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FORM 8-A/A
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
AFFILIATED COMPUTER SERVICES, INC.
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(Exact name of registrant as specified in its charter)
Delaware 51-0310342
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(State of incorporation or organization) (I.R.S. Employer
Identification No.)
2828 North Haskell, Dallas 75204
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(Address of principal executive offices) (Zip Code)
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If this form relates to the If this form relates to the registration
registration of a class of debt of a class of debt securities and is to become
securities and is effective upon filing effective simultaneously with the effectiveness
pursuant to the General Instruction A(c)(1) of a concurrent registration statement under the
please check the following box. [ ] Securities Act of 1933 pursuant to General
Instruction A(c)(2) please check the
following box. [ ]
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Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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CLASS A COMMON STOCK, NEW YORK STOCK EXCHANGE
$.01 PAR VALUE
Securities to be registered pursuant to Section 12(g) of the Act:
None
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(Title of Class)
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Item 1. Description of Registrant's Securities to be Registered
On April 2, 1999, the Registrant amended and restated its Rights
Agreement originally adopted on August 5, 1997 (the "Rights Agreement") between
the Registrant and ChaseMellon Shareholder Services, L.L.C., as Rights Agent, to
change the rights agent to First City Transfer Company and to eliminate those
provisions that require that certain actions may only be taken by "Continuing
Directors" (as defined in the Rights Agreement). A copy of the Rights Agreement,
as amended and restated, is included as Exhibit 4.1 to this registration
statement and incorporated herein by reference.
ITEM 2. EXHIBITS
4.1 Amended and Restated Rights Agreement, dated as of April 2, 1999,
between Affiliated Computer Services, Inc. and First City
Transfer Company, as Rights Agent.
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SIGNATURES
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this amendment to the
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized.
AFFILIATED COMPUTER SERVICES, INC.
By: /s/ DAVID W. BLACK
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David W. Black, Executive Vice President
and General Counsel
Dated: May 14, 1999
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INDEX TO EXHIBITS
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EXHIBIT
NO. DESCRIPTION
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Exhibit 4.1 Amended and Restated Rights Agreement, dated as of
April 2, 1999, between Affiliated Computer Services,
Inc. and First City Transfer Company, as Rights Agent.
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EXHIBIT 4.1
AFFILIATED COMPUTER SERVICES, INC.
and
FIRST CITY TRANSFER COMPANY
as Rights Agent
FIRST AMENDED AND RESTATED
RIGHTS AGREEMENT
April 2, 1999
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Table of Contents
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Section Page
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1. CERTAIN DEFINITIONS 1
2. APPOINTMENT OF RIGHTS AGENT 5
3. ISSUE OF RIGHTS CERTIFICATES 5
4. FORM OF RIGHTS CERTIFICATES 7
5. COUNTERSIGNATURE AND REGISTRATION 7
6. TRANSFER, SPLIT UP, COMBINATION, AND EXCHANGE OF RIGHTS CERTIFICATES;
MUTILATED, DESTROYED, LOST, OR STOLEN RIGHTS CERTIFICATES 8
7. EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION DATE OF RIGHTS 9
8. CANCELLATION AND DESTRUCTION OF RIGHTS CERTIFICATES 11
9. RESERVATION AND AVAILABILITY OF CAPITAL STOCK 11
10. CLASS A COMMON STOCK RECORD DATE 13
11. ADJUSTMENT OF PURCHASE PRICE, NUMBER AND KIND OF SHARES, OR NUMBER OF RIGHTS 13
12. CERTIFICATE OF ADJUSTED PURCHASE PRICE OR NUMBER OF SHARES 20
13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS OR EARNING POWER 21
14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES 23
15. RIGHTS OF ACTION 24
16. AGREEMENT OF RIGHTS HOLDERS 24
17. RIGHTS CERTIFICATE HOLDER NOT DEEMED A STOCKHOLDER 25
18. CONCERNING THE RIGHTS AGENT 25
19. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT 26
20. DUTIES OF RIGHTS AGENT 27
21. CHANGE OF RIGHTS AGENT 29
22. ISSUANCE OF NEW RIGHTS CERTIFICATES 29
23. REDEMPTION AND TERMINATION 30
24. EXCHANGE 30
25. NOTICE OF CERTAIN EVENTS 32
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26. NOTICES 32
27. SUPPLEMENT AND AMENDMENTS 33
28. SUCCESSORS 34
29. DETERMINATIONS AND ACTIONS BY THE BOARD OF DIRECTORS, ETC 34
30. BENEFITS OF THIS AGREEMENT 34
31. SEVERABILITY 34
32. GOVERNING LAW 35
33. COUNTERPARTS 35
34. INTERPRETATION 35
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Exhibit A -- Form of Rights Certificate
Exhibit B -- Form of Summary of Rights
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RIGHTS AGREEMENT
FIRST AMENDED AND RESTATED RIGHTS AGREEMENT, dated as of April 2, 1999
(the "Agreement"), between Affiliated Computer Services, Inc., a Delaware
corporation (the "Company"), and First City Transfer Company (the "Rights
Agent").
BACKGROUND
On August 5, 1997 (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 $0.01 per share, of
the Company (the "Class A Common Stock") and of one Right for each share of
Class B common stock, par value, $.01 per share, of the Company (the "Class B
Common Stock"), each as outstanding at the Close of Business on August 25, 1997
(the "Record Date"), and has authorized the issuance of one Right (as such
number may be adjusted pursuant to the provisions of SECTION 11(P)) for each
share of Class A Common Stock and Class B Common Stock 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 share of Class A Common Stock of the Company upon the terms and subject to
the conditions set forth below (the "Rights");
The Board of Directors has authorized an amendment of this Agreement so
that it will comply with recent changes in Delaware law.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth in this Agreement, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the
following terms have the meanings indicated:
(a) "Act" means the Securities Act of 1933, as amended.
(b) "Acquiring Person" means any Person that, together with
all Affiliates and Associates of such Person, is the Beneficial Owner
of 15% or more of the shares of Class A Common Stock then outstanding,
but does not include (i) the Company; (ii) any Subsidiary of the
Company; (iii) any employee benefit plan of the Company or of any
Subsidiary of the Company; (iv) any Person organized, appointed, or
established by the Company for or pursuant to the terms of any such
plan; (v) any Person that becomes an Acquiring Person pursuant to a
Permitted Transaction; (vi) any Person that has become an Acquiring
Person inadvertently and, within five Business Days of being requested
by the Company to advise it regarding the same, certifies to the
Company that such Person acquired beneficial ownership of shares of
Class A Common Stock in excess of 14.9% inadvertently or without
knowledge of the terms of the Rights and such certification is
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accepted as true by action of the Board of Directors (including a
majority of the Directors not in association with an Acquiring Person)
acting in good faith, and such Person divests as promptly as
practicable a sufficient amount of Class A Common Stock so that such
Person would no longer hold in excess of 14.9% of the Class A Common
Stock then outstanding; (vii) any Person that becomes an Acquiring
Person solely as a result of a reduction in the number of outstanding
shares of Class A Common Stock in a transaction that is approved by
action of the Board of Directors (including a majority of the Directors
not in association with an Acquiring Person), provided that such Person
will immediately be an Acquiring Person in the event such Person
thereafter acquires any additional shares of Class A Common Stock
(other than as a result of a stock split or stock dividend) while the
Beneficial Owner of 15% or more of the shares of Class A Common Stock
then outstanding; or (viii) Darwin Deason, The Deason International
Trust or any of their Affiliates.
(c) "Affiliate" and "Associate" have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Exchange Act and in effect on the date of this
Agreement.
(d) A Person will be deemed the "Beneficial Owner" of, and
will be deemed to "beneficially own," any securities that:
(i) 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 or upon the occurrence of certain events)
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 will 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, (B) securities issuable upon exercise of
Rights at any time prior to the occurrence of a Distribution
Date, or (C) securities issuable upon exercise of Rights,
which were acquired by such Person or any of such Person's
Affiliates or Associates prior to the Distribution Date or
pursuant to SECTION 3(a) or SECTION 22 (the "Original Rights")
or pursuant to SECTION 11(I) in connection with an adjustment
made with respect to any Original Rights;
(ii) 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 will not be deemed the
"Beneficial Owner" of, or to "beneficially own," any security
under this SECTION 1(c)(ii) as a result of an agreement,
arrangement, or understanding to vote such security if such
agreement, arrangement, or
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understanding: (1) arises solely from a revocable proxy given
in response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable provisions
of the General Rules and Regulations under the Exchange Act,
and (2) is not also then reportable by such Person on Schedule
13D under the Exchange Act (or any comparable or successor
report); or
(iii) are beneficially owned, directly or indirectly, by any
other Person (or any Affiliate or Associate of such Person)
with which such Person (or any of such Person's Affiliates or
Associates) has any agreement, arrangement, or understanding
(whether or not in writing), for the purpose of acquiring,
holding, voting (except pursuant to a revocable proxy as
described in the proviso in SECTION 1(c)(ii)), or disposing of
any voting securities of the Company;
provided, however, that nothing in this SECTION 1(c) will 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 bona
fide firm commitment underwriting until the expiration of forty days
after the date of such acquisition.
(e) "Board of Directors" means the Board of Directors of the
Company.
(f) "Business Day" means 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.
(g) "Close of Business" on any given date will mean 5:00 p.m.,
New York, New York time, on such date; provided, however, that if such
date is not a Business Day it will mean 5:00 p.m., New York, New York
time, on the next succeeding Business Day.
(h) "Common Stock" means the Class A common stock, par value
$0.01 per share, of the Company, or the Class B common stock, par value
$0.01 per share, of the Company, as the case may be; "Common Stock"
when used with reference to any Person other than the Company will 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.
(i) "Distribution Date" means the Close of Business on the
tenth Business Day after the earlier to occur of (i) the Stock
Acquisition Date or (ii) the date any Person commences or publicly
announces an intention to commence a tender offer or exchange offer for
the Class A Common Stock which would result in, upon the consummation
of such offer, the Person making such offer, together with all of its
Affiliates and Associates, being the Beneficial Owner of 15% or more of
the Class A Common Stock then outstanding (including any such date that
is after the date of this Agreement and prior to the issuance of the
Rights); provided, however, that if the tender offer or exchange offer
that gave rise to the Distribution Date is cancelled, terminated or
otherwise withdrawn
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within ten Business Days of its announcement, such offer shall be
deemed never to have been made and no Distribution Date shall occur
with respect thereto.
(j) "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
(k) "Permitted Transaction" means a stock acquisition or a
tender or exchange offer pursuant to a definitive agreement by which a
Person (who is not at the time an Acquiring Person) would become an
Acquiring Person and which has been approved by action of the Board of
Directors (including a majority of the Directors not in association
with an Acquiring Person) prior to the execution of the definitive
agreement providing for the acquisition or the public announcement of
the offer, as the case may be.
(l) "Person" means any individual, firm, corporation,
partnership, limited liability company or other public or private
entity.
(m) "Redemption Price" with respect to each Right means $0.01,
as such amount may from time to time be adjusted in accordance with
SECTION 11. All references herein to the Redemption Price means the
Redemption Price as in effect at the time in question.
(n) "Rights Shares" means the shares of Class A Common Stock
issuable or issued upon the exercise of the Rights.
(o) "Section 11(a)(ii) Event" means any event described in
SECTION 11(a)(ii).
(p) "Section 13 Event" means any event described in clauses
(i), (ii), or (iii) of SECTION 13(a).
(q) "Stock Acquisition Date" means the first date of public
announcement (which, for purposes of this definition, will include,
without limitation, a report filed pursuant to ss. 13(d) under the
Exchange Act) by the Company or an Acquiring Person that an Acquiring
Person has become an Acquiring Person.
(r) "Subsidiary" means, with reference to any Person, any
entity of which an amount of voting securities sufficient to elect at
least a majority of the directors or similar Persons of such entity is
beneficially owned, directly or indirectly, by such Person, or
otherwise controlled by such Person.
(s) "Trading Day" means a day on which the principal national
securities exchange or quotation system 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.
(t) "Triggering Event" means any Section 11(a)(ii) Event or
any Section 13 Event.
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Section 2. Appointment of Rights Agent. The Company hereby appoints the
Rights Agent to act as agent for the Company in accordance with the terms and
conditions of this Agreement, and the Rights Agent hereby accepts such
appointment. The Company may from time to time appoint such Co-Rights Agents as
it may deem necessary or desirable.
Section 3. Issue of Rights Certificates.
(a) Prior to the Distribution Date, (i) the Rights will be
evidenced (subject to the provisions of this SECTION 3(B)) by the
certificates for the Class A Common Stock and/or Class B Common Stock,
as the case may be, registered in the names of the holders of the Class
A Common Stock and/or Class B Common Stock, as the case may be, (which
certificates for Class A Common Stock and/or Class B Common Stock, as
the case may be, will be deemed also to be certificates for Rights) and
not by separate certificates, and (ii) the Rights will be transferable
only in connection with the transfer of the underlying shares of Common
Stock (Class A Common Stock or the Class B Common Stock, as the case
may be, 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 and/or
Class B Common Stock, as the case may be, Common Stock and/or Class B
Common Stock, as the case may be, as of the Distribution Date, at the
address of such holder shown on the records of the Company, one or more
rights certificates, in substantially the form of EXHIBIT A (the
"Rights Certificates"), evidencing one Right for each share of Class A
Common Stock and/or Class B Common Stock, as the case may be, so held,
subject to adjustment as provided in this Agreement. In the event that
an adjustment in the number of Rights per share of Class A Common Stock
and/or Class B Common Stock, as the case may be, has been made pursuant
to SECTION 11(p), at the time of distribution of the Rights
Certificates, the Company will make the necessary and appropriate
rounding adjustments (in accordance with SECTION 14(A)) 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 soon as practicable following the Record Date, the
Company will send a copy of a Summary of Rights, in substantially the
form of EXHIBIT B, by first-class, postage prepaid mail, to each record
holder of the Class A Common Stock and/or Class B Common Stock, as the
case may be, 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 Class A Common Stock and/or Class B
Common Stock, as the case may be, outstanding as of the Record Date,
until the Distribution Date, the Rights will be evidenced by such
certificates for the Class A Common Stock and/or Class B Common Stock,
as the case may be, and the registered holders of the Class A Common
Stock and/or Class B Common Stock, as the case may be, will also be the
registered holders of the associated Rights. Until the earlier of the
Distribution Date or the Expiration Date (as defined in SECTION 7), the
transfer of any certificates representing shares of Class A
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Common Stock and/or Class B Common Stock, as the case may be, in
respect of which Rights have been issued will also constitute the
transfer of the Rights associated with such shares of Class A Common
Stock and/or Class B Common Stock, as the case may be.
(c) Rights will be issued in respect of all shares of Class A
Common Stock and/or Class B Common Stock, as the case may be, that 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 Class A
Common Stock and/or Class B Common Stock, as the case may be, will also
be deemed to be certificates for Rights, and will bear the following
legend:
THIS CERTIFICATE ALSO EVIDENCES AND ENTITLES THE HOLDER TO
CERTAIN RIGHTS AS SET FORTH IN THE RIGHTS AGREEMENT BETWEEN
AFFILIATED COMPUTER SERVICES, INC. (THE "COMPANY") AND FIRST
CITY TRANSFER COMPANY (THE "RIGHTS AGENT") DATED AS OF AUGUST
11, 1997 (AS AMENDED FROM TIME TO TIME, THE "RIGHTS
AGREEMENT"), THE TERMS OF WHICH ARE HEREBY INCORPORATED IN
THIS CERTIFICATE BY REFERENCE AND A COPY OF WHICH IS ON FILE
AT THE PRINCIPAL OFFICES OF THE COMPANY. UNDER CERTAIN
CIRCUMSTANCES, AS SET FORTH IN THE RIGHTS AGREEMENT, SUCH
RIGHTS WILL BE EVIDENCED BY SEPARATE CERTIFICATES AND WILL NO
LONGER BE EVIDENCED BY THIS CERTIFICATE. THE COMPANY WILL MAIL
TO THE HOLDER OF THIS CERTIFICATE A COPY OF THE RIGHTS
AGREEMENT, AS IN EFFECT ON THE DATE OF MAILING, WITHOUT CHARGE
PROMPTLY AFTER RECEIPT OF A WRITTEN REQUEST. UNDER CERTAIN
CIRCUMSTANCES SET FORTH IN THE RIGHTS AGREEMENT, RIGHTS
BENEFICIALLY OWNED BY ANY PERSON WHO IS, WAS, OR BECOMES AN
ACQUIRING PERSON OR ANY AFFILIATE OR ASSOCIATE OF AN ACQUIRING
PERSON (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 the shares of Class A Common Stock and/or
Class B Common Stock, as the case may be, issued after the Record Date,
until the earlier of (i) the Distribution Date or (ii) the Expiration
Date, the Rights associated with the Class A Common Stock and/or Class
B Common Stock, as the case may be, represented by such certificates
will be evidenced by such certificates alone and registered holders of
Class A Common Stock and/or Class B Common Stock, as the case may be,
will also be the registered holders of the associated Rights, and the
transfer of any of such certificates will also constitute the transfer
of the Rights associated with the Class A Common Stock and/or Class B
Common Stock, as the case may be, represented by such certificates.
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(d) With respect to Rights associated with shares of Class B
Common Stock, such Rights shall be automatically extinguished and
terminated to the extent the associated shares of Class B Common Stock
are converted into shares of Class A Common Stock, and upon such
conversion into Class A Common Stock, Rights are issued in association
with such Class A Common Stock. In this regard, upon conversion of
Class B Common Stock into Class A Common Stock in accordance with the
provisions of the Class B Common Stock, a Right shall be issued
associated with such Class A Common Stock in lieu of the Right
associated with the converted Class B Common Stock, which Right
extinguished and terminated in accordance with the immediately
preceding sentence.
Section 4. Form of Rights Certificates.
The Rights Certificates (and the forms of election to
purchase and of assignment to be printed on the reverse of the rights
certificates) will each be substantially in the form set forth in
EXHIBIT A and may have such marks of identification or designation and
such legends, summaries, or endorsements as the Company may deem
appropriate and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any applicable law or
with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange or quotation system 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, the Rights
Certificates, whenever distributed, will be dated as of the Record Date
and on their face will entitle the holders of such Rights Certificates
to purchase such number of shares of Class A Common Stock as is set
forth in such Rights Certificates at the price set forth in such Rights
Certificates (such exercise price per share, the "Purchase Price"), but
the amount and type of securities purchasable upon the exercise of each
Right and the Purchase Price will be subject to adjustment as provided
in this Agreement.
Section 5. Countersignature and Registration.
(a) The Rights Certificates will be executed on behalf of the
Company by its Chairman of the Board, its Chief Executive Officer, its
Chief Operating Officer, its President, or any Executive Vice
President, either manually or by facsimile signature, will have affixed
thereto the Company's seal or a facsimile thereof, and will be attested
by the Secretary or an Assistant Secretary of the Company, either
manually or by facsimile signature. The Rights Certificates will be
countersigned by the Rights Agent, either manually or by facsimile
signature and will not be valid for any purpose unless so
countersigned. In case any officer of the Company who has signed any of
the Rights Certificates ceases 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
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Certificates had not ceased to be such officer of the Company, and any
Rights Certificate may be signed on behalf of the Company by any Person
who, at the actual date of the execution of such Rights Certificate, is
a proper officer of the Company to sign such Rights Certificate,
although at the date of the execution of this Rights Agreement any such
Person was not such an officer.
(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 under this Agreement. Such books will show the
names and addresses of the respective holders of the Rights
Certificates, the number of Rights evidenced on the face 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 7(e) and SECTION 14,
at any time after the Distribution Date, and at or prior to the
Expiration Date, any Rights Certificate or Certificates may be
transferred, split up, combined, or exchanged for another Rights
Certificate or Rights Certificates, entitling the registered holder to
purchase a like number of Rights Shares (or, following a Triggering
Event, preferred stock, other 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 Rights Certificates will
make such request in writing delivered to the Rights Agent, and will
surrender the Rights Certificate or Rights 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 will be obligated to take any action
whatsoever with respect to the transfer of any such surrendered Rights
Certificate until the registered holder has completed and signed the
certificate contained in the form of assignment on the reverse side of
such Rights Certificate and has provided such additional evidence of
the identity of the Beneficial Owner (or former Beneficial Owner) or
Affiliates or Associates thereof as the Company requests in good faith.
Thereupon, the Rights Agent will, subject to SECTION 4, SECTION 7(e)
and SECTION 14, countersign and deliver to the Person entitled thereto
a Rights Certificate or Rights Certificates, as the case may be, as so
requested. The Company may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with
any transfer, split up, combination, or exchange of any Rights
Certificate.
(b) Upon receipt by the Company and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft,
destruction, or mutilation of a Rights Certificate, and, in case of
loss, theft, or destruction, of indemnity or security satisfactory to
them, and reimbursement to the Company and the Rights Agent of all
reasonable
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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), the registered holder of any
Rights Certificate may exercise the Rights evidenced thereby (except as
otherwise provided in this Agreement including, without limitation, the
restrictions on exercisability set forth in SECTION 9(c), SECTION
11(a)(iii), SECTION 23(a) and SECTION 24) 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 of the Rights Certificate 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 for each share of Class A Common Stock (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 August 25, 2007, (the "Final Expiration
Date"), (ii) the time at which the Rights are redeemed as provided in
SECTION 23 or (iii) the time at which such rights are exchanged as
provided in SECTION 24 (the earlier of the times, the "Expiration
Date")).
(b) The Purchase Price for each share of Class A Common Stock
pursuant to the exercise of a Right will initially be $150.00, subject
to adjustment from time to time as provided in SECTION 11, and SECTION
13(a). The Purchase Price will be payable in accordance with SECTION
7(c).
(c) Upon receipt of a Rights Certificate representing
exercisable Rights, with the form of election to purchase and the
certificate duly executed, accompanied by payment of the Purchase Price
for the shares of Class A Common Stock (or other shares, securities,
cash or other assets, as the case may be) to be purchased and an amount
equal to any applicable transfer tax, the Rights Agent will, subject to
SECTION 20(k), promptly (i) (A) requisition from any transfer agent of
the shares of Class A Common Stock (or make available, if the Rights
Agent is the transfer agent for such shares) certificates for the total
number of shares of Class A Common Stock to be purchased (the Company
hereby irrevocably authorizing its transfer agent to comply with all
such requests) or (B) if the Company has elected to deposit the shares
of Class A Common Stock with a depository agent, requisition from the
depository agent depository receipts representing such number of shares
of Class A Common Stock as are to be purchased (in which case
certificates for the shares of Class A Common Stock represented by such
receipts will be deposited by the transfer agent with the depository
agent) and the Company will direct the depository agent to comply with
such request; (ii) requisition from the Company the amount of cash, if
any, to be paid in lieu of fractional shares in accordance with SECTION
14; (iii) after receipt of such certificates or depository receipts,
cause such certificates or depository receipts 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;
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<PAGE> 13
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)) will 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, or distribute other property
pursuant to SECTION 11(a), the Company will make all arrangements
necessary so that such other securities, cash, 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 Common Stock
would be issued.
(d) If the registered holder of any Rights Certificate
exercises less than all the Rights evidenced by such certificate, a new
Rights Certificate evidencing the unexercised Rights will 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.
(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 any Person referred to in
CLAUSES (i) through (iii) below will become null and void without any
further action and no holder of such Rights will have any rights
whatsoever with respect to such Rights, under any provision of this
Agreement or otherwise: (i) an Acquiring Person or an Associate or
Affiliate of an Acquiring Person, (ii) a transferee from an Acquiring
Person (or from any Associate or Affiliate of an Acquiring Person) that
becomes a transferee after the Acquiring Person becomes such, or (iii)
a transferee from an Acquiring Person (or of any such Associate or
Affiliate) that becomes a transferee prior to or concurrently with the
Acquiring Person becoming such and receives such Rights pursuant to
either (A) a transfer (whether or not for consideration) from the
Acquiring Person to holders of equity interests in such Acquiring
Person or to any Person with whom the Acquiring Person has any
continuing agreement, arrangement, or understanding regarding the
transferred Rights or (B) a transfer that the Board of Directors of the
Company has determined is part of an agreement, plan, arrangement, or
understanding that has as a substantial purpose or effect the avoidance
of this SECTION 7(e). The Company will use reasonable efforts to insure
that the provisions of this SECTION 7(e) and SECTION 4(b) are complied
with, but will have no liability under this Agreement 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 any of its
Affiliates, Associates, or transferees.
(f) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Company will 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 has (i) completed and signed the
certificate contained in the form of election to purchase set forth on
the reverse side of the Rights
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<PAGE> 14
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
requests in good faith.
Section 8. Cancellation and Destruction of Rights Certificates. All
Rights Certificates surrendered for the purpose of exercise, transfer, split up,
combination or exchange (or in connection with conversion of Class B Common
Stock into Class A Common Stock) will, 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, will be cancelled by it, and no
Rights Certificates will be issued in lieu thereof except as expressly permitted
by any of the provisions of this Agreement. The Company will deliver to the
Rights Agent for cancellation and retirement, and the Rights Agent will so
cancel and retire, any other Rights Certificate purchased or acquired by the
Company otherwise than upon the exercise thereof. The Rights Agent will deliver
all cancelled Rights Certificates to the Company, or will, at the written
request of the Company, destroy such cancelled Rights Certificates, and in such
case will deliver a certificate of destruction to the Company.
Section 9. Reservation and Availability of Capital Stock.
(a) The Company will use its best efforts to reserve and keep
available out of its authorized and unissued shares of Class A Common
Stock (and/or or other securities) or its authorized and issued shares
of Class A Common Stock (and/or or other securities) held in its
treasury, the number of shares of Class A Common Stock (and/or other
securities) that will be sufficient to permit the exercise in full of
all outstanding Rights.
(b) So long as the shares of Class A Common Stock (and,
following the occurrence of a Triggering Event, Common Stock or other
securities) issuable and deliverable upon the exercise of the Rights
may be listed on any national securities exchange or automated
quotation system, the Company will use its reasonable efforts to cause,
from and after such time as the Rights become exercisable, all shares
reserved for such issuance to be listed on such exchange or automated
quotation system upon official notice of issuance upon such exercise.
(c) The Company will use its best efforts to (i) file, as soon
as practicable following 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), a registration statement under the Act, with respect to the
securities purchasable upon exercise of the Rights or issued in an
exchange pursuant to SECTION 24 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 Expiration Date.
The Company will also take such action as may be appropriate under, or
to ensure compliance with, the applicable state securities laws in
connection with the exercisability of the Rights. The Company may
temporarily
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<PAGE> 15
suspend, for up to 90 days after the date described in CLAUSE (i) 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 will 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 no longer remains in effect. In addition, if the Company
determines 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 will not be exercisable in
any jurisdiction if the requisite qualification in such jurisdiction
has not been obtained, the exercise of such Rights is not permitted
under applicable law, or a registration statement has not been declared
effective.
(d) The Company covenants and agrees that it will take all
such action as may be necessary to ensure that all shares of Class A
Common Stock (and/or other securities) delivered upon exercise of
Rights will, at the time of delivery of the certificates for such
shares upon 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 that may be payable in respect of the issuance or delivery of
the Rights Certificates and any Class A Common Stock or other
certificates issued upon the exercise of Rights. The Company will not,
however, be required to pay any transfer tax that may be payable in
respect of any transfer or delivery of Rights Certificates to a Person
other than, or the issuance or delivery of Class A Common Stock (or
other securities, as the case may be) in respect of a name other than
that of the registered holder of the Rights Certificates or to issue or
deliver any Class A Common Stock or other certificates in a name other
than that of the registered holder until such tax has 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. Class A Common Stock Record Date. Each Person in whose name
any Rights Share certificate is issued will, for all purposes, be deemed to have
become the record holder of such Rights Shares represented thereby, and such
certificate will be dated, on 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 Class A Common Stock
(other securities, as the case may be) transfer books of the Company are closed,
such Person will be deemed to have become the record holder of the Rights Shares
on, and such certificate will be dated, the next succeeding Business Day on
which the Class A Common Stock (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 Rights Certificate holders will not be entitled to any
stockholder rights with respect to Rights Shares, including, without limitation,
the right to vote, to receive dividends or other distributions, or to exercise
any preemptive rights, and will not be
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<PAGE> 16
entitled to receive any notice of any proceedings of the Company, except as
provided in this Agreement.
Section 11. Adjustment of Purchase Price, Number and Kind of Shares, or
Number of Rights. The Purchase Price, the number and kind of shares covered by
each Right and the number of Rights outstanding are subject to adjustment from
time to time as provided in this SECTION 11.
(a) (i) In the event the Company at any time after the date of
this Agreement (A) declares a dividend on the Class A Common
Stock payable in shares of Class A Common Stock, (B)
subdivides the outstanding Class A Common Stock, (C) combines
the outstanding Class A Common Stock into a smaller number of
shares, or (D) issues any shares of its capital stock in a
reclassification of the Class A Common Stock (including,
without limitation, 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), 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 Class A Common Stock or capital stock, as the case
may be, issuable on such date, will be proportionately
adjusted so that the holder of any Right exercised after such
time will be entitled to receive, upon payment of the Purchase
Price then in effect, the aggregate number and kind of shares
of Class A Common Stock or capital stock, as the case may be,
that, if such Right had been exercised immediately prior to
such date and at a time when the Class A Common Stock transfer
books of the Company were open, such holder would have owned
upon such exercise and been entitled to receive by virtue of
such dividend, subdivision, combination, or reclassification.
If an event occurs that would require an adjustment under both
this SECTION 11(a)(i) and SECTION 11(a)(ii), the adjustment
provided for in this SECTION 11(a)(i) will be in addition to,
and will be made prior to, any adjustment required pursuant to
SECTION 11(a)(ii). In the event that any event referred to in
this SECTION 11 occurs with respect to the Class B Common
Stock, an appropriate adjustment will be made with respect to
the Rights associated with such Class B Common Stock.
(ii) In the event that any Person, alone or together with its
Affiliates and Associates, at any time after the Rights
Dividend Declaration Date, becomes an Acquiring Person, then,
proper provision will be made so that each Right holder
(except as provided in SECTION 7(e)) will thereafter have the
right to receive, upon exercise of such Right at the then
current Purchase Price in accordance with the terms of this
Agreement, such number of Rights Shares equal to the result
obtained by (x) multiplying the then current Purchase Price by
the then number of Rights Shares for which a Right is then
exercisable and (y) dividing that product by 50% of the
Current Market Price (defined in SECTION 11(d)) per share of
Class A Common Stock on the date such Person became an
Acquiring Person (such number of Rights Shares, the
"Adjustment Shares").
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<PAGE> 17
(iii) In the event that the number of shares of Class A Common
Stock that are authorized by the Company's certificate of
incorporation but not issued, or issued but not outstanding,
are not sufficient to permit the exercise in full of the
Rights in accordance with SECTION 11(a)(ii), the Company will,
upon the exercise of a Right and payment of the applicable
Purchase Price, (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)), make adequate provision to substitute for the
Adjustment Shares (1) cash, (2) a reduction in the Purchase
Price, (3) other equity securities of the Company (including,
without limitation, shares, or units of shares, of preferred
stock), that the Board of Directors has deemed to have
essentially the same rights, privileges and preferences as
shares of Class A Common Stock ("Class A Common Stock
Equivalents")), (4) debt securities of the Company, (5) other
assets, or (6) any combination of the foregoing, having an
aggregate value equal to the Current Value, where such
aggregate value has been conclusively determined by the Board
of Directors based upon the advice of a nationally recognized
investment banking firm; provided, however, that if the
Company has not made adequate provision to deliver value
pursuant to CLAUSE (B) above within 30 days following the
first occurrence of a Section 11(a)(ii) Event, then the
Company will 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 or cash
have an aggregate value equal to the Spread. The term "Spread"
means the excess of (i) the Current Value over (ii) the
Purchase Price. If the Board of Directors 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 30-day period set forth
above may be extended to the extent necessary, but not more
than 90 days after the Section 11(a)(ii) Trigger Date, in
order that the Company may seek stockholder approval for the
authorization of such additional shares (such 30-day period,
as it may be extended, being the "Substitution Period"). To
the extent that action is to be taken pursuant to this SECTION
11(a)(iii), the Company (1) will provide, subject to SECTION
7(e), that such action will 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 any required stockholder approval or to decide the
appropriate form of distribution to be made and the value
thereof. In the event of any such suspension, the Company will
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 no longer remains
in effect. For purposes of this SECTION 11(a)(iii), the
Current Value of each Adjustment Share will be the Current
Market Price per share of the Class A Common Stock on the
effective date of the Section 11(a)(ii) Event and the per
share or per unit value of any Class A Common Stock Equivalent
will be deemed to equal the Current Market Price per share of
the Common Stock on such date.
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(b) In case the Company fixes a record date for the issuance
of rights, options or warrants to all holders of Class A Common Stock
entitling them to subscribe for or purchase (for a period expiring
within 45 calendar days after such record date) Class A Common Stock
(and/or Class A Common Stock Equivalents) (or securities convertible
into Class A Common Stock) at a price per share of Class A Common Stock
(or having a conversion price per share, if a security convertible into
Class A Common Stock) less than the Current Market Price per share of
Class A Common Stock on such record date, the Purchase Price to be in
effect after such record date will be determined by multiplying the
Purchase Price in effect immediately prior to such record date by a
fraction, (i) the numerator of which is the number of shares of Class A
Common Stock outstanding on such record date, plus the number of shares
of Class A Common Stock that the aggregate offering price of the total
number of shares of Class A Common Stock (and/or Class A Common Stock
Equivalents) so to be offered (or the aggregate initial conversion
price of the convertible securities so to be offered) would purchase at
such Current Market Price, and (ii) the denominator of which is the
number of shares of Class A Common Stock outstanding on such record
date, plus the number of additional shares of Class A Common Stock
(and/or Class A Common Stock Equivalents) to be offered for
subscription or purchase (or into which the convertible securities so
to be offered are initially convertible). In the event that the number
of shares of Class A Common Stock issuable under the terms of a
convertible security, or the conversion or exercise price of such
convertible security, changes after the initial issuance of such
convertible security, an adjustment will be made to the Purchase Price
that conforms with the adjustment set forth in this SECTION 11(b). 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 will be as conclusively determined in good faith by
the Board of Directors of the Company, whose determination will be
described in a statement filed with the Rights Agent and will be
binding on the Rights Agent and the holders of the Rights. Shares of
Class A Common Stock owned by or held for the account of the Company
will be deemed not to be outstanding for the purpose of any such
computation. Such adjustment will 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 will be adjusted to be the Purchase
Price that would then be in effect if such record date had not been
fixed.
(c) In case the Company fixes a record date for a distribution
to all holders of Class A Common 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 Class A Common Stock, but including any dividend payable in
stock other than Class A Common Stock) or subscription rights or
warrants (excluding those referred to in SECTION 11(b)), the Purchase
Price to be in effect after such record date will be determined by
multiplying the Purchase Price in effect immediately prior to such
record date by a fraction, (i) the numerator of which is the Current
Market Price per share of Class A Common Stock on such record date,
less the fair market value (as conclusively
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<PAGE> 19
determined in good faith by the Board of Directors of the Company,
whose determination will 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 Class A Common Stock and (ii) the
denominator of which is such Current Market Price per share of Class A
Common Stock. Such adjustments will be made successively whenever such
a record date is fixed, and in the event that such distribution is not
so made, the Purchase Price will be adjusted to be the Purchase Price
that would have been in effect if such record date had not been fixed.
(d) The "Current Market Price" per share of Class A Common
Stock on any date will be deemed to be the average of the daily closing
prices per share of such Class A Common Stock for the 30 consecutive
Trading Days immediately prior to 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 (i) 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 (ii) 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, combination, or reclassification has not occurred prior to
the commencement of the requisite 30 Trading Day period, as set forth
above, then, and in each such case, the Current Market Price will be
properly adjusted to take into account ex-dividend trading. The closing
price for each day will be the last sale price, regular way, or, in
case no such sale takes place on such day, the average of the closing
bid and asked prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock Exchange
or, if the shares of 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 NASDAQ 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 of Directors.
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 a nationally recognized investment banking firm will
be used. If the Class A Common Stock is not publicly held or not so
listed or traded, Current Market Price per share will mean the fair
value per share as determined in good faith by a nationally recognized
investment banking firm, the determination of which will be described
in a statement filed with the Rights Agent and will be conclusive for
all purposes.
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<PAGE> 20
(e) Anything in this Agreement to the contrary
notwithstanding, no adjustment in the Purchase Price will 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 that by reason of this SECTION 11(e) are not required
to be made will be carried forward and taken into account in any
subsequent adjustment. All calculations under this SECTION 11 will be
made to the nearest cent or to the nearest one-hundredth of a share of
Class A Common Stock. Notwithstanding the first sentence of this
SECTION 11(e), any adjustment required by this SECTION 11 will be made
no later than the earlier of (i) three (3) years from the date of the
transaction that mandates such adjustment or (ii) the Final Expiration
Date.
(f) If, as a result of an adjustment made pursuant to SECTION
11(a)(ii) or SECTION 13(a), the holder of any Right thereafter
exercised becomes entitled to receive any shares of capital stock other
than Class A Common Stock, then the number of such other shares so
receivable upon exercise of any Right and the Purchase Price will 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
Class A Common Stock contained in SECTIONS 11(a), (b), (c), (e), (g),
(h), (i), (j), (k), (m), and (q) and the provisions of SECTIONS 7, 9,
10, 13, and 14 with respect to the Class A Common Stock will 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 under this Agreement will
evidence the right to purchase, at the adjusted Purchase Price, the
number of Rights Shares purchasable from time to time under this
Agreement, all subject to further adjustment as provided in this
Agreement.
(h) Unless the Company has 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 will
thereafter evidence the right to purchase, at the adjusted Purchase
Price, that number of Rights Shares (calculated to the nearest
one-hundredth) obtained by (i) multiplying (x) the number of Rights
Shares 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 Rights Shares purchasable upon
the exercise of a Right. Each of the Rights outstanding after such an
adjustment in the number of Rights will be exercisable for the number
of Rights Shares 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 will become that number of Rights (calculated to
the nearest one-hundredth) 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
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<PAGE> 21
Company will 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,
will be at least ten Business 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 will, 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, the additional Rights
to which such holders are entitled as a result of such adjustment, or,
at the option of the Company, will 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 are
entitled after such adjustment. Rights Certificates so to be
distributed will be issued, executed, and countersigned in the manner
provided for in this Agreement (and may bear, at the option of the
Company, the adjusted Purchase Price) and will 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 Rights Shares, the Rights Certificates theretofore and
thereafter issued may continue to express the Purchase Price per Rights
Shares and the number of Rights Shares that were expressed in the
initial Rights Certificates issued under this Agreement.
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below the then stated value, if any, of the
number of Rights Shares, the Company will take any corporate action
that may, in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue such number of fully paid and
nonassessable Rights Shares at such adjusted Purchase Price.
(l) In any case in which this SECTION 11 requires 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 Rights Shares and other
capital stock or securities of the Company, if any, issuable upon such
exercise over and above the number of Rights Shares 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 will 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 will 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 its good
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<PAGE> 22
faith judgment, the Board of Directors of the Company determines it to
be advisable in order that any (i) consolidation or subdivision of the
Class A Common Stock, (ii) issuance wholly for cash of any shares of
Class A Common Stock at less than the current market price, (iii)
issuance wholly for cash of shares of Class A Common Stock or
securities that by their terms are convertible into or exchangeable for
shares of Common Stock and/or its Class B Common 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
Class A Common Stock and/or its Class B Common Stock will not be
taxable to such stockholders.
(n) The Company covenants and agrees that it will not, at any
time after the Distribution Date, (i) consolidate with any other Person
(other than a Subsidiary of the Company in a transaction that complies
with SECTION 11(o)), (ii) merge with, from, or into any other Person
(other than a Subsidiary of the Company in a transaction that complies
with SECTION 11(o)), 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 or any of its Subsidiaries in one or more transactions each of
which complies with SECTION 11(o)), 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 that could reasonably be expected to 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 stockholders of the Person
that constitutes, or would constitute, the "Principal Party" for
purposes of SECTION 13(a) has 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, 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) Notwithstanding anything in this Agreement to the
contrary, in the event that the Company at any time after the Rights
Dividend Declaration Date and prior to the Distribution Date (i)
declares a dividend on the outstanding shares of Class A Common Stock
or Class B Common Stock, as the case may be, payable in shares of Class
A Common Stock or Class B Common Stock, as the case may be, (ii)
subdivides the outstanding shares of Class A Common Stock, or Class B
Common Stock, as the case may be, or (iii) combines the outstanding
shares of Class A Common Stock or Class B Common Stock, as the case may
be, into a smaller number of shares, the number of Rights associated
with each share of Class A Common Stock or Class B Common Stock, as the
case may be, then outstanding, or issued or delivered thereafter but
prior to the Distribution Date, will be appropriately and
proportionately adjusted so that the number
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of Rights thereafter associated with each share of Class A Common Stock
or Class B Common Stock, as the case may be, following any such event
will equal the result obtained by multiplying the number of Rights
associated with each share of Class A Common Stock or Class B Common
Stock, as the case may be, immediately prior to such event by a
fraction the numerator of which is the total number of shares of Class
A Common Stock or Class B Common Stock, as the case may be, outstanding
immediately prior to the occurrence of the event and the denominator of
which is the total number of shares of Class A Common Stock or Class B
Common Stock, as the case may be, outstanding immediately following the
occurrence of such event.
(q) In the event that the Rights become exercisable following
a Section 11(a)(ii) Event, the Company, by action of the Board of
Directors, may permit the Rights, subject to SECTION 7(e), to be
exercised for 50% of the shares of Class A Common Stock (or cash or
other securities or assets to be substituted for the Adjustment Shares
pursuant to SECTION 11(a)(iii)) that would otherwise be purchasable
under SECTION 11(a) in consideration of the surrender to the Company of
the Rights so exercised and without other payment of the Purchase
Price. Rights exercised under this SECTION 11(q) will be deemed to have
been exercised in full and will be cancelled.
Section 12. Certificate of Adjusted Purchase Price or Number of Shares.
Whenever an adjustment is made as provided in SECTION 11 or SECTION 13, the
Company will (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 Class A Common
Stock and for the Class B 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
Class A Common Stock and/or Class B Common Stock, as the case may be) in
accordance with SECTION 25. The Rights Agent will be fully protected in relying
on any such certificate and on any adjustment contained in such certificate.
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, (i) the Company consolidates with, or merges
with, or into, any other Person (other than a Subsidiary of the Company
in a transaction that complies with SECTION 11(o)), and the Company is
not the continuing or surviving Person of such consolidation or merger;
(ii) any Person (other than a Subsidiary of the Company in a
transaction that complies with SECTION 11(o)) consolidates with, or
merges with, or into, the Company, and the Company is 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 Class A Common Stock and/or Class B Common Stock,
as the case may be, is changed into or exchanged for stock or other
securities of any other Person or cash or any other property; or (iii)
the Company sells or otherwise transfers (or one or more of its
Subsidiaries sells or otherwise transfers), in one transaction or a
series of related transactions, assets or earning power aggregating
more than 50% of the assets or
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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)), then, and in each such case (except as contemplated by SECTION
13(d)), proper provision will be made so that (A) each holder of a
Right, except as provided in SECTION 7(e) or SECTION 13(e), will
thereafter have the right to receive, upon the exercise of such Right
at the then current Purchase Price in accordance with the terms of this
Agreement, such number of validly authorized and issued, fully paid,
nonassessable, and freely tradable shares of Common Stock of the
Principal Party (as defined below), not subject to any liens,
encumbrances, preemptive rights, rights of first refusal, or other
adverse claims, as are equal to the result obtained by (1) multiplying
the then current Purchase Price by the number of Rights Shares 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 Rights Shares 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 (2) dividing that product (which, following the first
occurrence of a Section 13 Event, will be referred to as the "Purchase
Price" for each Right and for all purposes of this Agreement) by 50% of
the Current Market Price per share of the Common Stock of such
Principal Party on the date of consummation of such Section 13 Event;
(B) such Principal Party will thereafter be liable for, and will
assume, by virtue of such Section 13 Event, all the obligations and
duties of the Company pursuant to this Agreement; (C) the term
"Company" will thereafter be deemed to refer to such Principal Party,
it being specifically intended that the provisions of SECTION 11 will
apply only to such Principal Party following the first occurrence of a
Section 13 Event; (D) such Principal Party will 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
of this Agreement will thereafter be applicable, as nearly as may be,
in relation to its shares of Common Stock thereafter deliverable upon
the exercise of the Rights; and (E) the provisions of SECTION 11(a)(ii)
will be of no effect following the first occurrence of any Section 13
Event.
(b) "Principal Party" means
(i) in the case of any transaction described in CLAUSE (i) or
(ii) of the first sentence of SECTION 13(a), the Person that
is the issuer of any securities into which shares of Class A
Common Stock and/or Class B Common Stock, as the case may be,
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
(ii) in the case of any transaction described in
CLAUSE (iii) 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;
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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" will
refer to such other Person; and (2) in case such Person is a Subsidiary,
directly or indirectly, of more than one Person, with Common Stock that is
and has been so registered, "Principal Party" will refer to whichever of
such Persons is the issuer of the Common Stock having the greatest aggregate
market value.
(c) The Company will not consummate any such consolidation, merger,
sale, or transfer unless the Principal Party has a sufficient number of
authorized shares of its Common Stock that have not been issued or reserved
for issuance to permit the exercise in full of the Rights in accordance with
this SECTION 13 and unless prior thereto the Company and such Principal
Party have executed and delivered to the Rights Agent a supplemental
agreement providing for the Principal Party to assume and perform the terms
set forth in SECTIONS 13(a) and (b) and further providing that, as soon as
practicable after the date of any consolidation, merger, or transfer
mentioned in SECTION 13(a), 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
Final Expiration Date; and
(ii) will deliver to holders of the Rights historical financial
statements for the Principal Party and each of its Affiliates that
comply in all respects with the requirements for registration on Form 10
under the Exchange Act.
(d) In the event that the Rights become exercisable under SECTION 13(a),
the Company, by action of the Board of Directors, may agree with the
Principal Party that the Principal Party may permit the Rights to be
exercised for 50% of the Common Shares of the Principal Party that would
otherwise be purchasable under SECTION 13(a), in consideration of the
surrender to the Principal Party, as the successor to the Company under
SECTION 13(a)(ii), of the Rights so exercised and without other payment of
the Purchase Price. Rights exercised under this SECTION 13(e) will be deemed
to have been exercised in full and cancelled.
(e) The provisions of this SECTION 13 will similarly apply to successive
mergers, consolidations, and sales or other transfers. In the event that a
Section 13 Event occurs at any time after the occurrence of a Section
11(a)(ii) Event, the Rights that have not theretofore been exercised will
thereafter become exercisable in the manner described
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in SECTION 13(a).
Section 14. Fractional Rights and Fractional Shares.
(a) The Company will not be required to issue fractions of Rights,
except prior to the Distribution Date as provided in SECTION 11(p), or to
distribute Rights Certificates that evidence fractional Rights. In lieu of
such fractional Rights, there will 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 will be the closing price of the
Rights for the Trading Day immediately prior to the date on which such
fractional Rights would have been otherwise issuable. The closing price of
the Rights for any day will be the last sale price, regular way, or, in case
no such sale takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed
or admitted to trading on the New York Stock Exchange or, if the Rights are
not listed or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting system with
respect to securities listed on the principal national securities exchange
on which the Rights are listed or admitted to trading, or if the Rights are
not listed or admitted to trading on any national securities exchange, the
last quoted price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by NASDAQ or such
other system then in use or, if on any such date the Rights are not quoted
by any such organization, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in the Rights
selected by the Board of Directors of the Company. If on any such date no
such market maker is making a market in the Rights the fair value of the
Rights on such date as conclusively determined in good faith by the Board of
Directors of the Company will be used.
(b) The Company will not be required to issue fractions of shares of
Class A Common Stock upon exercise of the Rights or to distribute
certificates that 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 provided in this Agreement an amount in cash equal to the same
fraction of the Current Market Price of one share of Class A Common Stock as
of the Trading Day immediately prior to the date of such exercise.
(c) The holder of a Right, by the acceptance of the Rights, expressly
waives the right to receive any fractional Rights or any fractional shares
upon exercise of a Right, except as permitted by this SECTION 14.
Section 15. Rights of Action. All rights of action in respect of this
Agreement are vested in the respective registered holders of the Rights
Certificates (and, prior to the Distribution Date, the registered holders of the
Class A Common Stock and/or Class B Common
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<PAGE> 27
Stock, as the case may be,); and any registered holder of any Rights Certificate
(or, prior to the Distribution Date, of the Class A Common Stock and/or Class B
Common Stock, as the case may be), without the consent of the Rights Agent or of
the holder of any other Rights Certificate (or, prior to the Distribution Date,
of the Class A Common Stock and/or Class B Common Stock, as the case may be),
may, on its own behalf and for its own benefit, enforce, and may institute and
maintain any suit, action, or proceeding against the Company to enforce, or
otherwise act in respect of, its right to exercise the Rights evidenced by such
Rights Certificate in the manner provided in such Rights Certificate and in this
Agreement. Without limiting the foregoing or any remedies available to the
holders of Rights, it is specifically acknowledged that the holders of Rights
would not have an adequate remedy at law for any breach of this Agreement and
will be entitled to specific performance of the obligations under this Agreement
and injunctive relief against actual or threatened violations of the obligations
under this Agreement of any Person subject to this Agreement.
Section 16. Agreement of Rights Holders. Every holder of a Right by
accepting the Rights 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 Class A 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), 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 certificate for Class A
Common Stock and/or Class B Common Stock, as the case may be), is registered
as the absolute owner of the Rights evidenced thereby (notwithstanding any
notations of ownership or writing on the Rights Certificates or the
associated certificate for Class A Common Stock and/or Class B Common Stock,
as the case may be, made by anyone other than the Company or the Rights
Agent) for all purposes whatsoever, and neither the Company nor the Rights
Agent, will 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 will 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
will use its
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reasonable 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 will be entitled to vote or receive dividends
or be deemed for any purpose the holder of the number of shares of Class A
Common Stock or any other securities of the Company that may at any time be
issuable on the exercise of the Rights represented thereby, nor will anything
contained in this Agreement or in any Rights Certificate be construed to confer
upon the holder of any Rights Certificate, as such, any of the rights of a
stockholder of the Company or any right to vote for the election of directors or
upon any matter submitted to stockholders, 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), or to receive dividends or
subscription rights, or otherwise, until the Right or Rights evidenced by such
Rights Certificate have been exercised in accordance with the provisions of this
Agreement.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it under this Agreement and, from
time to time, on demand of the Rights Agent, its reasonable expenses and
counsel fees and disbursements and other disbursements incurred in the
administration and execution of this Agreement and the exercise and
performance of its duties under this Agreement. The Company also agrees to
indemnify the Rights Agent for, and to hold it harmless against, any loss,
liability, or expense, incurred without gross negligence, bad faith, or
willful misconduct on the part of the Rights Agent, for anything done or
omitted to be done by the Rights Agent in connection with the acceptance and
administration of this Agreement, including, without limitation, the costs
and expenses of defending against any claim of liability. Anything to the
contrary notwithstanding, in no event shall the Rights Agent be liable for
special, indirect, consequential or incidental loss or damage of any kind.
(b) The Rights Agent will be protected and will 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 Class A Common Stock or for other securities
of the Company, instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent, certificate,
statement, or other paper or document believed by it to be genuine and to be
signed, executed, and, where necessary, verified or acknowledged, by the
proper Person or Persons.
Section 19. Merger or Consolidation or Change of Name of Rights Agent.
(a) Any Person into or with which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any
Person resulting from any merger or consolidation to which the Rights Agent
or any successor Rights Agent is a party, or any corporation succeeding to
the corporate trust or stockholder services
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<PAGE> 29
business of the Rights Agent or any successor Rights Agent, will be the
successor to the Rights Agent under this Agreement without the execution or
filing of any paper or any further act on the part of any of the parties to
this Agreement; provided, however, that such corporation would be eligible
for appointment as a successor Rights Agent under the provisions of SECTION
21. In case at the time such successor Rights Agent succeeds to the agency
created by this Agreement, any of the Rights Certificates have been
countersigned but not delivered, any such successor Rights Agent may adopt
the countersignature of a predecessor Rights Agent and deliver such Rights
Certificates so countersigned; and in case at that time any of the Rights
Certificates have not been countersigned, any successor Rights Agent may
countersign such Rights Certificates either in the name of the predecessor
or in the name of the successor Rights Agent; and in all such cases such
Rights Certificates will have the full force provided in the Rights
Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent is changed and at
such time any of the Rights Certificates 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 have not 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 will
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 of such Rights Certificates, will be bound:
(a) The Rights Agent may consult with legal counsel (who may be legal
counsel for the Company), and the opinion of such counsel will be full and
complete authorization and protection to the Rights Agent as to any action
taken or 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 deems it necessary or desirable that any fact or matter
(including, without limitation, the identity of any Acquiring Person or
Adverse Person and the determination of "Current Market Price") be proved or
established by the Company prior to taking or suffering any action under
this Agreement, such fact or matter (unless other evidence in respect of
such fact or matter is specifically prescribed in this Agreement) may be
deemed to be conclusively proved and established by a certificate signed by
the Chairman of the Board, the Chief Executive Officer, the Chief Operating
Officer, the President, any Executive 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 will 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.
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(c) The Rights Agent will be liable under this Agreement only for its
own gross negligence, bad faith or willful misconduct.
(d) The Rights Agent will not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the 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 will be deemed to have been made by the Company only.
(e) The Rights Agent will not be under any responsibility in respect of
the validity of this Agreement or the execution and delivery of this
Agreement (except the due execution of this Agreement by the Rights Agent)
or in respect of the validity or execution of any Rights Certificate (except
its countersignature); nor will it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement or in any
Rights Certificate; nor will it be responsible for any adjustment required
under the provisions of SECTION 11 or SECTION 13, 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 will it by any act under this
Agreement be deemed to make any representation or warranty as to the
authorization or reservation of any shares of Common Stock to be issued
pursuant to this Agreement or any Rights Certificate or as to whether any
shares of Common Stock will, when so issued, be validly authorized or
issued, fully paid, or 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 under this
Agreement from the Chairman of the Board, the Chief Executive Officer, the
Chief Operating Officer, the President, any Executive 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 will 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 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, 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 in this Agreement will
preclude the Rights Agent from acting in any other capacity for the Company
or for any other Person.
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(i) The Rights Agent may execute and exercise any of the rights or
powers vested by this Agreement in it or perform any duty under this
Agreement either itself or by or through its attorneys or agents, and the
Rights Agent will not be answerable or accountable for any act, default,
neglect, or misconduct of any such attorneys or agents or for any loss to
the Company resulting from any such act, default, neglect, or misconduct;
provided, however, reasonable care was exercised in the selection and
continued employment of such Person.
(j) No provision of this Agreement will require the Rights Agent to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties under this Agreement or in the exercise
of its rights if there are reasonable grounds for believing that repayment
of such funds or adequate indemnification against such risk or liability is
not reasonably assured to it.
(k) If, with respect to any 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 or 2 of
such certificate, the Rights Agent will not take any further action with
respect to such requested exercise of transfer without first consulting with
the Company.
Section 21. Change of Rights Agent. The Rights Agent or any successor Rights
Agent may resign and be discharged from its duties under this Agreement upon 30
days' notice in writing mailed to the Company, and to each transfer agent of the
Class A Common Stock and/or Class B Common 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 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 Class A Common Stock and/or Class
B Common Stock, by registered or certified mail, and to the holders of the
Rights Certificates by first-class mail. If the Rights Agent resigns or is
removed or otherwise becomes incapable of acting, the Company will appoint a
successor to the Rights Agent. If the Company fails to make such appointment
within a period of 30 days after 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 will,
with such notice, submit such holder's 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,
will be a corporation organized and doing business under the laws of the United
States or a State of the United States, in good standing, that is authorized
under such laws to exercise corporate trust powers and is subject to supervision
or examination by federal or state authority and that has at the time of its
appointment as Rights Agent a combined capital and surplus of at least
$25,000,000. After appointment, the successor Rights Agent will be vested with
the same powers, rights, duties, and responsibilities as if it had been
originally named as Rights Agent without further act or deed, except that the
predecessor Rights Agent will deliver and transfer to
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<PAGE> 32
the successor Rights Agent any property at the time held by it under this
Agreement and execute and deliver any further assurance, conveyance, act, or
deed necessary for the purpose. Not later than the effective date of any such
appointment, the Company will file notice of such appointment in writing with
the predecessor Rights Agent and each transfer agent of the Class A Common Stock
and/or Class B Common Stock, and mail a notice of such appointment 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 in such notice, will 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,
in its discretion, 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, 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 Class A Common Stock and/or shares of
Class B Common Stock following the Distribution Date and prior to the Expiration
Date, the Company (a) will, with respect to shares of Class A Common Stock
and/or shares of Class B 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 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 (y) no such Rights Certificate
will be issued if, and to the extent that, the Company is 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 (z) no such Rights Certificate will be issued if, and to the
extent that, appropriate adjustment has otherwise been made in lieu of the
issuance of such Rights Certificate.
Section 23. Redemption and Termination.
(a) The Company may, at its option, by action of the Board of Directors,
at any time prior to the earlier of (i) such time as a Person becomes an
Acquiring Person, or (ii) the Final Expiration Date, redeem all but not
fewer than all the then outstanding Rights at the Redemption Price (the date
of such redemption, the "Redemption Date"), and the Company, at its option,
may pay the Redemption Price either in cash or Class A Common Stock or other
securities of the Company, deemed by the Board of Directors, in the exercise
of its sole discretion, to be at least equivalent in value to the Redemption
Price.
(b) Immediately upon the action of the Board of Directors ordering the
redemption of the Rights, evidence of which has 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 will be to receive the
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<PAGE> 33
Redemption Price. Promptly after the action of the Board of Directors
ordering the redemption of the Rights, the Company will give notice of such
redemption to the Rights Agent and to 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 Class A Common Stock or Class B Common Stock, as the case may be. Each
such notice of redemption will state the method by which the payment of the
Redemption Price will be made. Any notice that is mailed in the manner in
this Agreement provided will be deemed given, whether or not the holder
receives such notice. In any case, failure to give such notice by mail, or
any defect in the notice, to any particular holder of Rights shall not
affect the sufficiency of the notice to other holders of Rights.
Section 24. Exchange.
(a) The Board of Directors of the Company may, at its option, at any
time after a Triggering Event, exchange all or part of the then outstanding
and exercisable Rights (which will not include Rights that have become void
pursuant to the provisions of SECTION 7(e) hereof) for shares of Class A
Common Stock, each Right being exchangeable for one share of Class A Common
Stock, appropriately adjusted to reflect any transaction specified in
SECTION 11(a)(i) occurring after the Record Date (such number of shares of
Class A Common Stock issuable in exchange for one Right being referred to
herein as the "Exchange Shares"). Notwithstanding the foregoing, the Board
of Directors shall not be empowered to effect such exchange at any time
after any Person (other than the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or any of its Subsidiaries or any
Person or entity organized, appointed or established by the Company for or
pursuant to the terms of any such Plan), together with all Affiliates and
Associates of such Person, becomes the Beneficial Owner of 50% or more of
the Class A Common Stock then outstanding.
(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 the Exchange Shares. The Company
shall promptly give public notice of any such exchange; provided, however,
that the failure to give, or any defect in, such notice shall not affect the
validity of such exchange. The Company promptly shall mail a notice of any
such exchange to all of the holders of such Rights at their last addresses
as they appear upon the registry books of the Rights Agent. Any notice that
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 Class A Common Stock for Rights will
be effected and, in the event of any partial exchange, the number of Rights
which will be exchanged. Any partial exchange shall be effected pro rata
based on the number of Rights (other than Rights which have become void
pursuant to the provisions of SECTION 7(e) hereof) held by each holder of
Rights.
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<PAGE> 34
(c) In the event that there shall not be sufficient Class A Common Stock
issued but not outstanding, or authorized but unissued, to permit any
exchange of Rights as contemplated in accordance with this SECTION 24, the
Company shall take all such action as may be necessary to authorize
additional Class A Common Stock for issuance upon exchange of the Rights or
shall take such other action specified in SECTION 11(a)(iii) hereof.
(d) The Company shall not be required to issue fractions of shares of
Class A Common Stock to distribute certificates which evidence fractional
Class A Common Stock. In lieu of such fractional shares, the Company shall
pay to the registered holders of the Right Certificates with regard to which
such fractional shares would otherwise be issuable an amount in cash equal
to the same fraction of the Current Market Price of a whole share of Class A
Common Stock. For the purposes of this SUBSECTION (d), the Current Market
Value of a whole share of Class A Common Stock shall be determined as of the
Trading Day immediately prior to the date of exchange pursuant to this
SECTION 24.
Section 25. Notice of Certain Events.
(a) In case the Company proposes, at any time after the Distribution
Date, (i) to pay any dividend payable in stock of any class to the holders
of Class A Common Stock or Class B Common Stock or to make any other
distribution to the holders of Class A Common Stock or Class B Common 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 Class A Common
Stock or Class B Common Stock rights or warrants to subscribe for or to
purchase any additional shares of Class A Common Stock or shares of stock of
any class or any other securities, rights or options, or (iii) to effect any
reclassification of its Class A Common Stock or Class B Common Stock (other
than a reclassification involving only the subdivision of outstanding
shares), or (iv) to effect any consolidation or merger into, or with any
other Person (other than a Subsidiary of the Company in a transaction that
complies with SECTION 11(o)), 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 or
any of its Subsidiaries in one or more transactions each of which complies
with SECTION 11(o)), or (v) to effect the liquidation, dissolution or
winding up of the Company, then, in each such case, the Company will give to
each holder of a Rights Certificate, to the extent feasible and in
accordance with SECTION 26, a notice of such proposed action, which will
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 take place and the date of participation
therein by the holders of the shares of Class A Common Stock and/or Class B
Common Stock, if any such date is to be fixed, and such notice will be so
given in the case of any action covered by CLAUSE (i) or (ii) above at least
20 days prior to the record date for determining holders of the shares of
Class A Common Stock and/or Class B Common Stock for purposes of such
action, and
31
<PAGE> 35
in the case of any such other action, at least 20 days prior to the date of
the taking of such proposed action or the date of participation therein by
the holders of the shares of Class A Common Stock and/or Class B Common
Stock, whichever is the earlier.
(b) In case of a Triggering Event, then (i) the Company will as soon as
practicable give to each holder of a Rights Certificate, to the extent
feasible and in accordance with SECTION 26, a notice of the occurrence of
such event, which will specify the event and the consequences of the event
to holders of Rights under this Agreement, and (ii) all references in
SECTION 25(a) to Class A Common Stock or to Class B Common Stock will be
deemed thereafter to refer to other securities, if appropriate.
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 to
or on the Company will 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:
Affiliated Computer Services, Inc.
2828 North Haskell Avenue
Dallas, Texas 75204
Attention: General Counsel
with a copy to:
Hughes & Luce, L.L.P.
1717 Main Street
Suite 2800
Dallas, Texas 75201
Attention: David G. Luther, Jr.
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 will 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:
First City Transfer Company
505 Thornall Street, Suite 303
Edison, NJ 08837
Attention: General Counsel
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 Class A Common Stock and/or Class B Common Stock) will 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.
32
<PAGE> 36
Section 27. Supplement and Amendments. The Company, by action of its Board
of Directors, and the Rights Agent may from time to time supplement or amend
this Agreement without the approval of any holders of Rights in order to cure
any ambiguity, to correct or supplement any provision contained in this
Agreement that may be defective or inconsistent with any other provisions in
this Agreement, or to make any other provisions in regard to matters or
questions arising under this Agreement that the Company and Rights Agent may
deem necessary or desirable and that will be consistent with, and for the
purpose of fulfilling, the objectives of the Board of Directors in adopting this
Agreement; provided, however, that following the Distribution Date, this
Agreement shall not be amended in any manner that would adversely affect the
basic economic terms of the Rights; provided, further, that, once the Rights are
no longer redeemable in accordance with SECTION 23 of this Agreement, no
amendment to this Agreement may have the effect of making the Rights redeemable.
Section 28. Successors. All the covenants and provisions of this Agreement
by or for the benefit of the Company or the Rights Agent will bind and inure to
the benefit of their respective successors and assigns under this Agreement.
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 Class
A Common Stock outstanding at any particular time, including for purposes of
determining the particular percentage of such outstanding shares of Class A
Common Stock of which any Person is the Beneficial Owner, will 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 as in effect on the date of this
Agreement. The Board of Directors will have the exclusive power and authority to
administer this Agreement and to exercise all rights and powers specifically
granted to the Board of 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 (a) interpret the provisions of this
Agreement, and (b) make all determinations deemed necessary or advisable for the
administration of this Agreement (including, without limitation, a determination
to redeem or not redeem the Rights or to amend the Agreement). All such actions,
calculations, interpretations and determinations (including, for purposes of
CLAUSE (Y) below, all omissions with respect to the foregoing) that are done or
made by the Board of Directors in good faith, will (x) be final, conclusive, and
binding on the Company, the Rights Agent, the holders of the Rights, and all
other parties, and (y) not subject the Board of Directors to any liability to
the holders of the Rights.
Section 30. Benefits of this Agreement. Nothing in this Agreement will 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; and this Agreement will
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
33
<PAGE> 37
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 will remain in full force and
effect and will in no way be affected, impaired, or invalidated; provided,
however, that notwithstanding anything in this Agreement to the contrary, if any
such term, provision, covenant, or restriction is held by such court or
authority to be invalid, void, or unenforceable and the Board 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 will be
reinstated and will not expire until the Close of Business on the tenth Business
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 UNDER THIS AGREEMENT WILL BE DEEMED TO BE A CONTRACT MADE
UNDER THE LAWS OF THE STATE OF DELAWARE AND FOR ALL PURPOSES WILL 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 will for all purposes be deemed to be
an original, and all such counterparts will together constitute but one and the
same instrument.
Section 34. Interpretation. Descriptive headings of the several Sections of
this Agreement are inserted for convenience only and will not control or affect
the meaning or construction of any of the provisions of this Agreement.
References in this Agreement to Sections and Exhibits are references to the
Sections of and Exhibits to this Agreement unless the context requires
otherwise. In this Agreement, the word "or" is not exclusive.
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.
AFFILIATED COMPUTER SERVICES, INC.
By: /s/ DAVID W. BLACK
Name: David W. Black
Title: Executive Vice President,
General Counsel
FIRST CITY TRANSFER COMPANY
By: /s/ MONICA TOBEY
Name: Monica Tobey
Title:
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<PAGE> 38
Exhibit A
to Rights Agreement
Certificate No. R-
[FORM OF RIGHTS CERTIFICATE]
________ Rights
NOT EXERCISABLE AFTER August 25, 2007 OR EARLIER IF REDEEMED BY THE COMPANY.
THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER
RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERMS
ARE DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS
MAY BECOME NULL AND VOID.
Rights Certificate
AFFILIATED COMPUTER SERVICES, INC.
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 First Amended
and Restated Rights Agreement, dated as of April 2, 1999 (as amended from time
to time, the "Rights Agreement"), between Affiliated Computer Services, Inc., a
Delaware corporation (the "Company"), and First City Transfer Company (the
"Rights Agent"), to purchase from the Company at any time prior to 5:00 p.m.
(Dallas, Texas time) on August 25, 2007 at the office or offices of the Rights
Agent designated for such purpose, or its successors as Rights Agent, one fully
paid, nonassessable share of Class A Common Stock (the "Common Stock") of the
Company, at a purchase price of $150.00 per 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 that 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 August 25, 1997
based on the Common Stock as constituted at such date. As provided in the Rights
Agreement, the Purchase Price and the number and kind of shares of Common Stock
or other securities, that may be purchased upon the exercise of the Rights
evidenced by this Rights Certificate are subject to modification and adjustment
upon the happening of certain events.
This Rights Certificate is subject to all of the terms, provisions, and
conditions of the Rights Agreement, which terms, provisions, and conditions are
incorporated herein by reference and made a part of this certificate 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 certain
A-1
<PAGE> 39
circumstances set forth in the Rights Agreement. Copies of the Rights Agreement
are on file at the above-mentioned office of the Rights Agent and are also
available upon written request to the Rights Agent. All capitalized terms not
otherwise defined have the meaning set forth in the Rights Agreement.
Upon the occurrence of a Section 11(a)(ii) Event, 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, (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 will become null and void and no holder of this
certificate will have any right with respect to such Rights from and after the
occurrence of such Section 11(a)(ii) Event.
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 shares of Common Stock as the Rights
evidenced by the Rights Certificate or Rights Certificates surrendered have
entitled such holder to purchase. If this Rights Certificate is exercised in
part, the holder will be entitled to receive upon surrender of this certificate
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 $0.01 per Right. In addition, in certain circumstances the Rights may
be exchanged, in whole or in part, for shares of the Common Stock. 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 that are not subject to such exchange) will terminate and the Rights will
only enable holders to receive the shares issuable upon such exchange.
No fractional shares of Common Stock will be issued upon the exercise of any
Right or Rights evidenced hereby, but in lieu thereof a cash payment will be
made, as provided in the Rights Agreement.
No holder of this Rights Certificate will be entitled to vote or receive
dividends or be deemed for any purpose the holder of shares of Common Stock or
of any other securities of the Company that may at any time be issuable on the
exercise hereof, nor will anything contained in the Rights Agreement or herein
be construed to confer upon the holder of this 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 the
Rights Agreement), or to receive dividends or subscription rights, or otherwise,
until the Right or Rights evidenced by this Rights Certificate have been
exercised as provided in the Rights Agreement.
A-2
<PAGE> 40
This Rights Certificate will not be valid or obligatory for any purpose
until it has been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company and
its corporate seal.
Dated as of: ____________________
AFFILIATED COMPUTER SERVICES, INC.
By:
Name: David W. Black
Title: Executive Vice President,
General Counsel
Countersigned:
FIRST CITY TRANSFER COMPANY
By:
Name:
Title:
A-3
<PAGE> 41
[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:
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the appropriate boxes that:
(1) this Rights Certificate [ ] is [ ] is not being sold, assigned, or
transferred by or on behalf of a Person who is or was an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person (as such terms are defined
pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it [ ] did [
] did not acquire the Rights evidenced by this Rights Certificate from any
Person who is, was or subsequently became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated:
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities Dealers,
Inc., or a commercial bank or trust company having an office or correspondent in
the United States.
A-4
<PAGE> 42
FORM OF ELECTION TO PURCHASE
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.
To: AFFILIATED COMPUTER SERVICES, INC.:
The undersigned hereby irrevocably elects to exercise __________ Rights
represented by this Rights Certificate to purchase the shares of Class A Common
Stock issuable upon the exercise of the Rights (or such other securities of the
Company or of any other person that 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 are not all the Rights evidenced by this Rights
Certificate, a new Rights Certificate for the balance of such Rights will be
registered in the name of and delivered to:
Please insert social security or other identifying number:
Please print name and address:
Dated:
Signature
Signature Guaranteed:
A-5
<PAGE> 43
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 Adverse Person or an Affiliate or Associate of any such Acquiring Person or
an Adverse Person (as such terms are defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it [ ]
did [ ] did not acquire the Rights evidenced by this Rights Certificate from any
Person who is, was or became an Acquiring Person or Adverse Person or an
Affiliate or Associate of an Acquiring Person or an Adverse Person.
Dated:
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities Dealers,
Inc., or a commercial bank or trust company having an office or correspondent in
the United States.
A-6
<PAGE> 44
Exhibit B
to Rights Agreement
SUMMARY OF RIGHTS TO PURCHASE
SHARES OF AFFILIATED COMPUTER SERVICES, INC.
CLASS A COMMON STOCK
On August 5, 1997, the Board of Directors of Affiliated Computer Services,
Inc. (the "Company") declared a dividend of one common share purchase right (a
"Right") for each outstanding share of Class A common stock, $0.01 par value
(the "Class A Common Stock") and for each share of Class Common Stock, $0.01
value (the "Class B Common Stock"), of the Company. The dividend was made on
August 25, 1997 (the "Record Date") to the stockholders of record at the close
of business on that date. Each Right entitles the registered holder to purchase
from the Company one share of Class A Common Stock of the Company, at a price of
$150.00 (the "Purchase Price"), subject to adjustment. The description and terms
of the Rights are set forth in the First Amended and Restated Rights Agreement
dated as of April 2, 1999 (the "Rights Agreement") between the Company and First
City Transfer Company, as Rights Agent (the "Rights Agent").
Until the earlier to occur of (i) ten Business Days following a public
announcement that a person or group of affiliated or associated persons has
acquired, or obtained the right to acquire, beneficial ownership of 15% or more
of the outstanding Class A Common Stock (an "Acquiring Person") or (ii) ten
Business Days following the commencement of, or announcement of an intention to
make, a tender offer or exchange offer, the consummation of which would result
in the beneficial ownership by a person or group of 15% or more of such
outstanding Class A Common Stock (the earlier of such dates being the
"Distribution Date"), the Rights will be evidenced, with respect to any of the
certificates for Class A Common Stock and/or Class B Common Stock outstanding as
of the Record Date, by such certificates for Class A Common Stock and/or Class B
Common Stock with a copy of this Summary of Rights attached to the certificate.
The Rights Agreement provides that, until the Distribution Date, the Rights
will be transferred with and only with the Class A Common Stock and/or Class B
Common Stock, as the case may be. Until the Distribution Date (or earlier
redemption or expiration of the Rights), new certificates issued after the
Record Date upon transfer or new issuance of Class A Common Stock and/or Class B
Common Stock, as the case may be, will contain a notation incorporating the
Rights Agreement by reference. Until the Distribution Date (or earlier
redemption or expiration of the Rights), the surrender for transfer of any
certificates for Class A Common Stock and/or Class B Common Stock, as the case
may be, outstanding even without such notation or a copy of this Summary of
Rights being attached to such Certificate, will also constitute the transfer of
the Rights associated with the Class A Common Stock and/or Class B Common Stock,
as the case may be, represented by such certificate. As soon as practicable
following the Distribution Date, separate certificates evidencing the Rights
(the "Right Certificates") will be mailed to holders of record of the Class A
Common Stock and/or Class B Common Stock, as the
B-1
<PAGE> 45
case may be, as of the close of business on the Distribution Date and such
separate Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights will
expire on August 25, 2007 (the "Final Expiration Date"), unless the Final
Expiration Date is extended or unless the Rights are earlier redeemed by the
Company, in each case, as described below.
The Purchase Price payable and the number of shares of Common 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 Class A
Common Stock, (ii) upon the grant to holders of the Class A Common Stock of
certain rights or warrants to subscribe for or purchase Class A Common Stock at
a price or securities convertible into Class A Common Stock with a conversion
price less than the then current market price of the Class A Common Stock; (iii)
upon the distribution to holders of the Class A Common Stock of evidences of
indebtedness or assets or of subscription rights or warrants (other than those
referred to above); or (iv) upon any of the foregoing happens with respect to
the Class B Common Stock.
In the event that any person or entity becomes an Acquiring Person (the
beneficial owner of 15% or more of the Class A Common Stock), provision will be
made so that each holder of a Right, other than Rights beneficially owned by the
Acquiring Person (which will then be void), will have the right to receive upon
exercise that number of shares of Class A Common Stock having a market value of
two times the applicable exercise price of the Right.
The Rights Agreement excludes from the definition of Acquiring Person,
Persons who certify to the Company that they inadvertently acquired in excess of
14.9% of the outstanding Class A Common Stock and thereafter divest such excess
Class A Common Stock or who acquire 15% or more of the Class A Common Stock in a
Permitted Transaction. A "Permitted Transaction" is a stock acquisition or
tender or exchange offer pursuant to a definitive agreement which would result
in a person beneficially owning 15% or more of the Class A Common Stock and
which has been approved by the Board of Directors (including a majority of the
Directors not in association with an Acquiring Person) prior to the execution of
the agreement or the public announcement of the offer.
In the event that the Company is acquired in a merger or other business
combination transaction, or 50% or more of its consolidated assets or earning
power are sold, proper provisions will be made so that each holder of a Right
will have the right to receive, upon the exercise of the Right at the then
applicable exercise price, that number of shares of common stock of the
acquiring company that at the time of such transaction will have a market value
of two times the applicable exercise price of the Right.
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional shares of Class A Common Stock will be issued
and, in lieu of such fractional shares, an adjustment in cash will be made based
on the market price of the Class A Common Stock on
B-2
<PAGE> 46
the last trading day prior to the date of exercise.
After a person becomes an Acquiring Person, the Company's Board of Directors
may exchange the Rights, other than those Rights owned by the Acquiring Person,
in whole or in part, at an exchange ratio of one share of Class A Common Stock
per Right, subject to adjustment. However, the Board of Directors cannot conduct
an exchange at any time after any Person, together with its Affiliates and
Associates, becomes the Beneficial Owner of 50% or more of the outstanding Class
A Common Stock.
At any time prior to any Person becoming an Acquiring Person, the Board of
Directors may redeem the Rights in whole, but not in part, at a price of $0.01
per Right (the "Redemption Price"). In addition, the Board of Directors may
extend or reduce the period during which the Rights are redeemable, so long as
the Rights are redeemable at the time of such extension or reduction.
Immediately upon any redemption of the Rights, the right to exercise the Rights
will terminate and the only right of the holders of Rights will be to receive
the Redemption Price.
The terms of the Rights may be amended by the Board of Directors of the
Company without the consent of the holders of the Rights, including an amendment
to extend the Final Expiration Date, except that from and after the Distribution
Date no such amendment may adversely affect the economic interests of the
holders of the Rights.
Until a Right is exercised, the holder of the Right, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote, or to receive dividends.
B-3
