 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 Stocks of two or more of which are and
have been so registered, "Principal Party" shall refer to
whichever of such Persons is the issuer of the Common
Stock having the greatest aggregate market value.
(c) The Company shall not consummate any
such consolidation, merger, sale or transfer unless the
Principal Party shall have a sufficient number of
authorized shares of its Common Stock which have not been
64
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, merger 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) will deliver to holders of
the Rights historical financial statements for
the Principal Party and each of its Affiliates
65
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 mergers or consolidations 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).
Section 14. Fractional Rights and Fractional
Shares.
(a) The Company shall not be required to
issue fractions of Rights, except prior to the
Distribution Date as provided in Section 11(p) hereof and
with respect to the Class B Common Stock, or to
distribute Rights Certificates which evidence fractional
Rights. In lieu of such fractional Rights, there shall
be paid to the registered holders of the Rights
Certificates with regard to which such fractional Rights
would otherwise be issuable, an amount in cash equal to
the same fraction of the current market value of a whole
Right. For purposes of this Section 14(a), the current
market value of a whole Right shall be the closing price
66
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 of Directors of the Company.
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If on any such date no such market maker is making a
market in the Rights the fair value of the Rights on such
date as determined in good faith by the Board of
Directors of the Company shall be used.
(b) The Company shall not be required to
issue fractions of shares of Preferred Stock (other than
fractions which are integral multiples of one
one-hundredth of a share of Preferred Stock) upon
exercise of the Rights or to distribute certificates
which evidence fractional shares of Preferred Stock
(other than fractions which are integral multiples of one
one-hundredth of a share of Preferred Stock). In lieu of
fractional shares of Preferred Stock that are not
integral multiples of one one-hundredth of a share of
Preferred Stock, 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 Preferred Stock. For
purposes of this Section 14(b), the current market value
of one one-hundredth of a share of Preferred Stock shall
be one one-hundredth of the closing price of a share of
Preferred Stock (as determined pursuant to Section
68
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 shares of Class A Common Stock upon
exercise of the Rights or to distribute certificates
which evidence fractional shares of Class A Common Stock.
In lieu of fractional shares of Class A Common Stock, 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) share of
Class A Common Stock. For purposes of this Section
14(c), the current market value of one share of Class A
Common Stock shall be the closing price of one share of
Class A Common Stock (as determined pursuant to Section
11(d)(i) hereof) for the Trading Day immediately prior to
the date of such exercise.
(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.
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Section 15. Rights of Action. All rights of
action in respect of this Agreement are vested in the
respective registered holders of the Rights Certificates
(and, prior to the Distribution Date, the registered
holders of the Common Stock); and any registered holder
of any Rights Certificate (or, prior to the Distribution
Date, of the Common Stock), without the consent of the
Rights Agent or of the holder of any other Rights
Certificate (or, prior to the Distribution Date, of the
Common Stock), may, in his own behalf and for his own
benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Company to
enforce, or otherwise act in respect of, 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 shall 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.
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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 Stock;
(b) after the Distribution Date, the
Rights Certificates are transferable only on the registry
books of the Rights Agent if surrendered at the principal
office 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, the associated
Common Stock certificate) is registered as the absolute
owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing on
the Rights Certificates or the associated Common Stock
certificate made by anyone other than the Company or the
Rights Agent) for all purposes whatsoever, and neither
71
the Company nor the Rights Agent, subject to the last
sentence of Section 7(e) hereof, shall be required to be
affected by any notice to the contrary; and
(d) notwithstanding anything in this
Agreement to the contrary, neither the Company nor the
Rights Agent shall have any liability to any holder of a
Right or other Person as a result of its inability to
perform any of its obligations under this Agreement by
reason of any preliminary or permanent injunction or
other order, decree or ruling issued by a court of
competent jurisdiction or by a governmental, regulatory
or administrative agency or commission, or any statute,
rule, regulation or executive order promulgated or
enacted by any governmental authority, prohibiting or
otherwise restraining performance of such obligation;
provided, however, the Company must use its best efforts
to have any such order, decree or ruling lifted or
otherwise overturned as soon as possible.
Section 17. Rights Certificate Holder Not
Deemed a Stockholder. No holder, as such, of any Rights
Certificate shall be entitled to vote, receive dividends
or be deemed for any purpose the holder of the number of
one one-hundredths of a share of Preferred Stock or any
other securities of the Company which may at any time be
72
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 stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive
notice of meetings or other actions affecting
stockholders (except as provided in Section 25 hereof),
or to receive dividends or subscription rights, or
otherwise, until the Right or Rights evidenced by such
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
73
demand of the Rights Agent, its reasonable expenses and
counsel fees and disbursements and other disbursements
incurred in the administration and execution of this
Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the
Rights Agent for, and to hold it harmless against, any
loss, liability, or expense, incurred without negligence,
bad faith or willful misconduct on the part of the Rights
Agent, for anything done or omitted by the Rights Agent
in connection with the acceptance and administration of
this Agreement, including the costs and expenses of
defending against any claim of liability in the premises.
Anything in this Agreement to the contrary
notwithstanding, in no event shall the Rights Agent be
liable for special, indirect or consequential loss or
damage of any kind whatsoever (including but not limited
to lost profits) incurred without bad faith or willful
misconduct on the part of the Rights Agent, even if the
Rights Agent has been advised of the likelihood of such
loss or damage and regardless of the form of action.
(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 its administration of this Agreement in reliance
upon any Rights Certificate or certificate for Common
Stock or for other securities of the Company, instrument
74
of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction,
consent, certificate, statement, or other paper or
document believed by it to be genuine and to be signed,
executed and, where necessary, verified or acknowledged,
by the proper Person or Persons.
Section 19. Merger or Consolidation or Change
of Name of Rights Agent.
(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 business of the Rights Agent or any successor
Rights Agent, shall be the successor to the Rights Agent
under this Agreement without the execution or filing of
any paper or any further act on the part of any of the
parties hereto; provided, 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
75
deliver such Rights Certificates so countersigned; and in
case at that time any of the Rights Certificates shall
not have been countersigned, any successor Rights Agent
may countersign such Rights Certificates either in the
name of the predecessor or in the name 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:
76
(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 or suffering any action hereunder, such fact or
matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be
conclusively proved and established by a certificate
signed by 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 or suffered in good faith by it under the
provisions of this Agreement in reliance upon such
certificate.
77
(c) The Rights Agent shall be liable
hereunder only for its own negligence, bad faith or
willful misconduct.
(d) The Rights Agent shall not be liable
for or by reason of any of the statements of fact or
recitals contained in this Agreement or in the Rights
Certificates or be required to verify the same (except as
to its countersignature on such Rights Certificates), 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
78
hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any
shares of Class A Common Stock or Preferred Stock to be
issued pursuant to this Agreement or any Rights
Certificate or as to whether any shares of Class A Common
Stock or Preferred Stock will, when so issued, be validly
authorized and issued, fully paid and nonassessable.
(f) The Company agrees that it will
perform, execute, acknowledge and deliver or cause to be
performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may
reasonably be required by the Rights Agent for the
carrying out or performing by the Rights Agent of the
provisions of this Agreement.
(g) The Rights Agent is hereby authorized
and directed to accept instructions 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 or suffered to be taken by it in good faith in
accordance with instructions of any such officer.
(h) The Rights Agent and any stockholder,
director, officer or employee of the Rights Agent may
79
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,
however, 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 that repayment of such funds or
adequate indemnification against such risk or liability
is not reasonably assured to it.
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(k) If, with respect to any Right
Certificate surrendered to the Rights Agent for exercise
or transfer, the certificate attached to the form of
assignment or form of election to purchase, as the case
may be, has either not been completed or indicates an
affirmative response to clause 1 and/or 2 thereof, the
Rights Agent shall not take any further action with
respect to such requested exercise of transfer without
first consulting with the Company.
Section 21. Change of Rights Agent. The
Rights Agent or any successor Rights Agent may resign and
be discharged from its duties under this Agreement upon
thirty (30) days' notice in writing mailed to the
Company, and to each transfer agent of the Common Stock
and Preferred Stock, by registered or certified mail, and
to the holders of the Rights Certificates by first-class
mail. The Company may remove the Rights Agent or any
successor Rights Agent upon thirty (30) days' notice in
writing, mailed to the Rights Agent or successor Rights
Agent, as the case may be, and to each transfer agent of
the Common Stock and Preferred Stock, by registered or
certified mail, and to the holders of the Rights
Certificates by first-class mail. If the Rights Agent
shall resign or be removed or shall otherwise become
incapable of acting, the Company shall appoint a
successor to the Rights Agent. If the Company shall fail
81
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 any registered holder of any Rights
Certificate may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent.
Any successor Rights Agent, whether appointed by the
Company or by such a court, shall be a corporation
organized and doing business under the laws of the United
States or of the State of New York (or of any other state
of the United States so long as such corporation is
authorized to do business as a banking institution in the
State of New York), in good standing, having a principal
office in the State of New York, which is authorized
under such laws to exercise corporate trust 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
$100,000,000. 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
82
to the successor Rights Agent any property at the time
held by it hereunder, and execute and deliver any further
assurance, conveyance, act or deed necessary for the
purpose. Not later than the effective date of any such
appointment, the Company shall file notice thereof in
writing with the predecessor Rights Agent and each
transfer agent of the Common Stock and the Preferred
Stock, and mail a notice thereof in writing to the
registered holders of the Rights Certificates. Failure
to give any notice provided for in this Section 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, issue new Rights Certificates
evidencing Rights in such form as may be approved by its
Board of Directors to reflect any adjustment or change in
the Purchase Price and the number or kind or class of
shares or other securities or property purchasable under
the Rights Certificates made in accordance with the
provisions of this Agreement. In addition, in connection
with the issuance or sale of shares of Common Stock
following the Distribution Date and prior to the
83
redemption or expiration of the Rights, the Company (a)
shall, with respect to shares of Common Stock so issued
or sold pursuant to the exercise of stock options or
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 of Directors of the Company, 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 Board of Directors of the Company
may, at its option, at any time prior to the earlier of
(i) the close of business on the tenth day following the
Stock Acquisition Date (or, if the Stock Acquisition Date
shall have occurred prior to the Record Date, the close
84
of business on the tenth day following the Record 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 stock split, stock
dividend or similar transaction occurring after the date
hereof (such redemption price being hereinafter referred
to as the "Redemption Price"); provided, however, if the
Board of Directors of the Company authorizes redemption
of the Rights in either of the circumstances set forth in
clauses (i) and (ii) below, then there must be Continuing
Directors then in office and such authorization shall
require the concurrence of a majority of such Continuing
Directors: (i) such authorization occurs on or after the
time a Person becomes an Acquiring Person, or (ii) such
authorization occurs on or after the date of a change
(resulting from a proxy or consent solicitation) in a
majority of the directors in office at the commencement
of such solicitation if any Person who is a participant
in such solicitation has stated (or, if upon the
commencement of such solicitation, a majority of the
Board of Directors of the Company has determined in good
faith) that such Person (or any of its Affiliates or
Associates) intends to take, or may consider taking, any
action which would result in such Person becoming an
Acquiring Person or which would cause the occurrence of a
85
Triggering Event unless, concurrent with such
solicitation, such Person (or one or more of its
Affiliates or Associates) is making a cash tender offer
pursuant to a Schedule 14D-1 (or any successor form)
filed with the Securities and Exchange Commission for all
outstanding shares of Common Stock not beneficially owned
by such Person (or by its Affiliates or Associates);
provided further, however, that if, following the
occurrence of a Stock Acquisition Date and following the
expiration of the right of redemption hereunder but prior
to any Triggering Event, (i) a Person who is an Acquiring
Person shall have transferred or otherwise disposed of a
number of shares of Class A Common Stock in one
transaction or series of transactions, not directly or
indirectly involving the Company or any of its
Subsidiaries, which did not result in the occurrence of a
Triggering Event such that such Person is thereafter a
Beneficial Owner of 15% or less of the outstanding shares
of Class A Common Stock, and (ii) there are no other
Persons, immediately following the occurrence of the
event described in clause (i), who are Acquiring Persons,
then the right of redemption shall be reinstated and
thereafter be subject to the provisions of this Section
23. 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
86
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, shares of Class A
Common Stock (based on the "current market price", as
defined in Section 11(d)(i) hereof, of the Class A Common
Stock at the time of redemption) or any other form of
consideration deemed appropriate by the Board of
Directors.
(b) Immediately upon the action of the
Board of Directors of the Company ordering the redemption
of the Rights, evidence of which shall have been filed
with the Rights Agent and without any further action and
without any notice, the right to exercise the Rights will
terminate and the only right thereafter of the holders of
Rights shall be to receive the Redemption Price for each
Right so held. Promptly after the action of the Board of
Directors ordering the redemption of the Rights, the
Company shall give notice of such redemption to the
Rights Agent and the holders of the then outstanding
Rights by mailing such notice to all such holders at each
holder's last address as it appears upon the registry
books of the Rights Agent or, prior to the Distribution
Date, on the registry books of the Transfer Agent for the
Common Stock. 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
87
redemption will state the method by which the payment of
the Redemption Price will be made.
Section 24. Exchange.
(a) The Board of Directors of the Company
may, at its option, at any time and from time to time
after the first occurrence of a Section 11(a)(ii) Event,
exchange all or part of the then outstanding and
exerciseable Rights (which shall not include Rights that
become void pursuant to the provisions of the Section
7(e) hereof) for shares of Class A Common Stock or Class
A Common Stock Equivalents, or any combination thereof,
at an exchange ratio of one share of Class A Common Stock
per Right, appropriately adjusted to reflect any stock
split, stock dividend or similar transaction occurring
after the date hereof (such exchange ratio being
hereinafter referred to as the "Exchange Ratio").
(b) Immediately upon the action of the
Board of Directors of the Company 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 shares of Class A Common Stock
and/or Class A Common Stock Equivalents equal to the
number of such Rights held by such holder multiplied by
the Exchange Ratio. The Company shall promptly give
88
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 latest
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 shares
of Class A Common Stock for Rights will be effected and,
in the event of any partial exchange. 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 the event that the number of
shares of Class A Common Stock which are authorized by
the Company's Restated Certificate of Incorporation but
not outstanding or reserved for issuance for purposes
other than upon exercise of the Rights are not sufficient
to permit any exchange of Rights as contemplated in
accordance with this Section 24, the Company may, at its
option, take all such action as may be necessary to
authorize additional shares of Class A Common Stock for
issuance upon exchange of the Rights.
89
(d) The Company shall not be required to
issue fractions of shares of Class A Common Stock or to
distribute certificates which evidence fractional shares
of Class A Common Stock. In lieu of such fractional
shares of Class A Common Stock, the Company shall pay to
the registered holders of Rights with regard to which
such fractional shares of Class A Common Stock would
otherwise be issuable an amount in cash equal to the same
fraction of the value of a whole share of Class A Common
Stock. For purposes of this Section 24, the value of a
whole share of Class A Common Stock shall be the closing
price (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, and the value of any Class A Common Stock Equivalent
shall be deemed to have the same value as the Class A
Common Stock on such date.
Section 25. Notice of Certain Events.
(a) In case the Company shall propose, at
any time after the Distribution Date, (i) to pay any
dividend payable in stock of any class to the holders of
Preferred Stock or to make any other distribution to the
holders of Preferred Stock (other than a regular
quarterly cash dividend out of earnings or retained
earnings of the Company), or (ii) to offer to the holders
of Preferred Stock rights or warrants to subscribe for or
90
to purchase any additional shares of Preferred Stock or
shares of stock of any class or any other securities,
rights or options, or (iii) to effect any
reclassification of its Preferred Stock (other than a
reclassification involving only the subdivision of
outstanding shares of Preferred Stock), or (iv) to effect
any consolidation or merger 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
any sale or other transfer (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 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 stock dividend,
distribution of rights or warrants, or the date on which
such reclassification, consolidation, merger, sale,
transfer, liquidation, dissolution, or winding up is to
91
take place and the date of participation therein by the
holders of the shares of Preferred Stock, 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 shares of Preferred Stock
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 shares of
Preferred Stock whichever shall be the earlier.
(b) In case any of the events set forth
in Section 11(a)(ii) hereof 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, 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) hereof, and
(ii) all references in the preceding paragraph to
Preferred Stock shall be deemed thereafter to refer to
Class A Common Stock and/or, if appropriate, other
securities.
Section 26. Notices. Notices or demands
authorized by this Agreement to be given or made by the
Rights Agent or by the holder of any Rights Certificate
92
to or on the Company shall be sufficiently given or made
if sent by first-class mail, postage prepaid, addressed
(until another address is filed in writing with the
Rights Agent) as follows:
Bergen Brunswig Corporation
4000 Metropolitan Drive
Orange, California 92668-3510
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,
addressed (until another address is filed in writing with
the Company) as follows:
Chemical Trust Company of California
50 California Street, 10th Floor
San Francisco, California 94111
Attention: Corporate Trust Department
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 shares of Common Stock) shall be
sufficiently given or made if sent by first-class mail,
postage prepaid, addressed to such holder at the address
of such holder as shown on the registry books of the
Company.
93
Section 27. Supplements and Amendments. Prior
to the Distribution Date and subject to the penultimate
sentence of this Section 27, the Company and the Rights
Agent shall, if the Company so directs, supplement or
amend any provision of this Agreement without the
approval of any holders of certificates representing
shares of Common Stock. From and after the Distribution
Date and subject to the penultimate sentence of this
Section 27, the Company and the Rights Agent shall, if
the Company so directs, supplement or amend this
Agreement without the approval of any holders of Rights
Certificates in order (i) to cure any ambiguity, (ii) to
correct 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 (which lengthening or shortening,
following the first occurrence of an event set forth in
clauses (i) and (ii) of the first proviso to Section
23(a) hereof, shall be effective only if there are
Continuing Directors and shall require the concurrence of
a majority of such Continuing Directors), or (iv) to
change or supplement the provisions hereunder in any
manner which the Company may deem necessary or desirable
and which shall not adversely affect the interests of the
holders of Rights Certificates (other than an Acquiring
Person or an Affiliate or Associate of an Acquiring
94
Person); provided, this Agreement may not be supplemented
or amended to lengthen, pursuant to clause (iii) of this
sentence, (A) a time period relating to when the Rights
may be redeemed at such time as the Rights are not then
redeemable, or (B) any other time period 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, he Rights
Agent shall execute such supplement or amendment.
Notwithstanding anything contained in this Agreement to
the contrary, no supplement or amendment shall be made
which changes the Redemption Price, the Final Expiration
Date, the Purchase Price or the number of one
one-hundredths of a share of Preferred Stock for which a
Right is exercisable. Prior to the Distribution Date,
the interests of the holders of Rights shall be deemed
coincident with the interests of the holders of Common
Stock.
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.
95
Section 29. Determinations and Actions by the
Board of Directors, etc. For all purposes of this
Agreement, any calculation of the number of shares of
Common Stock outstanding at any particular time,
including for purposes of determining the particular
percentage of such outstanding shares of Common Stock 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 of Directors of the Company
(with, where specifically provided for herein, the
concurrence of the Continuing Directors) shall have the
exclusive power and authority to administer this
Agreement and to exercise all rights and powers
specifically granted to the Board (with, where
specifically provided for herein, the concurrence of the
Continuing Directors) 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
96
omissions with respect to the foregoing) which are done
or made by the Board (with, where specifically provided
for herein, the concurrence of the Continuing Directors)
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 or the Continuing Directors 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 Stock) any legal or equitable right, remedy or
claim under this Agreement; but this Agreement shall be
for the sole and exclusive benefit of the Company, the
Rights Agent and the registered holders of the Rights
Certificates (and, prior to the Distribution Date,
registered holders of the Common Stock).
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
97
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 of Directors of the Company determines in
its good faith judgment that severing the invalid
language from this Agreement would adversely affect the
purpose or effect of this Agreement, the right of
redemption set forth in Section 23 hereof 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 of Directors.
Section 32. Governing Law. This Agreement,
each Right and each Rights Certificate issued hereunder
shall be deemed to be a contract made under the laws of
the State of New Jersey and for all purposes shall be
governed by and construed in accordance with the laws of
such State applicable to contracts made and to be
performed entirely within such State.
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 but one and the same instrument.
Section 34. Descriptive Headings. Descriptive
headings of the several Sections of this Agreement are
98
inserted for convenience only and shall not control or
affect the meaning or construction of any of the
provisions hereof.
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed and their
respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
Attest: BERGEN BRUNSWIG CORPORATION
By Denny W. Steele By Milan A. Sawdei
Name: Denny W. Steele Name: Milan A. Sawdei
Title: Executive Vice Title: Executive Vice
President, Chief President, Chief
Information Officer Legal Officer
and Secretary
Attest: CHEMICAL TRUST COMPANY
OF CALIFORNIA
By Mary Ann McElroy By Sharon D. Magidson
Name: Mary Ann McElroy Name: Sharon D. Magidson
Title: Assistant Vice Title: Vice President
President
99
Exhibit A
CERTIFICATE OF AMENDMENT TO THE RESTATED
CERTIFICATE OF INCORPORATION
of
BERGEN BRUNSWIG CORPORATION
To: The Secretary of State
State of New Jersey
Pursuant to the provisions of Section 14A:7-2,
Corporations, General of the Statutes, the undersigned
corporation executes the following Certificate of
Amendment to its Restated Certificate of Incorporation.
1. The name of the corporation is Bergen
Brunswig Corporation (the "Corporation").
2. The following resolution, establishing and
designating a series of shares and fixing and determining
the relative rights and preferences thereof was duly
adopted by the Board of Directors on the 8th day of
February, 1994 pursuant to authority vested in it by the
Restated Certificate of Incorporation.
RESOLVED, that pursuant to the authority vested
in the Board of Directors of this Corporation in
accordance with the provisions of its Restated
Certificate of Incorporation, a series of Preferred Stock
of the Corporation 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 Junior
Participating Preferred Stock" and the number of shares
constituting such series shall be 400,000.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights
of the holders of any shares of any series of Preferred
Stock ranking prior and superior to the shares of Series
A Junior Participating Preferred Stock with respect to
dividends, the holders of shares of Series A Junior
Participating Preferred Stock in preference to the
holders of Class A Common Stock, par value $1.50 per
share (the "Class A Common Stock"), and Class B Common
Stock, par value $1.50 per share (the "Class B Common
Stock" and collectively, with the Class A Common Stock
the "Common Stock"), shall be entitled to receive, when,
as and if declared by the Board of Directors out of funds
legally available for the purpose, quarterly dividends
payable in cash on the first day of March, June,
September and December in each year (each such date being
referred to herein as a "Quarterly Dividend Payment
Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or
fraction of a share of Series A Junior Participating
Preferred Stock, 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
shares of Class A Common Stock or a subdivision of the
outstanding shares of Class A Common Stock (by
reclassification or otherwise), declared on the Class A
Common Stock since the immediately preceding Quarterly
Dividend Payment Date, or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance
of any share or fraction of a share of Series A Junior
Participating Preferred Stock. In the event the
Corporation shall at any time after February 18, 1994
(the "Rights Declaration Date") (i) declare any dividend
on the Common Stock payable in shares of Class A Common
Stock, (ii) subdivide the outstanding Class A Common
Stock, or (iii) combine the outstanding Class A Common
Stock into a smaller number of shares, then in each such
case the amount to which holders of shares of Series A
Junior Participating Preferred Stock were entitled
immediately prior to such event under clause (b) of the
preceding sentence shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the
number of shares of Class A Common Stock plus 9.5285
times the number of shares of Class B Common Stock
outstanding immediately after such event and the
denominator of which is the number of shares of Class A
Common Stock plus 9.5285 times the number of shares of
Class B Common Stock that were outstanding immediately
prior to such event.
2
(B) The Corporation shall declare a dividend
or distribution on the Series A Junior Participating
Preferred Stock as provided in Paragraph (A) above
immediately after it declares a dividend or distribution
on the Class A Common Stock (other than a dividend
payable in shares of Class A Common Stock); provided
that, in the event no dividend or distribution shall have
been declared on the Class A Common Stock 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 Junior
Participating Preferred Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment
Date.
(C) Dividends shall begin to accrue and be
cumulative on outstanding shares of Series A Junior
Participating Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such
shares of Series A Junior Participating Preferred Stock,
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 Junior
Participating Preferred Stock entitled to receive a
quarterly dividend and before such Quarterly Dividend
Payment Date, in either of which events such dividends
shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the
shares of Series A Junior Participating Preferred Stock
in an amount less than the total amount of such dividends
at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all
such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of
holders of shares of Series A Junior Participating
Preferred Stock 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 Junior Participating Preferred Stock
shall have the following voting rights:
3
(A) Subject to the provision for adjustment
hereinafter set forth, each share of Series A Junior
Participating Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote
of the stockholders of the Corporation. In the event the
Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on the Common
Stock payable in shares of Class A Common Stock, (ii)
subdivide the outstanding Class A Common Stock, or (iii)
combine the outstanding Class A Common Stock 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 Junior Participating Preferred Stock were
entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction, the
numerator of which is the number of shares of Class A
Common Stock plus 9.5285 times the number of shares of
Class B Common Stock outstanding immediately after such
event and the denominator of which is the number of
shares of Class A Common Stock plus 9.5285 times the
number of shares of Class B Common Stock that were
outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by
law, the holders of shares of Series A Junior
Participating Preferred Stock and the holders of shares
of Class A Common Stock and any other capital stock
(other than Class B Common Stock) of the corporation
having general voting rights shall vote together as one
class on all matters submitted to a vote of stockholders
of the Corporation. Holders of shares of Class B Common
Stock shall vote as a separate class on all matters
submitted to a vote of the stockholders of the
Corporation.
(C) (i) If at any time dividends on
any Series A Junior Participating Preferred
Stock 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 Junior Participating Preferred
Stock then outstanding shall have been declared
and paid or set apart for payment. During each
4
default period, all holders of Preferred Stock
(including holders of the Series A Junior
Participating Preferred Stock) 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 Junior
Participating Preferred Stock may be exercised
initially at a special meeting called pursuant
to subparagraph (iii) of this Section 3(C) or
at any annual meeting of stockholders, and
thereafter at annual meetings of stockholders,
provided that neither such voting right nor the
right of the holders of any other series of
Preferred Stock, if any, to increase, in
certain cases, the authorized number of
Directors shall be exercised unless the holders
of ten percent (10%) in number of shares of
Preferred Stock outstanding shall be present in
person or by proxy. The absence of a quorum of
the holders of Common Stock shall not affect
the exercise by the holders of Preferred Stock
of such voting right. At any meeting at which
the holders of Preferred Stock 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 Stock
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
Stock 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
Stock as herein provided or pursuant to the
rights of any equity securities ranking senior
to or pari passu with the Series A Junior
Participating Preferred Stock.
5
(iii) Unless the holders of
Preferred Stock shall, during an existing
default period, have previously exercised their
right to elect Directors, the Board of
Directors may order, or any stockholder or
stockholders owning in the aggregate not less
than ten percent (10%) of the total number of
shares of Preferred Stock outstanding,
irrespective of series, may request, the
calling of special meeting of the holders of
Preferred Stock, which meeting shall thereupon
be called by the President, a Vice-President or
the Secretary of the Corporation. 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
Stock by mailing a copy of such notice to him
at his last address as the same appears on the
books of the Corporation. Such meeting shall
be called for a time not earlier than 20 days
and not later than 60 days after such order or
request or in default of the calling of such
meeting within 60 days after such order or
request, such meeting may be called on similar
notice by any stockholder or stockholders
owning in the aggregate not less than ten
percent (10%) of the total number of shares of
Preferred Stock outstanding. Notwithstanding
the provisions of this Paragraph (C)(iii), no
such special meeting shall be called during the
period within 60 days immediately preceding the
date fixed for the next annual meeting of the
stockholders.
(iv) In any default period, the
holders of Common Stock, and other classes of
stock of the Corporation if applicable, shall
continue to be entitled to elect the whole
number of Directors until the holders of
Preferred Stock 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 Stock 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
6
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 stock 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
stock 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 Stock as a class to elect
Directors shall cease, (y) the term of any
Directors elected by the holders of Preferred
Stock 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 certificate of incorporation or by-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 Junior Participating Preferred Stock shall have
no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote
with holders of Class A Common Stock 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 Junior
Participating Preferred Stock 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 Junior Participating
Preferred Stock outstanding shall have been paid in full,
the Corporation shall not
7
(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
Series A Junior Participating Preferred Stock;
(ii) declare or pay dividends
on or make any other distributions on any
shares of stock ranking on a parity (either as
to dividends or upon liquidation, dissolution
or winding up) with the Series A Junior
Participating Preferred Stock, except dividends
paid ratably on the Series A Junior
Participating Preferred Stock and all such
parity stock on which dividends are payable or
in arrears in proportion to the total amounts
to which the holders of all such shares are
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 Junior
Participating Preferred Stock, provided that
the Corporation may at any time redeem,
purchase or otherwise acquire shares of any
such parity stock in exchange for shares of any
stock of the Corporation ranking junior (either
as to dividends or upon dissolution,
liquidation or winding up) to the Series A
Junior Participating Preferred Stock; or
(iv) purchase or otherwise
acquire for consideration any shares of Series
A Junior Participating Preferred Stock, or any
shares of stock ranking on a parity with the
Series A Junior Participating Preferred Stock,
except in accordance with a purchase offer made
in writing or by publication (as determined by
the Board of Directors) to all holders of such
shares upon such terms as the Board of
Directors, after consideration of the
respective annual dividend rates and other
relative rights and preferences of the
respective series and classes, shall determine
in good faith will result in fair and equitable
8
treatment among the respective series or
classes.
(B) The Corporation shall not permit any
subsidiary of the Corporation to purchase or otherwise
acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under 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 Junior Participating Preferred Stock purchased
or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after
the acquisition thereof. All such shares shall upon
their cancellation become authorized but unissued shares
of Preferred Stock and may be reissued as part of a new
series of Preferred Stock 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) Upon any liquidation (voluntary or otherwise),
dissolution or winding up of the Corporation, no
distribution shall be made to the holders of shares of
stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A
Junior Participating Preferred Stock unless, prior
thereto, the holders of shares of Series A Junior
Participating Preferred Stock 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 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 Junior Participating Preferred Stock
unless, prior thereto, the holders of shares of Common
Stock 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
subparagraph (C) below to reflect such events as stock
splits, stock dividends and recapitalizations with
respect to the Common Stock) (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 Junior Participating Preferred Stock
9
and Common Stock, respectively, holders of Series A
Junior Participating Preferred Stock and holders of
shares of Common Stock 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 Stock and Common Stock, 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 stock, if
any, which rank on a parity with the Series A Junior
Participating Preferred Stock, 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 Stock.
(C) In the event the Corporation shall at any
time after the Rights Declaration Date (i) declare any
dividend on Common Stock payable in shares of Class A
Common Stock, (ii) subdivide the outstanding Class A
Common Stock, or (iii) combine the outstanding Class A
Common Stock 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 shares of Class A
Common Stock plus 9.5285 times the number of shares of
Class B Common Stock outstanding immediately after such
event and the denominator of which is the number of
shares of Class A Common Stock plus 9.5285 times the
number of shares of Class B Common Stock that were
outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In
case the Corporation shall enter into any consolidation,
merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into
other stock or securities, cash and/or any other
property, then in any such case the shares of Series A
Junior Participating Preferred Stock 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
10
amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into
which or for which each share of Class A Common Stock is
changed or exchanged. In the event the Corporation shall
at any time after the Rights Declaration Date (i) declare
any dividend on Common Stock payable in shares of Class A
Common Stock, (ii) subdivide the outstanding Common
Stock, or (iii) combine the outstanding Common Stock 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 shares of Series A Junior
Participating Preferred Stock shall be adjusted by
multiplying such amount by a fraction the numerator of
which is the number of shares of Class A Common Stock
plus 9.5285 times the number of shares of Class B Common
Stock outstanding immediately after such event and the
denominator of which is the number of shares of Class A
Common Stock plus 9.5285 times the number of shares of
Class B Common Stock that were outstanding immediately
prior to such event.
Section 8. No Redemption. The shares of
Series A Junior Participating Preferred Stock shall not
be redeemable.
Section 9. Ranking. The Series A Junior
Participating Preferred Stock shall rank junior to all
other series of the Corporation's Preferred Stock 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 Restated
Certificate of Incorporation of the Corporation shall not
be further amended in any manner which would materially
alter or change the powers, preferences or special rights
of the Series A Junior Participating Preferred Stock 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 Junior Participating Preferred Stock,
voting separately as a class.
Section 11. Fractional Shares. Series A
Junior Participating Preferred Stock 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
11
of holders of Series A Junior Participating Preferred
Stock.
3. The Restated Certificate of Incorporation
is amended so that the designation and number of shares
of each series acted upon in the foregoing resolution,
and the relative rights, preferences and limitations of
each such series, are as stated in the foregoing
resolution.
Dated this day of February, 1994.
BERGEN BRUNSWIG CORPORATION
By Milan A. Sawdei
Executive Vice President,
Chief Legal Officer and
Secretary
12
Exhibit B
[Form of Rights Certificate]
Certificate No. R- ________ Rights
NOT EXERCISABLE AFTER FEBRUARY 18, 2004 OR EARLIER IF
REDEEMED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO
REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.01 PER
RIGHT ON THE TERMS 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 SUCH AGREEMENT.](1)
Rights Certificate
BERGEN BRUNSWIG CORPORATION
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
February 8, 1994 (the "Rights Agreement"), between Bergen
Brunswig Corporation, a New Jersey corporation (the
"Company"), and Chemical Trust Company of California, a
California banking corporation (the "Rights Agent"), to
purchase from the Company at any time prior to 5:00 P.M.
(New York City time) on February 18, 1994 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 Junior Participating Preferred Stock (the "Preferred
Stock") of the Company, at a purchase price of $80.00 per
1 The portion of the legend in brackets shall be
inserted only if applicable and shall replace the
preceding sentence.
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 February
18, 1994 based on the Preferred Stock as constituted at
such date. The Company reserves the right to require
prior to the occurrence of a Triggering Event (as such
term is defined in the Rights Agreement) that a number of
Rights be exercised so that only whole shares of
Preferred Stock 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 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 shares of
Preferred Stock 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
2
and are also available upon written request to the Rights
Agent.
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 Preferred
Stock as the Rights evidenced by the Rights Certificate
or Rights Certificates surrendered shall have entitled
such holder to purchase. If this Rights Certificate
shall be exercised 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 Stock Acquisition Date (as such time period may be
extended pursuant to the Rights Agreement), and (ii) the
Final Expiration Date. In addition, the Rights may be
exchanged, in whole or in part, for shares of the Class A
Common Stock, or shares of preferred stock of the Company
having essentially the same value or economic rights as
such shares. Immediately upon the action of the Board of
Directors of the Company authorizing any such exchange,
and without any further action or any notice, the Rights
(other than Rights which are not subject to such
exchange) will terminate and the Rights will only enable
holders to receive the shares issuable upon such
exchange. Under certain circumstances set forth in the
Rights Agreement, the decision to redeem the Rights shall
require the concurrence of a majority of the Continuing
Directors. After the expiration of the redemption
period, the Company's right of redemption may be
reinstated if an Acquiring Person reduces his beneficial
ownership to 15% or less of the outstanding shares of
Common Stock in a transaction or series of transactions
not involving the Company.
No fractional shares of Preferred Stock will be
issued upon the exercise of any Right or Rights evidenced
hereby (other than fractions which are integral multiples
of one one-hundredth of a share of Preferred Stock, 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.
3
No holder of this Rights Certificate shall be
entitled to vote or receive dividends or be deemed for
any purpose the holder of shares of Preferred Stock or of
any other securities of the Company which may at any time
be issuable on the exercise hereof, nor shall anything
contained in the Rights Agreement or herein be construed
to confer upon the holder hereof, as such, any of the
rights of a stockholder of the Company or any right to
vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, or to
give or withhold consent to any corporate action, or, to
receive notice of meetings or other actions affecting
stockholders (except as provided in the Rights
Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced
by this Rights Certificate shall have been exercised as
provided in the Rights Agreement.
This Rights Certificate shall not be valid or
obligatory for any purpose until it shall have been
countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper
officers of the Company and its corporate seal.
Dated as of ,
ATTEST: BERGEN BRUNSWIG CORPORATION
____________________ By_______________________
Secretary Title:
Countersigned:
CHEMICAL TRUST COMPANY
OF CALIFORNIA
By______________________
Authorized Signature
4
[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 transfer unto
(Please print name and address of transferee)
this Rights Certificate, together with all right, title
and interest therein, and does hereby irrevocably
constitute and appoint _________________ Attorney, to
transfer the within Rights Certificate on the books of
the within-named Company, with full power of
substitution.
Dated: ___________________, 19__
___________________________
Signature
Signature Guaranteed:
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 [ ] not
acquire the Rights evidenced by this Rights Certificate
from any Person who is, was or subsequently became an
Acquiring Person or an Affiliate or Associate of an
Acquiring Person.
Dated: __________________, 19__ ______________________
Signature
Signature Guaranteed:
5
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.
6
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise Rights represented by the
Rights Certificate.)
To: BERGEN BRUNSWIG CORPORATION:
The undersigned hereby irrevocably elects to
exercise __________ Rights represented by this Rights
Certificate to purchase the shares of Preferred Stock
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: _______________, 19__
______________________
Signature
Signature Guaranteed:
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);
7
(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: ___________, 19__ ___________________________
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.
8
Exhibit C
SUMMARY OF RIGHTS TO PURCHASE
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
On February 8, 1994 (the "Rights Dividend
Declaration Date"), the Board of Directors of Bergen
Brunswig Corporation (the "Company") declared a dividend
distribution of one Right for each outstanding share of
Class A Common Stock, par value $1.50 per share (the
"Class A Common Stock"), of the Company and 9.5285 Rights
for each outstanding share of Class B Common Stock, par
value $1.50 per share (the "Class B Common Stock" and,
collectively, with the Class A Common Stock the "Common
Stock"), of the Company, to stockholders of record at the
close of business on February 18, 1994. Each Right
entitles the registered holder to purchase from the
Company a unit (a "Unit") consisting of one one-hundredth
of a share of Series A Junior Participating Preferred
Stock, without par value (the "Preferred Stock"), at a
Purchase Price of $80.00 per Unit, subject to adjustment.
The description and terms of the Rights are set forth in
a Rights Agreement, dated as of February 8 , 1994 (the
"Rights Agreement"), between the Company and Chemical
Trust Company of California, as Rights Agent.
Initially, the Rights will be attached to all
Common Stock certificates representing shares then
outstanding, and no separate Rights Certificates will be
distributed. The Rights will separate from the Common
Stock and a Distribution Date will occur upon the earlier
of (i) 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 15% or more of the
outstanding shares of Class A Common Stock (the "Stock
Acquisition Date"), or (ii) 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 15%
or more of such outstanding shares of Class A Common
Stock. Until the Distribution Date, (i) the Rights will
be evidenced by the Common Stock certificates and will be
transferred with and only with such Common Stock
certificates, (ii) new Common Stock certificates issued
after February 18, 1994 will contain a notation
incorporating the Rights Agreement by reference and (iii)
the surrender for transfer of any certificates for Common
Stock outstanding will also constitute the transfer of
the Rights associated with the Common Stock 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 shares of Preferred Stock
will be issued.
The Rights are not exercisable until the
Distribution Date and will expire at the close of
business on February 18, 2004, 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 Stock 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 of Directors,
only shares of Common Stock issued prior to the
Distribution Date will be issued with Rights.
In the event that, at any time following the
Rights Dividend Declaration Date, (i) the Company is the
surviving corporation in a merger with an Acquiring
Person and its Common Stock is not changed or exchanged,
(ii) a Person becomes the beneficial owner of more than
15% of the then outstanding shares of Class A Common
Stock (unless such transaction is approved by the Board
or such person is excepted by the Board, in either case
before such person acquires beneficial ownership of more
than 15% of the outstanding Class A Common Stock), (iii)
an Acquiring Person engages in one or more "self-dealing"
transactions as set forth in the Rights Agreement, or
(iv) during such time as there is an Acquiring Person, an
event occurs which results in such Acquiring Person's
ownership interest being increased by more than 1% (e.g.,
a reverse stock split), each holder of a Right will
thereafter have the right to receive, upon exercise,
Class A Common Stock (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 any of the events set forth in this
paragraph (the "Flip-In Events"), all Rights that are, or
2
(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 any of the Flip-
In Events until such time as the Rights are no longer
redeemable by the Company as set forth below.
For example, at an exercise price of $80 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 $160 worth of Class A Common Stock (or other
consideration, as noted above) for $80. Assuming that
the Class A Common Stock had a per share value of $20 at
such time, the holder of each valid Right would be
entitled to purchase 8 shares of Class A Common Stock for
$80.
In the event that, at any time following the
Stock Acquisition Date, (i) the Company is acquired in a
merger or other business combination transaction in which
the Company is not the surviving corporation (other than
following a permitted transaction as described in the
second preceding paragraph), or (ii) 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 stock 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."
The Purchase Price payable, and the number of
Units of Preferred Stock or other securities or property
issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in
the event of a stock dividend on, or a subdivision,
combination or reclassification of, the Preferred Stock,
(ii) if holders of the Preferred Stock are granted
certain rights or warrants to subscribe for Preferred
Stock or convertible securities at less than the current
market price of the Preferred Stock, or (iii) upon the
distribution to holders of the Preferred Stock of
evidences of indebtedness or assets (excluding regular
quarterly cash dividends) or of subscription rights or
warrants (other than those referred to above).
3
With certain exceptions, no adjustment in the
Purchase Price will be required until cumulative
adjustments amount to at least 1% of the Purchase Price.
No fractional Units will be issued and, in lieu thereof,
an adjustment in cash will be made based on the market
price of the Preferred Stock on the last trading date
prior to the date of exercise.
At any time after the occurrence of any of the
Flip-In Events, the Board of Directors of the Company may
exchange the Rights (other than Rights owned by an
Acquiring Person which will become void as described
above), in whole or in part, for shares of Class A Common
Stock or shares of preferred stock of the Company having
essentially the same value or economic rights as shares
of Class A Common Stock, at an exchange ratio of one
share of Class A Common Stock per Right, subject to
antidilution adjustments.
At any time until ten days following the Stock
Acquisition Date, the Company may redeem the Rights in
whole, but not in part, at a price of $.01 per Right
(payable in cash, Class A Common Stock or other
consideration deemed appropriate by the Board of
Directors). Under certain circumstances set forth in the
Rights Agreement, the decision to redeem shall require
the concurrence of a majority of the Continuing
Directors. After the redemption period has expired, the
Company's right of redemption may be reinstated if an
Acquiring Person reduces his beneficial ownership to 15%
or less of the outstanding shares of Class A Common Stock
in a transaction or series of transactions not involving
the Company. Immediately upon the action of the Board of
Directors ordering redemption of the Rights, with, where
required, the concurrence of the Continuing Directors,
the Rights will terminate and the only right of the
holders of Rights will be to receive the $.01 redemption
price.
The term "Continuing Directors" means any
member of the Board of Directors of the Company who was a
member of the Board prior to the date of the Rights
Agreement, and any person who is subsequently elected to
the Board if such person is recommended or approved by a
majority of the Continuing Directors, but shall not
include an Acquiring Person, or an affiliate or associate
4
of an Acquiring Person, or any representative of the
foregoing entities.
Until a Right is exercised, the holder thereof,
as such, will have no rights as a stockholder 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 stockholders or to the
Company, stockholders may, depending upon the
circumstances, recognize taxable income in the event that
the Rights become exercisable for Class A Common Stock
(or other consideration) of the Company or for common
stock of the acquiring company as set forth above.
Other than those provisions relating to the
principal economic terms of the Rights, any of the
provisions of the Rights Agreement may be amended by the
Board of Directors of the Company prior to the
Distribution Date. After the Distribution Date, the
provisions of the Rights Agreement may be amended by the
Board (in certain circumstances, with the concurrence of
the Continuing Directors) in order to cure any ambiguity,
to make changes which do not adversely affect the
interests of holders of Rights (excluding the interests
of any Acquiring Person), or to shorten or lengthen any
time period under the Rights Agreement; provided,
however, that no amendment to adjust the time period
governing redemption shall 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 a Registration Statement on Form 8-A dated
February 8, 1994. A copy of the Rights Agreement is
available free of charge from the Rights Agent. 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.
5
EXHIBIT 2
BERGEN BRUNSWIG CORPORATION NEWS RELEASE
4000 Metropolitan Drive, Orange, CA 92668 (714) 385-4000
CONTACT: Neil F. Dimick
Executive Vice President,
Chief Financial Officer
(714) 385-4000
BERGEN BRUNSWIG CORPORATION
ADOPTS SHAREHOLDER RIGHTS PLAN
Orange, California, Wednesday, February 9, 1994 -- The Board of
Directors of Bergen Brunswig Corporation (NYSE:BBC) today adopted
a Shareholder Rights Plan to assure shareowners fair value and
equal treatment in the event of any proposed takeover of the
Company.
The Company explained that the Shareholder Rights Plan was
similar to plans adopted by many other companies. Under the
Plan, a dividend of one Preferred Share Purchase Right was
declared for each share of Class A Common Stock, and 9.5285
Rights for each share of Class B Common Stock, in each case
outstanding at the close of business on February 18, 1994. No
separate certificates evidencing the Rights will be issued unless
and until they become exercisable.
The Rights will generally not be exercisable until ten days after
a person or group acquires 15% of Bergen Brunswig's Class A
Common Stock or announces a tender offer which could result in a
person or group owning 15% or more of the Class A Common Stock.
Should it become exercisable, a Right will entitle the holder to
buy 1/100th of a share of a new series of the Company's Series A
Junior Participating Preferred Stock at an exercise price of
$80.00.
In the event a third party or group were to acquire 15% or more
of Bergen Brunswig's outstanding Class A Common Stock without the
prior approval of the Board of Directors, each Right will entitle
the holder -- other than the acquiror -- to buy at the Right's
then current exercise price Class A Common Stock with a market
value of twice the exercise price. In addition, if at the time
when there was a 15% stockholder, the Company were to be acquired
by merger, shareowners with unexercised Rights could purchase
common stock of the acquiror with a value of twice the exercise
price of the Rights.
The Company's Board of Directors may redeem the Rights for $.01
per Right at any time prior to the acquisition by a person or a
group of 15% of the Company's Class A Common Stock. Unless
earlier redeemed, the Rights will expire on February 18, 2004.
Bergen Brunswig Corporation is the nation's largest supplier of
pharmaceuticals to hospitals and managed care facilities and is a
leading supplier to independent and chain pharmacies.
Exhibit Index is on Page 8
Page 1 of 138 Pages
Page 2 of 2
EXHIBIT 3
February 18, 1994
Dear Shareowner:
On February 8, 1994, your Board of Directors adopted a
Shareholder Rights Plan. This letter and the enclosed summary
are the only notification you will receive of the Rights Plan and
should be saved.
Our principal objective is to continue to build long-
term value for our shareowners. We believe that the Rights Plan
will further this objective by protecting your interests in the
event that Bergen Brunswig Corporation is confronted with unfair
or coercive takeover activities. The Rights Plan is intended to
insure that any prospective merger or business combination
transaction is presented directly to your Board of Directors, but
will not interfere with any transaction that your Board of
Directors approves as fair and favorable to all shareowners. The
Rights Plan was not adopted in response to any effort of which
the Company is aware to acquire control of the Company.
Under the Shareholder Rights Plan, you automatically
will become the owner of one Right for each share of Bergen
Brunswig Corporation Class A Common Stock and of 9.5285 Rights
for each share of Bergen Brunswig Corporation Class B Common
Stock, in each case held by you at the close of business on
February 18, 1994. Separate certificates representing the rights
will not be distributed unless and until the Rights become
exercisable under the circumstances described in the enclosed
summary. This distribution of Rights will not result in taxable
income to you.
Your Board and management are enthusiastic about the
potential for Bergen Brunswig Corporation and are committed to
serving the best interests of our shareowners. We take great
satisfaction in providing this Rights Plan to protect the value
of your investment in Bergen Brunswig Corporation.
If you have any question about the Shareholder Rights
Plan, please contact our Corporate Secretary, Milan A. Sawdei, at
(714) 385-4255.
Very truly yours,
