SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
COLLINS INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Missouri 43-0985160
(State of incorporation (IRS Employer
or organization) Identification No.)
421 East 30th Avenue
Hutchinson, Kansas 67502
(Address of principal (Zip code)
executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
None
Securities to be registered pursuant to Section 12(g) of the Act:
Preferred Stock Purchase Rights
(Title of Class)
Item 1. Description of Securities to be Registered.
On March 28, 1995, the Board of Directors of Collins
Industries, Inc. (the "Company") declared a dividend distribution
(the "Rights Declaration Date") of one right (the "Rights") for
each outstanding share of Common Stock, $.10 par value per share
(the "Common Stock"), to stockholders of record at the close of
business on April 20, 1995 (the "Record Date"). Each Right
entitles the registered holder to purchase from the Company a
unit consisting of one one-hundredth of a share (a "Preferred
Stock Unit") of Series A Junior Participating Preferred Stock,
$1.00 par value per share (the "Preferred Stock") at a purchase
price of $7.44 per Preferred Stock Unit (the "Purchase Price")
subject to adjustment. The description and terms of the Rights
are set forth in a Rights Agreement (the "Rights Agreement")
between the Company and Mellon Bank, N.A. as rights agent (the
"Rights Agent").
Initially, the rights will be attached to all Common Stock
certificates representing shares then outstanding, and no separate
certificates for the Rights (the "Rights Certificates") will be
distributed. The rights will separate from the Common Stock and
a Distribution Date will occur upon the earliest of (i) the 20th
business day after the date on which there is a public announcement
that any Person (as defined in the Rights Agreement) or a group of
affiliated or associated Persons (an "Acquiring Person"), has
acquired, or obtained the right to acquire, beneficial ownership
of 20% or more of the outstanding shares of Common Stock
(the date of such first public announcement, the "Stock
Acquisition Date"), other than such acquisition by the Company,
any subsidiary of the Company, any employee benefit plan of the
Company or of any subsidiary of the Company (an "Exempt Person"),
(ii) the 20th business day after the date of commencement of a
tender offer or an exchange offer by any Person (other than an
Exempt Person) for the Common Stock of the Company if, upon
consummation thereof, such Person would be the beneficial owner
of 20% or more of the outstanding shares of Common Stock, or
(iii) the 20th business day after a Person is declared to be
an Adverse Person (as defined in the Rights Agreement) by
a majority of the Unaffiliated Directors (as defined below)
upon a determination that such Person has become the beneficial
owner of at least 10% of the Common Stock of the Company and
that (a) such Person intends to cause the Company to repurchase
his Common Stock or to pressure the Company into taking
action intended to provide him with short-term financial
gain under circumstances where the best long-term interests of
the Company and its stockholders would not be served or (b) such
Person's beneficial interest is likely to cause a material
adverse impact on the business or prospects of the Company; and
such determination is not withdrawn within 20 business days
following such declaration.
Until the Distribution Date, (i) the Rights will be evidenced
by the Common Stock Certificates and will be transferred with and
only with such Common Stock Certificates, (ii) new Common Stock
Certificates issued after the Record Date will contain a notation
incorporating the Rights Agreement by reference, and (iii) the
surrender or transfer of any certificates for Common Stock
outstanding will also constitute the transfer of Rights
associated with the Common Stock represented by such certificate.
The Rights are not exercisable until the Distribution
Date and will expire at the close of business on April 1, 2005,
unless earlier redeemed by the Company as described below.
As soon as practicable after the Distribution Date,
Rights Certificates will be mailed to holders of record of the
Common Stock as of the close of business on the Distribution Date
and, thereafter, the separate Rights Certificates alone will
represent the Rights.
In the event that, anytime following the Rights Declaration
Date, (i) any Person, including affiliates and associates,
becomes the beneficial owner of 20% or more of the outstanding
shares of Common Stock (except pursuant to a cash tender offer or
certain exchange offers for all outstanding Common Stock at a
price and on terms determined by a majority of the Unaffiliated
Directors to be fair to and in the best interests of the Company
and its stockholders), (ii) the Company is the surviving
corporation in a merger with an Acquiring Person or an Adverse
Person and its Common Stock is not changed or exchanged, (iii)
during such time as there is an Acquiring Person, an event occurs
that results in such Acquiring Person's ownership interest being
increased by more than 1% (e.g., a reverse stock split), (iv) an
Acquiring Person or an Adverse Person engages in one or more
"self-dealing" transactions as set forth in the Rights Agreement,
or (v) any Person is declared to be an Adverse Person and such
declaration is not withdrawn during the period so provided for;
each holder of a Right will thereafter have a right to receive,
upon exercise, Preferred Stock Units (or, in certain
circumstances, Common Stock, cash, property or other securities
of the Company) having a value equal to twice the Purchase Price,
upon payment of the Purchase Price. However, the Rights are not
exercisable following the occurrence of any of the events set
forth above until such time as the Rights are no longer
redeemable by the Company as set forth below. Notwithstanding
any of the foregoing, following the occurrence of any of the
events set forth in this paragraph, all Rights that are, or
(under certain circumstances specified in the Rights Agreement)
were, beneficially owned by any Acquiring Person or Adverse
Person (or by certain affiliated or associated parties) will be
null and void.
For example, at a Purchase Price of $7.44 per Right,
each Right not owned by an Acquiring Person or an Adverse Person
(or by certain related parties) following an event set forth in
the preceding paragraph would entitle its holder, upon payment of
the $7.44 Purchase Price, to purchase such number of Preferred
Stock Units (or other consideration, as noted above) as equals
$14.88 divided by the current market price of the Common Stock
(as determined pursuant to the Rights Agreement). Assuming that
the Common Stock has a per share value of $2.50 at such time, the
holder of each exercisable Right would be entitled to purchase
5.95 Preferred Stock Units (5.95 one-hundredths of a share of
Preferred Stock) for $7.44.
In the event that, at any time on or following the Stock
Acquisition Date, (i) the Company is acquired in a merger,
exchange offer, or other business combination (other than in a
transaction with a Person who acquired shares pursuant to a cash
tender offer for all outstanding Common Stock, the price per
share offered in the transaction is not less than the tender
offer price, and the form of consideration is the same as that
offered in the tender offer) in which the Company is not the
surviving corporation or its Common Stock is changed or
exchanged, or (ii) 50% or more of the Company's assets or earning
power is sold or transferred; each holder of a Right (except
Rights that previously have been voided as set forth above) shall
thereafter have the right to receive, upon exercise, common stock
of the acquiring Company having a value equal to twice the
Purchase Price of the Right, upon payment of the Purchase Price.
The events set forth in this paragraph and in the second
preceding paragraph are referred to as the "Triggering Events."
The Purchase Price payable and the number of Preferred Stock
Units or other securities or property issuable upon exercise of
the Rights are subject to adjustment from time to time to prevent
dilution (i) in the event of a stock dividend on, or a
subdivision, combination or reclassification of, the Preferred
Stock, (ii) if holders of the Preferred Stock are granted certain
rights or warrants to subscribe for Preferred Stock or
convertible securities at less than the current market price of
the Preferred Stock (as determined pursuant to the Rights
Agreement), or (iii) upon the distribution to holders of
Preferred Stock of evidences of indebtedness or assets (excluding
regular quarterly cash dividends) or of subscription rights or
warrants (other than those referred to above).
With certain exceptions, no adjustment in the Purchase
Price will be required until cumulative adjustments amount to at
least 1% of the Purchase Price. No fractional Preferred Stock
Units will be issued and, in lieu thereof, an adjustment in cash
will be made based on the market price of the Preferred Stock (as
determined pursuant to the Rights Agreement).
At any time until the earlier of the final Expiration
Date (as defined in the Rights Agreement) or until 20 business
days following the Stock Acquisition Date, the Company may redeem
the Rights in whole, but not in part, at a price of $.01 per
Right (payable in cash, Common Stock or other consideration
deemed appropriate by the Unaffiliated Directors). The decision
to redeem shall require the concurrence of a majority of the
Unaffiliated Directors. After the redemption period has expired,
the Company's right of redemption may be reinstated if an
Acquiring Person reduces its beneficial ownership to 10% or less
of the outstanding shares of Common Stock in a transaction or
series of transactions not involving the Company. The Rights
also shall be redeemable in whole, but not in part, during the
period commencing 20 business days following the Stock
Acquisition Date and terminating on the earlier of a Triggering
Event or the Final Expiration Date, with the approval of a
majority of the Unaffiliated Directors in connection with an
Extraordinary Transaction (as defined in the Rights Agreement).
Immediately upon the action of a majority of the Unaffiliated
Directors ordering redemption of the Rights, the Rights will
terminate and the only right of the holders of Rights will be to
receive the $.01 redemption price.
The term "Unaffiliated Directors" means any member of
the Board of Directors of the Company who was a member of such
Board prior to the date of the Rights Agreement and any person
who is subsequently elected to the Board of Directors of the
Company if such person is recommended or approved by a majority
of the Unaffiliated Directors, but shall not include an Acquiring
Person or an Adverse Person, or an affiliate or associate of an
Acquiring Person or Adverse Person, or any representative of the
foregoing entities.
Until a right is exercised, the holder thereof, as
such, will have no rights as a stockholder of the Company,
including, without limitation, the right to vote or to receive
dividends. While the distribution of the Rights will not be
taxable to stockholders or to the Company, stockholders,
depending upon the circumstances, may recognize taxable income in
the event that the Rights become exercisable for Preferred Stock
Units (or other consideration) or for common stock of the
acquiring Company as set forth above.
Other than those provisions relating to the principal
economic terms of the Rights, any of the provisions of the Rights
Agreement may be amended by a majority of the Unaffiliated
Directors prior to the Distribution Date. After the Distribution
Date, the provisions of the Rights Agreement may be amended by a
majority of the Unaffiliated Directors in order to cure any
ambiguity, to make changes that do not adversely affect the
interests of holders of Rights (excluding the interests of any
Acquiring Person or Adverse Rights (excluding the interests of
any Acquiring Person or Adverse Person), or to shorten or
lengthen any time period under the Rights Agreement; provided,
however, that no amendment to adjust the time period governing
redemption shall be made at such time as the Rights are not
redeemable.
Each share of Common Stock issued and outstanding on
the Record Date will receive one Right. Rights will be issued in
respect of all shares of Common Stock that are issued after the
Record Date but prior to the Expiration Date (as defined in the
Rights Agreement). Seven hundred fifty thousand shares of
Preferred Stock will be reserved for issuance upon exercise of
the Rights.
The Rights have certain antitakeover effects. The Rights
will cause substantial dilution of the person or group that attempts
to acquire the Company without conditioning the offer on a
substantial number of Rights being acquired. The Rights should
not interfere with any merger or other business combination approved
by the Board of Directors of the Company because a majority of the
Unaffiliated Directors may, at its option, at any time prior to the
close of business on the earlier of (i) the 20th business day following
the Distribution Date or (ii) April 1, 2005, redeem all, but not less
than all, of the then outstanding Rights at the Redemption Price.
Additionally, as of the date that the Board of
Directors declared the Rights distribution, the Articles of
Incorporation of the Company (the "Articles"), and the Bylaws of
the Company (the "Bylaws") contained certain provisions which may
have antitakeover effects.
Article III of the Articles authorizes the Board of
Directors to issue up to three million shares of any series of
capital stock of the Company, other than the existing Common
Stock, with the designations, powers and preferences as fixed by
resolution of the Board.
Article IX of the Articles provides that the Board of
Directors has the power to alter the provisions of the Bylaws.
Article II, Section 11, of the Bylaws provides that
each shareholder has cumulative voting rights in electing
directors, whereby the number of shares owned by the shareholder
is multiplied by the number of directors to be elected and the
cumulative total may be voted for one candidate or distributed
among any number of candidates. This cumulative voting provision
(i) makes it more difficult for a majority shareholder to replace
the entire Board of Directors and (ii) gives a minority
shareholders an enhanced ability to elect a member of the Board
of Directors.
Article III of the Bylaws provides that the Board of
Directors of the Company may consist of seven to nine persons and
is divided into three classes, as nearly equal in number as
possible, with the term of office of one class expiring each
year.
The form of Rights Agreement between the Company and
the Rights Agent specifying the terms of the Rights, which
includes as Exhibit B the form of Rights Certificate, is
available from the Company upon written request. The foregoing
description of the Rights does not purport to be complete and is
qualified in its entirety by reference to the Rights Agreement.
Item 2. Exhibits.
1. Rights Agreement, dated as of March 28,
1995 between Collins Industries, Inc. and
Mellon Bank, N.A. which includes as Exhibit B
thereto the Form of Rights Certificate.
Pursuant to the Rights Agreement, Rights
Certificates will not be mailed until after
the earlier of one of the stated Distribution
Dates noted above.
2. The Articles of Incorporation of Collins
Industries, Inc., as amended.
3. The Bylaws of Collins Industries, Inc., as
amended.
SIGNATURE
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, the registrant has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereto duly authorized.
COLLINS INDUSTRIES, INC.
By:/s/ Donald Lynn Collins
Donald Lynn Collins
President, Chief Operating
Officer and Director
Date: March 28, 1995
EXHIBIT 1
COLLINS INDUSTRIES, INC.
and
MELLON BANK, N.A.
Rights Agent
______________
Rights Agreement
Dated as of March 28, 1995
TABLE OF CONTENTS
PAGE
Section 1. Certain Definitions 2
Section 2. Appointment of Rights Agent 9
Section 3. Issue of Rights Certificates 9
Section 4. Form of Rights Certificates 14
Section 5. Countersignature and Registration 16
Section 6. Transfer, Split Up, Combination and Exchange
of Rights Certificates; Mutilated, Destroyed,
Lost or Stolen Rights Certificates 17
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights 19
Section 8. Cancellation and Destruction of Rights
Certificates 25
Section 9. Reservation and Availability of Capital Stock 26
Section 10. Preferred Stock Record Date 29
Section 11. Adjustment of Purchase Price, Number and Kind
of Shares or Number of Rights 30
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares 57
Section 13. Consolidation. Merger or Sale or Transfer of
Assets or Earning Power 57
Section 14. Fractional Rights and Fractional Shares 63
Section 15. Rights of Action 66
Section 16. Agreement of Rights Holders 67
Section 17. Rights Certificate Holder Not Deemed a
Stockholder 69
Section 18. Concerning the Rights Agent 69
Section 19. Merger or Consolidation or Change of Name of
Rights Agent 71
Section 20. Duties of Rights Agent 72
Section 21. Change of Rights Agent 77
Section 22. Issuance of New Rights Certificates 79
Section 23. Redemption and Termination 80
Section 24. Notice of Certain Events 83
Section 25. Notices 85
Section 26. Supplements and Amendments 87
Section 27. Successors 88
Section 28. Determinations and Actions by the Board of
Directors, etc. 89
Section 29. Benefits of This Agreement 90
Section 30. Severability 90
Section 31. Governing Law 91
Section 32. Counterparts 91
Section 33. Descriptive Headings 91
RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of March 28, 1995 (the
"Agreement"), between COLLINS INDUSTRIES, INC., a Missouri
corporation (the "Company"), and MELLON BANK, N.A., as rights
agent (the "Rights Agent").
W I T N E S S E T H
WHEREAS, on March 28, 1995 (the "Rights Dividend
Declaration Date"), the Board of Directors of the Company (the
"Board of Directors") authorized and declared a dividend
distribution (the "Dividend") of one Right (as defined below) for
each share of common stock, $.10 par value per share, of the
Company (the "Common Stock") outstanding at the close of business
on April 20, 1995 (the "Record Date"), and has authorized the
issuance of one Right (as such number may hereinafter be adjusted
pursuant to the provisions of Section 11(p) hereof) for each
share of Common Stock so outstanding or issued between the Record
Date (whether originally issued or delivered from the Company's
treasury) and the Expiration Date (as defined in Section 7(a)
hereof), each Right initially representing the right to purchase
one one-hundredth of a share of Series A Junior Participating
Preferred Stock of the Company (a "Preferred Stock Unit") having
the rights, powers and preferences set forth in the form of
Certificate of Designation, Preferences and Rights attached
hereto as Exhibit A, upon the terms and subject to the conditions
hereinafter set forth (the "Rights");
NOW, THEREFORE, in consideration of the premises and
the mutual agreements herein set forth, the parties hereby agree
as follows:
Section 1. Certain Definitions. For purposes of this
Agreement, in addition to the other capitalized terms defined
elsewhere in this Agreement, the following terms have the
meanings indicated:
(a) "Acquiring Person" (i) shall mean any person (as
defined below) who or which, together with all Affiliates and
Associates (as defined below) of such Person, shall be the
Beneficial Owner (as defined below) of twenty percent (20%) or
more of the shares of Common Stock then outstanding; but
(ii) shall not include the Company, any Subsidiary (as defined
below) of the Company, any employee benefit plan of the Company
or of any Subsidiary of the Company, or any Person or entity
organized, appointed or established by the Company for or
pursuant to the terms of any such plan (an "Exempt Person").
Notwithstanding the foregoing, no Person shall become an
"Acquiring Person" as the result of an acquisition of shares of
Common Stock by the Company which, by reducing the number of
shares outstanding, increases the proportionate number of shares
beneficially owned by such Person to twenty percent (20%) or more
of the shares of Common Stock then outstanding; provided,
however, that if a Person shall become the Beneficial Owner of
twenty percent (20%) or more of the shares of Common Stock then
outstanding by reason of share purchases by the Company and
shall, after such share purchases by the Company, become the
Beneficial Owner of any additional shares of Common Stock, then
such Person shall then be deemed to be an "Acquiring Person."
(b) "Adverse Person" shall mean any Person declared to be
an Adverse Person by the Board of Directors upon determination
that the criteria set forth in Section 11(a)(ii)(D) apply to such
Person.
(c) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of 1934,
as amended and in effect on the date of this Agreement (the
"Exchange Act").
(d) A Person shall be deemed the "Beneficial Owner" of, and
shall be deemed to "beneficially own," any securities:
(i) which such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has the right to
acquire (whether such right is exercisable immediately or only after the
passage of time) pursuant to any agreement, arrangement or
understanding (whether or not in writing) or upon the exercise of
conversion rights, exchange rights, rights, warrants or options,
or otherwise; provided, however, that a Person shall not be
deemed the "Beneficial Owner" of, or to "beneficially own," (A)
securities tendered pursuant to a tender or exchange offer made
by such Person or any of such Person's Affiliates or Associates
until such tendered securities are accepted for purchase or
exchange, or (B) securities issuable upon exercise of Rights at
any time prior to the occurrence of a Triggering Event (as
defined below), or (C) securities issuable upon exercise of
Rights from and after the occurrence of a Triggering Event which
Rights were acquired by such Person or any of such Person's
Affiliates or Associates prior to the Distribution Date or
pursuant to Section 3(a) or Section 22 hereof (the "Original
Rights") or pursuant to Section 11(i) hereof in connection with
an adjustment made with respect to any Original Rights;
(ii) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to vote or
dispose of or has "beneficial ownership" of (as determined
pursuant to Rule 13d-3 of the General Rules and Regulations under
the Exchange Act), including pursuant to any agreement,
arrangement or understanding, whether or not in writing;
provided, however, that a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially own," any security
under this subparagraph (ii) as a result of an agreement,
arrangement or understanding to vote such security if such
agreement, arrangement or understanding: (A) arises solely from
a revocable proxy given in response to a public proxy or consent
solicitation made pursuant to, and in accordance with, the
applicable provisions of the General Rules and Regulations under
the Exchange Act, and (B) is not also then reportable by such
Person on Schedule 13D under the Exchange Act (or any comparable
or successor report); or
(iii) which are beneficially owned, directly or
indirectly, by any other Person (or any Affiliate or Associate
thereof) with which such Person (or any of such Person's
Affiliates or Associates) has any agreement, arrangement or
understanding (whether or not in writing) for the purpose of
acquiring, holding, voting (except pursuant to a revocable proxy
as described in the proviso to subparagraph (ii) of this
paragraph (d)) or disposing of any voting securities of the
Company; provided, however, that nothing in this paragraph (d)
shall cause a person engaged in business as an underwriter of
securities to be the "Beneficial Owner" of, or to "beneficially
own," any securities acquired through such Person's participation
in good faith in a firm commitment underwriting until the
expiration of forty (40) days after the date of such acquisition.
(e) "Business Day" shall mean any day other than a
Saturday, Sunday or a day on which banking institutions in the
State of Missouri are authorized or obligated by law or executive
order to close.
(f) "Close of Business" on any given date shall mean 5:00
P.M., Hutchinson, Kansas time, on such date; provided, however,
that if such date is not a Business Day it shall mean 5:00 P.M.,
Hutchinson, Kansas time, on the next succeeding Business Day.
(g) "Common Stock" when used with reference to the Company
shall mean the common stock, $.10 par value per share, of the
Company, except that "Common Stock" when used with reference to
any Person other than the Company shall mean the capital stock or
other equity securities or other interests with the greatest
voting power of (i) such other Person, or (ii) if such other
Person is a Subsidiary of another Person, of the Person or
Persons which have the ultimate power to control or direct the
management of such first-mentioned Person.
(h) "Person" shall mean any individual, firm, corporation,
partnership, limited liability company or other entity, and shall
include any successor (by merger or otherwise) of such Person.
(i) "Preferred Stock" shall mean shares of Series A Junior
Participating Preferred Stock, $1.00 par value per share, of the
Company (the "Preferred Stock"), and, to the extent that there
are not a sufficient number of shares of Preferred Stock
authorized to permit the full exercise of the Rights, any other
series of preferred stock of the Company designated for such
purpose containing terms substantially similar to the terms of
the Preferred Stock.
(j) "Section 11(a)(ii) Event" shall mean any event
described in Section 11(a)(ii)(A), (B), (C) or (D) hereof.
(k) "Section 13 Event" shall mean any event described in
clauses (x), (y) or (z) of Section 13(a) hereof.
(l) "Stock Acquisition Date" shall mean the first date of
public announcement (which, for purposes of this definition,
shall include, without limitation, the issuance of a press
release or the filing of a report pursuant to Section 13(d) under
the Exchange Act) by or on behalf of either the Company or an
Acquiring Person that an Acquiring Person has become such.
(m) "Subsidiary" shall mean, with reference to any Person,
any corporation of which an amount of voting securities
sufficient to elect at least a majority of the directors of such
corporation is beneficially owned, directly or indirectly, by
such Person, or otherwise controlled by such Person.
(n) "Triggering Event" shall mean any Section 11(a)(ii)
Event or any Section 13 Event.
(o) "Unaffiliated Director" shall mean (i) any member of
the Board of Directors, while such Person is a member of the
Board of Directors, who is not an Acquiring Person or an Adverse
Person, or an Affiliate or Associate of an Acquiring Person or an
Adverse Person, or a representative of an Acquiring Person or an
Adverse Person or of any such Affiliate or Associate, or a party
(other than an Exempt Person) to an Extraordinary Transaction (as
defined in Section 23(b) hereof), and who was a member of the
Board of Directors prior to the date of this Agreement, or
(ii) any Person who subsequently becomes a member of the Board of
Directors, while such Person is a member of the Board of
Directors, who is not an Acquiring Person or an Adverse Person,
or an Affiliate or Associate of an Acquiring Person or an Adverse
Person, or a representative of an Acquiring Person or an Adverse
Person or of any such Affiliate or Associate, or a party (other
than an Exempt Person) to an Extraordinary Transaction, if such
Person's nomination for election or election to the Board of
Directors is recommended or approved by a majority of the
Unaffiliated Directors.
Section 2. Appointment of Rights Agent. The Company
hereby appoints the Rights Agent to act as agent for the Company
and the holders of the Rights (who, in accordance with Section 3
hereof, shall prior to the Distribution Date also be the holders
of the Common Stock) in accordance with the terms and conditions
hereof, and the Rights Agent hereby accepts such appointment.
The Company may from time to time appoint such co-Rights Agents
as it may deem necessary or desirable.
Section 3. Issue of Rights Certificates. (a) Until the
earliest of (i) the Close of Business on the twentieth (20th)
Business Day after the Stock Acquisition Date (or, if the
twentieth (20th) Business Day after the Stock Acquisition Date
occurs before the Record Date, the Close of Business on the
Record Date), (ii) the Close of Business on the twentieth (20th)
Business Day after the earlier of the date that a tender or
exchange offer by any Person (other than an Exempt Person) is
commenced within the meaning of Rule 14d-2(a) of the General
Rules and Regulations under the Exchange Act or the date of the
first public announcement of the intention of any such Person to
commence a tender or exchange offer, if upon consummation
thereof, such Person would be the Beneficial Owner of twenty
percent (20%) or more of the shares of Common Stock then
outstanding, and (iii) the Close of Business on the twentieth
(20th) Business Day after a majority of the Unaffiliated
Directors determines, pursuant to the criteria set forth in
Section 11(a)(ii)(D) hereof, that a Person is an Adverse Person
unless such determination is withdrawn by a majority of the
Unaffiliated Directors within such period as provided in that
Section (the earliest of (i), (ii) and (iii) being herein
referred to as the "Distribution Date"), (x) the Rights will be
evidenced (subject to the provisions of paragraph (b) of this
Section 3) by the certificates for the Common Stock registered in
the names of the holders of the Common Stock (which certificates
for Common Stock shall be deemed also to be certificates for
Rights) and not by separate certificates, and (y) the Rights will
be transferable only in connection with the transfer of the
underlying shares of Common Stock (including a transfer to the
Company). As soon as practicable after the Distribution Date,
the Company will notify the Rights Agent that the Distribution
Date has occurred, and as soon as practicable thereafter, the
Company will execute, the Rights Agent will countersign, and the
Rights Agent will send by first-class, insured, postage prepaid
mail, to each record holder of the Common Stock as of the close
of business on the Distribution Date, at the address of such
holder shown on the records of the Company, one or more right
certificates, substantially in the form of Exhibit B hereto (the
"Rights Certificates"), evidencing one Right for each share of
Common Stock so held, subject to adjustment as provided herein.
In the event that an adjustment in the number of Rights per share
of Common Stock has been made pursuant to Section 11(p) hereof,
at the time of distribution of the Right Certificates, the
Company shall make the necessary and appropriate rounding
adjustments (in accordance with Section 14(a) hereof) so that
Rights Certificates representing only whole numbers of Rights are
distributed and cash is paid in lieu of any fractional Rights.
As of and after the Distribution Date, the Rights will be
evidenced solely by such Rights Certificates.
(b) Pursuant to the Dividend, the holders of shares of
Common Stock as of the Record Date are entitled to Rights
relating to those shares. As promptly as practicable following
the Record Date, the Company will send a copy of a Summary of
Rights, in substantially the form attached hereto as Exhibit C
(the "Summary of Rights"), by first-class, postage prepaid mail,
to each record holder of the Common Stock as of the Close of
Business on the Record Date, at the address of such holder shown
on the records of the Company. With respect to certificates for
the Common Stock outstanding as of the Record Date, until the
Distribution Date, the Rights will be evidenced by such
certificates for the Common Stock and the registered holders of
the Common Stock shall also be the registered 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 Common Stock in respect
of which Rights have been issued shall also constitute the
transfer of the Rights associated with such shares of Common
Stock.
(c) Rights shall be issued in respect of all shares of
Common Stock that are issued after the Record Date but prior to
the Expiration Date (as defined in Section 7(a) hereof).
Certificates for shares of Common Stock that are issued or become
outstanding (whether originally issued or from the Company's
treasury, including, without imitation, reacquired Common Stock
referred to in the last sentence of this Section 3(c)) after the
Record Date but Prior to the earlier of the Distribution Date or
the Expiration Date shall bear the following legend (the
"Legend"):
This certificate also evidences and
entitles the holder hereof to certain Rights
as set forth in the Rights Agreement between
Collins Industries, Inc. (the "Company") and
Mellon Bank, N.A. (the "Rights Agent") dated
as of March 28, 1995 (the "Rights
Agreement"), the terms of which are
incorporated herein by reference and a copy
of which is on file at the principal offices
of the Company. Under certain circumstances
set forth in the Rights Agreement, such
Rights will be evidenced by separate
certificates and will no longer be evidenced
by this certificate. The Company will mail
to the holder of this certificate a copy of
the Rights Agreement, as in effect on the
date of mailing, without charge promptly
after receipt of a written request therefor.
Under certain circumstances set forth in the
Rights Agreement, Rights issued to, or held
by, any Person who is, was or becomes an
Acquiring Person, an Adverse Person or any
Affiliate or Associate thereof (as such terms
are defined in the Rights Agreement), whether
currently held by or on behalf of such Person
or by any subsequent holder, may become null
and void.
Alternatively, such certificates shall bear a summary legend (the
"Summary Legend") referring to teh Legend, and the Legend shall be
attached to such certificates. With respect to such certificates
containing the Legend or the Summary Legend, until the earlier
of (i) the Distribution Date and (ii) the Expiration Date,
the Rights associated with the Common Stock represented by such
certificates shall be evidenced by such certificates alone and
registered holders of Common Stock shall also be the registered
holders of the associated Rights, and the transfer of any of such
certificates shall also constitute the transfer of the Rights
associated with the Common Stock represented by such
certificates. In the event that the Company purchases or
acquires shares of Common Stock after the Record Date but prior
to the Distribution Date, any Rights associated with such Common
Stock shall be deemed cancelled and retired so that the Company
shall not be entitled to exercise any Rights associated with the
shares of Common Stock which are no longer outstanding.
Section 4. Form of Rights Certificates. (a) The Rights
Certificates (and the forms of election to purchase and of
assignment to be printed on the reverse thereof) shall each be
substantially in the form set forth in Exhibit B hereto and may
have such marks of identification or designation and such
legends, summaries or endorsements printed thereon as the Company
may deem appropriate and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply
with any applicable law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock
exchange on which the Rights may from time to time be listed, or
to conform to usage. Subject to the provisions of Section 11 and
Section 22 hereof, the Rights Certificates, whenever distributed,
shall be dated as of the Record Date and on their face shall
entitle the holders thereof to purchase such number of Preferred
Stock Units as shall be set forth therein at the price set forth
therein (such exercise price per Preferred Stock Unit being
referred to herein as the "Purchase Price"), but the amount and
type of securities purchasable upon the exercise of each Right
and the Purchase Price thereof shall be subject to adjustment as
provided herein.
(b) Any Rights Certificate issued pursuant to Section 3(a)
or Section 22 hereof that represents Rights beneficially owned
by: (i) an Acquiring Person, an Adverse Person or any Associate
or Affiliate of an Acquiring Person or an Adverse Person, (ii) a
transferee of an Acquiring Person or an Adverse Person (or of any
such Associate or Affiliate) who becomes a transferee after the
Acquiring Person or the Adverse Person becomes such, or (iii) a
transferee of an Acquiring Person or an Adverse Person (or of any
such Associate or Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person or the Adverse Person
becoming such and receives such Rights pursuant to either (A) a
transfer (whether or not for consideration) from the Acquiring
Person or the Adverse Person to holders of equity interests in
such Acquiring Person or Adverse Person or to any Person with
whom such Acquiring Person or Adverse Person has any continuing
agreement, arrangement or understanding regarding the transferred
Rights of (B) a transfer that a majority of the Unaffiliated
Directors has determined is part of a plan, arrangement or
understanding that has as a primary purpose or effect avoidance
of Section 7(e) hereof. Any Right Certificate issued pursuant to
Section 6 or Section 11 hereof upon transfer, exchange,
replacement or adjustment of any other Rights Certificate
referred to in this Section 4(b), shall contain (to the extent
feasible) the following legend:
The Rights represented by this Rights
Certificate are or were beneficially owned by
a Person who was or became an Acquiring
Person or an Adverse Person or an Affiliate
or Associate of an Acquiring Person or an
Adverse Person (as such terms are defined in
the Rights Agreement). Accordingly, this
Rights Certificate and the Rights represented
hereby may become null and void in the
circumstances specified in Section 7(e) of
such Agreement.
Section 5. Countersignature and Registration.
(a) The Rights Certificates shall be executed on behalf of
the Company by its Chairman of the Board, its President or any
Vice President, either manually or by facsimile signature, and
shall have affixed thereto the Company's seal or a facsimile
thereof which shall be attested by the Secretary or an Assistant
Secretary of the Company, either manually or by facsimile
signature. The Rights Certificates shall be countersigned,
either manually or by facsimile signature, by the Rights Agent
and shall not be valid for any purpose unless so countersigned.
In case any officer of the Company who shall have signed any of
the Rights Certificates shall cease to be such officer of the
Company before countersignature by the Rights Agent and issuance
and delivery by the Company, such Rights Certificates,
nevertheless, may be countersigned by the Rights Agent and issued
and delivered by the Company with the same force and effect as
though the person who signed such Rights Certificate had not
ceased to be such officer of the Company; and any Rights
Certificates may be signed on behalf of the Company by any person
who, at the actual date of the execution of such Rights
Certificate, shall be a proper officer of the Company to sign
such Rights Certificate, although at the date of the execution of
this Rights Agreement any such person was not such an officer.
(b) Following the Distribution Date, the Rights Agent will
keep or cause to be kept, at its principal office or offices
designated as the appropriate place for surrender of Rights
Certificates upon exercise or transfer, books for registration
and transfer of the Rights Certificates issued hereunder. Such
books shall show the names and addresses of the respective
holders of the Rights Certificates, the number of Rights
evidenced on its face by each of the Rights Certificates, the
certificate number of each of the Rights Certificates, and the
date of each of the Rights Certificates.
Section 6. Transfer, Split Up, Combination and Exchange
of Rights Certificates; Mutilated, Destroyed, Lost or Stolen
Rights Certificates.
(a) Subject to the provisions of Section 4(b), Section 7(e)
and Section 14 hereof, at any time after the Close of Business on
the Distribution Date and at or prior to the Close of Business on
the Expiration Date, any Rights Certificate or Certificates may
be transferred, split up, combined or exchanged for another
Rights Certificate or Certificates, entitling the registered
holder to purchase a like number of Preferred Stock Units (or,
following a Triggering Event, Preferred Stock Units, Common
Stock, other securities, cash or other assets, as provided in
Section 11(a)(iii) hereof) as the Rights Certificate or
Certificates surrendered then entitled such holder (or former
holder in the case of a transfer) to purchase. Any registered
holder desiring to transfer, split up, combine or exchange any
Rights Certificate or Certificates shall make such request in
writing delivered to the Rights Agent and shall surrender the
Rights Certificate or Certificates to be transferred, split up,
combined or exchanged at the principal office or offices of the
Rights Agent designated for such purpose. Neither the Rights
Agent nor the Company shall be obligated to take any action
whatsoever with respect to the transfer of any such surrendered
Rights Certificate until the registered holder shall have
completed and signed the certificate contained in the form of
assignment on the reverse side of such Rights Certificate and
shall have provided such additional evidence of the identity of
the Beneficial Owner (or former Beneficial Owner) or Affiliates
or Associates thereof as the Company shall reasonably request.
Thereupon the Rights Agent shall, subject to Section 4(b),
Section 7(e) and Section 14 hereof, countersign and deliver to
the Person entitled thereto a Rights Certificate or Rights
Certificates, as the case may be, as so requested. The Company
may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any
transfer, split up, combination or exchange of Rights
Certificates.
(b) Upon receipt by the Company and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Rights Certificate, and, in case
of loss, theft or destruction, of indemnity or security
reasonably satisfactory to them, and reimbursement to the Company
and the Rights Agent of all reasonable expenses incidental
thereto, and upon surrender to the Rights Agent and cancellation
of the Rights Certificate if mutilated, the Company will execute
and deliver a new Rights Certificate of like tenor to the Rights
Agent for countersignature and delivery to the registered owner
in lieu of the Rights Certificate so lost, stolen, destroyed or
mutilated.
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights.
(a) Subject to Section 7(e) hereof, the registered holder
of any Rights Certificate may exercise the Rights evidenced
thereby (except as otherwise provided herein including, without
limitation, the restrictions on exercisability set forth in
Section 9(c), Section 11(a)(iii) and Section 23(a) hereof) in
whole or in part at any time after the Distribution Date upon
surrender of the Rights Certificate, with the form of election to
purchase and the certificate on the reverse side thereof duly
executed, to the Rights Agent at the principal office or offices
of the Rights Agent designated for such purpose, together with
payment of the aggregate Purchase Price with respect to the total
number of Preferred Stock Units (or Common Stock, securities,
cash or other assets, as provided in Section 11(a)(iii) hereof)
as to which such surrendered Rights are then exercisable, at or
prior to the earlier of (i) the Close of Business on April 1,
2005 (the "Final Expiration Date"), or (ii) the time at which the
Rights are redeemed as provided in Section 23 hereof (the earlier
of (i) and (ii) being herein referred to as the "Expiration
Date").
(b) The Purchase Price for each Preferred Stock Unit
pursuant to the exercise of a Right shall be initially Seven
Dollars and Forty Four Cents ($7.44), shall be subject to
adjustment from time to time as provided in Section 11 and
Section 13(a) hereof, and shall be payable in lawful money of the
United States of America in accordance with paragraph (c) below.
(c) Upon receipt of a Rights Certificate representing
exercisable Rights, with the form of election to purchase and the
certificate duly executed, accompanied by proper payment, with
respect to each Right so exercised, of the Purchase Price per
Preferred Stock Unit (or Common Stock, other securities, cash or
other assets, as provided in Section 11(a)(iii) hereof) to be
purchased as set forth below and an amount equal to any
applicable transfer tax, the Rights Agent shall, subject to
Section 20(k) hereof, thereupon promptly (i)(A) requisition from
any transfer agent of the shares of Preferred Stock (or make
available, if the Rights Agent is the transfer agent for such
shares) certificates for the total number of Preferred Stock
Units to be purchased and the Company hereby irrevocably
authorizes its transfer agent to comply with all such requests,
or (B) if the Company shall have elected to deposit that number
of shares of Preferred Stock that is reasonably expected to be
issuable upon exercise of the Rights hereunder with a depositary
agent, requisition from the depositary agent depositary receipts
representing such number of Preferred Stock Units as are to be
purchased (in which case certificates for the shares of Preferred
Stock represented by such receipts shall be deposited by the
transfer agent with the depositary agent) and the Company will
direct the depositary agent to comply with such request, (ii)
requisition from the Company the amount of cash, if any, to be
paid in lieu of fractional shares in accordance with Section 14
hereof, (iii) after receipt of such certificates or depositary
receipts, cause the same to be delivered to or upon the order of
the registered holder of such Rights Certificate, registered in
such name or names as may be designated by such holder; provided,
however, that, if any such name or names so designated other than
that of the registered holder of such Rights Certificate, then
neither the Rights Agent nor the Company shall be obligated to
take any action whatsoever with respect to such delivery of such
certificates or depositary receipts until the registered holder
shall have completed and signed the Certificate contained in the
form of assignment on the reverse side of the Rights Certificate
and shall have provided such additional evidence of the identity
of the Beneficial Owner (or former Beneficial Owner) or
Affiliates or Associates thereof as the Company shall reasonably
request, and (iv) after receipt thereof, deliver such cash, if
any, to or upon the order of the registered holder of such Rights
Certificate. The payment of the Purchase Price (as such amount
may be reduced pursuant to Section 11(a)(iii) hereof) shall be
made in cash or by certified bank check or bank draft or money
order payable to the order of the Company. In the event that the
Company is obligated to issue other securities (including Common
Stock) of the Company, pay cash and/or distribute other property
pursuant to Section 11(a)(iii) hereof, the Company will make all
arrangements necessary so that such other securities, cash and/or
other property are available for distribution by the Rights
Agent, if and when appropriate.
(d) In case the registered holder of any Rights Certificate
shall exercise less than all the Rights evidenced thereby, a new
Rights Certificate evidencing Rights equivalent to the Rights
remaining unexercised shall be issued by the Rights Agent and
delivered to, or upon the order of, the registered holder of such
Rights Certificate, registered in such name or names as may be
designated by such holder, subject to the provisions of Section
14 hereof; provided, however, that, if any such name or names so
designated is other than that of the registered holder of such
Rights Certificate, then neither the Rights Agent nor the Company
shall be obligated to take any action whatsoever with respect to
such issuance of such new Rights Certificate until the registered
holder shall have completed and signed the Certificate contained
in the form of assignment on the reverse side of the Rights
Certificate and shall have provided such additional evidence of
the identity of the Beneficial Owner (or former Beneficial Owner)
or Affiliates or Associates thereof as the Company shall
reasonably request.
(e) Notwithstanding anything in this Agreement to the
contrary, from and after the first occurrence of a Section
11(a)(ii) Event, any Rights beneficially owned by (i) an
Acquiring Person, an Adverse Person, or an Associate or Affiliate
of an Acquiring Person or an Adverse Person, (ii) a transferee of
an Acquiring Person or an Adverse Person (or of any such
Associate or Affiliate) who becomes a transferee after the
Acquiring Person or the Adverse Person becomes such, or (iii) a
transferee of an Acquiring Person or an Adverse Person (or of any
such Associate or Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person or the Adverse Person
becoming such and receives such Rights pursuant to either (A) a
transfer (whether or not for consideration) from the Acquiring
Person or the Adverse Person to holders of equity interests in
such Acquiring Person or Adverse Person or to any Person with
whom the Acquiring Person or the Adverse Person has any
continuing agreement, arrangement or understanding regarding the
transferred Rights or (B) a transfer that a majority of the
Unaffiliated Directors has determined is part of a plan,
arrangement or understanding that has as a primary purpose or
effect the avoidance of this Section 7(e), shall become null and
void without any further action and no holder of such Rights
shall have any rights whatsoever with respect to such Rights,
whether under any provision of this Agreement or otherwise. As
soon as practicable after the occurrence of an event that renders
certain of the Rights null and void as provided in this Section
7(e), the Company shall notify the Rights Agent of such event.
The Company shall use all reasonable efforts to insure that the
provisions of this Section 7(e) and Section 4(b) hereof are
complied with, but shall have no liability to any holder of
Rights Certificates or other Person as a result of its failure to
make any determinations with respect to an Acquiring Person or an
Adverse Person or any of their respective Affiliates, Associates
or transferees hereunder.
(f) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Company shall be
obligated to undertake any action with respect to a registered
holder upon the occurrence of any purported exercise as set forth
in this Section 7 unless such registered holder shall have
(i) completed and signed the certificate contained in the form of
election to purchase set forth on the reverse side of the Rights
Certificate surrendered for such exercise, and (ii) provided such
additional evidence of the identity of the Beneficial Owner (or
former Beneficial Owner) or Affiliates or Associates thereof as
the Company shall reasonably request.
Section 8. Cancellation and Destruction of Rights
Certificates. All Rights Certificates surrendered for the
purpose of exercise, transfer, split up, combination or exchange
shall, if surrendered to the Company or any of its agents, be
delivered to the Rights Agent for cancellation or in cancelled
form, or, if surrendered to the Rights Agent, shall be cancelled
by it, and no Rights Certificates shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this
Agreement. The Company shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall so cancel
and retire, any other Rights Certificate purchased or acquired by
the Company otherwise than upon the exercise thereof. The Rights
Agent shall deliver all cancelled Rights Certificates to the
Company, or shall, at the written request of the Company, destroy
such cancelled Rights Certificates, and in such case shall
deliver a certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Capital
Stock.
(a) The Company covenants and agrees that it will cause to
be reserved and kept available out of its authorized and unissued
shares of Preferred Stock (and, following the occurrence of a
Triggering Event, out of its authorized and unissued shares of
Preferred Stock, Common Stock and/or other securities, if
required pursuant to Section 11(a)(iii) hereof, or out of its
authorized and issued shares held in its treasury), that number
of shares of Preferred Stock (and, following the occurrence of a
Triggering Event, Preferred Stock, Common Stock and/or other
securities if required pursuant to Section 11(a)(iii) hereof)
which, as provided in this Agreement, is reasonably expected to
be sufficient to permit the exercise in full of all outstanding
Rights.
(b) If and so long as the shares of Preferred Stock (and,
following the occurrence of a Triggering Event, Preferred Stock,
Common Stock and/or other securities, as provided in Section
11(a)(iii) hereof) issuable and deliverable upon the exercise of
the Rights may be listed on any national securities exchange, the
Company shall use its best efforts to cause, from and after such
time as the Rights become exercisable, all shares reserved for
such issuance to be listed on such exchange upon official notice
of issuance upon such exercise.
(c) The Company shall use its best efforts to (i) file, as
soon as practicable following the earliest date after the first
occurrence of a Section 11(a)(ii) Event on which the
consideration to be delivered by the Company upon exercise of the
Rights has been determined in accordance with Section 11(a)(iii)
hereof, or as soon as is required by law following the
Distribution Date, as the case may be, a registration statement
under the Securities Act of 1933 (the "Act"), with respect to the
securities purchasable upon exercise of the Rights on an
appropriate form, (ii) cause such registration statement to
become effective as soon as practicable after such filing, and
(iii) cause such registration statement to remain effective (with
a prospectus at all times meeting the requirements of the Act)
until the Expiration Date. The Company will also take such
action as may be appropriate under, or to ensure compliance with,
the securities or "blue sky" laws of the various states in
connection with the exercisability of the Rights. The Company
may temporarily suspend, for a period of time not to exceed one
hundred twenty (120) days after the date set forth in clause (i)
of the first sentence of this Section 9(c), the exercisability of
the Rights in order to prepare and file such registration
statement and permit it to become effective. Upon any such
suspension, the Company shall issue a public announcement stating
that the exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time as the
suspension is no longer in effect. Notwithstanding any provision
of this Agreement to the contrary, the Rights shall not be
exercisable in any jurisdiction if the requisite qualification in
such jurisdiction shall not have been obtained, the exercise
thereof shall not be permitted under applicable law or a
registration statement shall not have been declared effective.
(d) The Company covenants and agrees that it will take all
such action as may be necessary to ensure that all Preferred
Stock Units (and, following the occurrence of a Triggering Event,
Preferred Stock, Common Stock and/or other securities if required
pursuant to Section 11(a)(iii) hereof) delivered upon exercise of
Rights shall, at the time of delivery of the certificates for
such shares (subject to payment of the Purchase Price), be duly
authorized, validly issued, 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 of any certificates
for a number of Preferred Stock Units (or common Stock and/or
other securities, if required pursuant to Section 11(a)(iii)
hereof) upon exercise of any Rights. The Company shall 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 a number of
Preferred Stock Units (or Common Stock and/or other securities,
if required pursuant to Section 11(a)(iii) hereof) in respect of
a name other than that of the registered holder of the Rights
Certificates evidencing Rights surrendered for exercise or to
issue or deliver any certificates for a number of Preferred Stock
Units (or Common Stock and/or other securities, as provided in
Section 11(a)(iii) hereof) in respect of a name other than that
of the registered holder upon the exercise of any Rights until
such tax shall have been paid (any such tax being payable by the
holder of such Rights Certificate at the time of surrender) or
until it has been established to the Company's satisfaction that
no such tax is due.
Section 10. Preferred Stock Record Date. Each Person in
whose name any certificate for a number of Preferred Stock Units
(or Common Stock and/or other securities, as provided in Section
11(a)(iii) hereof) is issued upon the exercise of Rights shall
for all purposes be deemed to have become the holder of record of
the shares of Preferred Stock or portions thereof (or Common
Stock and/or other securities, as provided in Section 11(a)(iii)
hereof) represented thereby on, and such certificate shall be
dated, the date upon which the Rights Certificate evidencing such
Rights was duly surrendered and payment of the Purchase Price
(and all applicable transfer taxes) was made; provided, however,
that if the date of such surrender and payment is a date upon
which the Preferred Stock (or Common Stock and/or other
securities, as provided in Section 11(a)(iii) hereof) transfer
books of the Company are closed, such Person shall be deemed to
have become the record holder of such shares (fractional or
otherwise) on, and such certificate shall be dated, the next
succeeding Business Day on which the Preferred Stock (or Common
Stock and/or other securities, as provided in Section 11(a)(iii)
hereof) transfer books of the Company are open. Prior to the
exercise of the Rights evidenced thereby, the holder of a Rights
Certificate shall not be entitled to any rights of a stockholder
of the Company with respect to shares for which the Rights shall
be exercisable, including without limitation, the right to vote,
to receive dividends or other distributions or to exercise any
preemptive rights, and shall not be entitled to receive any
notice of any proceedings of the Company, except as provided
herein.
Section 11. Adjustment of Purchase Price, Number and Kind
of Shares or Number of Rights. The Purchase Price, the number
and kind of shares covered by each Right and the number of Rights
outstanding are subject to adjustment from time to time as
provided in this Section 11.
(a) (i) In the event the Company shall at any time after the
date of this Agreement (A) declare a dividend on the Preferred
Stock payable in shares of Preferred Stock, (B) subdivide the
outstanding Preferred Stock, (C) combine the outstanding
Preferred Stock into a smaller number of shares, or (D) issue any
shares of its capital stock in a reclassification of the
Preferred Stock (including any such reclassification in
connection with a consolidation or merger in which the Company is
the continuing or surviving corporation), except as otherwise
provided in this Section 11(a) and Section 7(e) hereof, the
Purchase Price in effect at the time of the record date for such
dividend or of the effective date of such subdivision,
combination or reclassification, and the number and kind of
shares of Preferred Stock or other capital stock, as provided in
Section 11(a)(iii) hereof, issuable on such date, shall be
proportionately adjusted so that the holder of any Right
exercised after such time shall be entitled to receive, upon
payment of the Purchase Price then in effect, the aggregate
number and kind of shares of Preferred Stock or other capital
stock, as provided in Section 11(a)(iii) hereof, that, if such
Right had been exercised immediately prior to such date and at a
time when the Preferred Stock transfer books of the Company were
open, he would have owned upon such exercise and been entitled to
receive by virtue of such dividend, subdivision, combination or
reclassification; provided, however, that in no event shall the
consideration to be paid upon the exercise of one Right be less
than the aggregate par value, if any, of the securities issuable
upon exercise of One Right. If an event occurs that would
require an adjustment under both this Section 11(a)(i) and
Section 11(a)(ii) hereof, the adjustment provided for in this
Section 11(a)(i) shall be in addition to, and shall be made prior
to, any adjustment required pursuant to Section 11(a)(ii) hereof.
(ii) In the event:
a) any Acquiring Person, Adverse Person or any Associate
or Affiliate of any Acquiring Person or Adverse Person, at any
time after the Rights Dividend Declaration Date, directly or
indirectly, (1) shall merge into the Company or otherwise combine
with the Company and the Company shall be the continuing or
surviving corporation of such merger or combination and the
Common Stock shall remain outstanding and unchanged, (2) shall,
in one transaction or a series of transactions, transfer any
assets to the Company or to any of its Subsidiaries in exchange
(in whole or in part) for shares of Common Stock, for shares of
other equity securities of the Company, or for securities
exercisable for or convertible into shares of equity securities
of the Company (Common Stock or otherwise) or otherwise obtain
from the Company, with or without consideration, any additional
shares of such equity securities or securities exercisable for or
convertible into shares of such equity securities (other than
pursuant to a pro rata distribution to all holders of Common
Stock), (3) shall sell, purchase, lease, exchange, mortgage,
pledge, transfer or otherwise acquire or dispose of, in one
transaction or a series of transactions, to, from or with (as the
case may be) the Company or any of its Subsidiaries, assets on
terms and conditions less favorable to the Company than the
Company would be able to obtain in arm's-length negotiation with
an unaffiliated third party, other than pursuant to a transaction
set forth in Section 13(a) hereof, (4) shall sell, purchase,
lease, exchange, mortgage, pledge, transfer or otherwise acquire
or dispose of in one transaction or a series of transactions, to,
from or with (as the case may be) the Company or any of its
Subsidiaries (other than incidental to the lines of business, if
any, engaged in as of the date hereof between the Company and
such Acquiring Person or Adverse Person or Associate or Affiliate
thereof) assets having an aggregate fair market value of more
than $5,000,000, other than pursuant to a transaction set forth
in Section 13(a) hereof, (5) shall receive any compensation from
the Company or any of the Company's Subsidiaries other than
compensation of full-time employment as a regular employee at
rates in accordance with the Company's (or its Subsidiaries')
past practices, or (6) shall receive the benefit, directly or
indirectly (except proportionately as a stockholder and except if
resulting from a requirement of law or governmental regulation),
of any loans, advances, guarantees, pledges or other financial
assistance or any tax credits or other tax advantage provided by
the Company or any of its Subsidiaries; or
b) any Person (other than an Exempt Person), alone or
together with its Affiliates and Associates, shall, at any time
after the Rights Dividend Declaration Date, become the Beneficial
Owner of twenty percent (20%) or more of the shares of Common
Stock then outstanding, unless the event causing the twenty
percent (20%) threshold to be crossed is a transaction set forth
in Section 13(a) hereof, or is an acquisition of shares of Common
Stock pursuant to a cash tender offer or an exchange offer
(pursuant to which all holders of shares of Common Stock shall
receive the same securities) for all outstanding shares of Common
Stock at a price and on terms determined by a majority of the
Unaffiliated Directors, after receiving advice from one or more
investment banking firms, to be (1) at a price which is fair to
stockholders (taking into account all factors that such
Unaffiliated Directors deem relevant including, without
limitation, prices that could reasonably be achieved if the
Company or its assets were sold on an orderly basis designed to
realize maximum value) and (2) otherwise in the best interests of
the Company and its stockholders; or
c) during such time as there is an Acquiring Person, there
shall be any reclassification of securities (including any
reverse stock split), or recapitalization of the Company, or any
merger or consolidation of the Company with any of its
Subsidiaries or any other transaction or series of transactions
involving the Company or any of its Subsidiaries, other than a
transaction or transactions to which the provisions of Section
13(a) apply (whether or not with or into or otherwise involving
an Acquiring Person) that has the effect, directly or indirectly,
of increasing by more than 1% the proportionate share of the
outstanding shares of any class of equity securities of the
Company or any of its Subsidiaries which is directly or
indirectly beneficially owned by any Acquiring Person or any
Associate or Affiliate of any Acquiring Person; or
d) a majority of the Unaffiliated Directors shall (1)
declare any Person to be an Adverse Person, upon a determination
that such Person, alone or together with its Affiliates and
Associates, is or has become, at any time after the Rights
Dividend Declaration Date, the Beneficial Owner of not less than
ten percent (10%) of the Common Stock then outstanding, and upon
a determination by a majority of the Unaffiliated Directors,
after reasonable inquiry and investigation, including
consultation with such persons as such Unaffiliated Directors
shall deem appropriate, that (x) such Beneficial Ownership by
such Person is intended to cause the Company to repurchase the
Common Stock beneficially owned by such Person or to cause
pressure on the Company to take action or enter into a
transaction or series of transactions intended to provide such
Person with short-term financial gain under circumstances where
such Unaffiliated Directors determine that the best long-term
interests of the Company and its stockholders would not be served
by taking such action or entering into such transaction or series
of transactions at any time, or (y) such Beneficial Ownership of
such Person is causing or reasonably likely to cause a material
adverse impact (including, but not limited to, impairment of
relationships with customers or impairment of the Company's
ability to maintain its competitive position) on the business or
prospects of the Company; and (2) shall have not withdrawn that
determination prior to the Close of Business on the twentieth
(20th) Business Day following the date of such declaration;
then, promptly following the occurrence of a Section
11(a)(ii) Event, proper provision shall be made so that each
holder of a Right (except as provided below and in Section
7(e) hereof) shall thereafter have the right to receive,
upon exercise thereof at the then current Purchase Price in
accordance with the terms of this Agreement, such number of
Preferred Stock Units as shall equal the result obtained by
(1) multiplying the then current Purchase Price by the then
number of Preferred Stock Units for which a Right was
exercisable immediately prior to the first occurrence of a
Section 11(a)(ii) Event, and (2) dividing that product
(which, following such first occurrence, shall thereafter be
referred to as the "Purchase Price" for each Right and for
all purposes of this Agreement) by 50% of the current market
price (determined pursuant to Section 11(d) hereof) per
share of Common Stock on the date of such first Section
11(a)(ii) Event (such number of shares, the "Adjustment
Shares"). Notwithstanding the foregoing, the quotient
derived in the preceding sentence shall be adjusted for such
events as stock splits, stock dividends and recapitalization
with respect to the Common Stock occurring after the date of
this Agreement by multiplying such quotient by a fraction
the numerator of which is one and the denominator of which
is the number of shares of Common Stock as of the date of
the occurrence of such Section 11(a)(ii) Event that, by
virtue of such stock splits, stock dividends and
recapitalization, is equivalent to one share of Common Stock
as of the date of this Agreement.
(iii) In the event that the number of shares of Preferred
Stock that are authorized by the Company's certificate of
incorporation but are not outstanding or reserved for issuance
for purposes other than upon exercise of the Rights is not
sufficient to permit the exercise in full of the Rights in
accordance with the foregoing subparagraph (ii) of this Section
11(a), then the Company shall: (A) determine the excess of (1)
the value of the Adjustment Shares issuable upon the exercise of
a Right (the "Current Value") over (2) the Purchase Price (such
excess, the "Spread"), and (B) with respect to each Right, make
adequate provision to substitute for the Adjustment Shares, upon
payment of the applicable Purchase Price, (1) cash, (2) a
reduction in the Purchase Price, (3) Common Stock or other equity
securities of the Company which a majority of the Unaffiliated
Directors has deemed to have substantially the same value as the
Preferred Stock Units (such securities being referred to herein
as "Preferred 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 determined by a majority of
the Unaffiliated Directors based upon the advice of a nationally
recognized investment banking firm approved by a majority of the
Unaffiliated Directors; provided, however, if the Company shall
not have made adequate provision to deliver value pursuant to
clause (B) above within thirty (30) days following the later of
(x) the first occurrence of a Section 11(a)(ii) Event and (y) the
date on which the Company's right of redemption pursuant to
Section 23(a) expires (the later of (x) and (y) being referred to
herein as the "Section 11(a)(ii) Trigger Date"), then the Company
shall be obligated to deliver, upon the surrender for exercise of
a Right and without requiring payment of the Purchase Price,
shares of Preferred Stock (to the extent available), then Common
Stock (to the extent available), and then, if necessary, cash,
which in the aggregate are equal in value to the Spread. If a
majority of the Unaffiliated Directors determines in good faith
that it is likely that sufficient additional shares of Preferred
Stock and/or Common Stock could be authorized for issuance upon
exercise in full of the Rights, the thirty (30) day period set
forth above may be extended to the extent necessary, but not more
than ninety (90) days after the Section 11(a)(ii) Trigger Date,
in order that the Company may seek shareholder approval for the
authorization of such additional shares (such period, as it may
be extended, the "Substitution Period"). To the extent that the
Company determines that some action need be taken pursuant to the
first and/or second sentences of this Section 11(a)(iii), the
Company (x) shall provide, subject to Section 7(e) hereof, that
such action shall apply uniformly to all outstanding Rights and
(y) may suspend the exercisability of the Rights until the
expiration of the Substitution period in order to seek any
authorization of additional shares and/or to decide the
appropriate form of distribution to be made pursuant to such
first sentence and to determine the value thereof. In the event
of any such suspension, the Company shall issue a public
announcement stating that the exercisability of the Rights has
been temporarily suspended, as well as a public announcement at
such time as the suspension is no longer in effect. For purposes
of this Section 11(a)(iii), the value of a Preferred Stock Unit
or a share of Common Stock of the Company shall be the current
market price (as determined pursuant to Section 11(d) hereof) per
share of Common Stock on the Section 11(a)(ii) Trigger Date and
the value of any Preferred Stock Equivalent shall be deemed to
have the same value as the Common Stock on such date.
(iv) If the rules of the national securities exchange,
registered as such pursuant to Section 6 of the Exchange Act, or
of the national securities association, registered as such
pursuant to Section 15A of the Exchange Act, on which the Common
Stock is principally traded would prohibit such exchange or
association from listing or continuing to list, or from
authorizing for or continuing quotation and/or transaction
reporting through an inter-dealer quotation system, the Common
Stock or other equity securities of the Company if the Rights
were to be exercised for shares of Common Stock in accordance
with subparagraph (ii) of this Section 11(a) because such
issuance would nullify, restrict or disparately reduce the per
share voting rights of holders of Common Stock, the Company
shall: (A) determine the Spread, and (B) with respect to each
Right, make adequate provision to substitute for the Adjustment
Shares, upon payment of the applicable Purchase Price, (1) cash,
(2) equity securities of the Company, including, without
limitation, Preferred Stock Equivalents, other than securities
that would have the effect of nullifying, restricting or
disparately reducing the per share voting rights of holders of
Common Stock, (3) debt securities of the Company, (4) other
assets, or (5) any combination of the foregoing, having an
aggregate value equal to the Current Value, where such aggregate
value has been determined by a majority of the Unaffiliated
Directors of the Company based upon the advice of a nationally
recognized investment banking firm approved by a majority of the
Unaffiliated Directors; provided, however, if the Company shall
not have made adequate provision to deliver value pursuant to
clause (B) above within thirty (30) days following the Section
11(a)(ii) Trigger Date, then the Company shall be obligated to
deliver, upon the surrender for exercise of a Right and without
requiring payment of the Purchase Price, cash having an aggregate
value equal to the Spread. To the extent that the Company
determines that some action need be taken pursuant to the first
sentence of this Section 11(a)(iv), the Company (x) shall
provide, subject to Section 7(e) hereof, that such action shall
apply uniformly to all outstanding Rights, and (y) may suspend
the exercisability of the Rights, but not longer than ninety (90)
days after the Section 11(a)(ii) Trigger Date, in order to decide
the appropriate form of distribution to be made pursuant to such
first sentence and to determine the value thereof. In the event
of any such suspension, the company shall issue a public
announcement stating that the exercisability of the Rights has
been temporarily suspended, as well as a public announcement at
such time as the suspension is no longer in effect. For purposes
of this Section 11(a)(iv), the value of the Common Stock shall be
the current market price (as determined pursuant to Section 11(d)
hereof) per share of the Common Stock on the Section 11(a)(ii)
Trigger Date and the value of any Preferred Stock Equivalent
shall be deemed to have the same value as the Common Stock on
such date.
(b) In case the Company shall fix a record date for the
issuance of rights, options or warrants to all holders of
Preferred Stock entitling them to subscribe for or purchase (for
a period expiring within forty-five (45) calendar days after such
record date) Preferred Stock (or shares having the same rights,
privileges and preferences as the shares of Preferred Stock (the
"Equivalent Preferred Stock")) or securities convertible into
Preferred Stock or Equivalent Preferred Stock at a price per
share of Preferred Stock or per share of Equivalent Preferred
Stock (or having a conversion price per share, if a security
convertible into Preferred Stock or Equivalent Preferred Stock)
less than the current market price (as determined pursuant to
Section 11(d) hereof) per share of Preferred Stock on such record
date, the Purchase Price to be in effect after such record date
shall be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the
numerator of which shall be the number of shares of Preferred
Stock outstanding on such record date, plus the number of shares
of Preferred Stock that the aggregate offering price of the total
number of shares of Preferred Stock and/or Equivalent Preferred
Stock so to be offered (and/or the aggregate initial conversion
price of the convertible securities so to be offered) would
purchase at such current market price, and the denominator of
which shall be the number of shares of Preferred Stock
outstanding on such record date, plus the number of additional
shares of Preferred Stock and/or Equivalent Preferred Stock to be
offered for subscription or purchase (or into which the
convertible securities so to be offered are initially
convertible). In case such subscription price may be paid by
delivery of consideration part or all of which may be in a form
other than cash, the value of such consideration shall be as
determined in good faith by a majority of the Unaffiliated
Directors, whose determination shall be described in a statement
filed with the Rights Agent and shall be binding on the Rights
Agent and the holders of the Rights. Shares of Preferred Stock
owned by or held for the account of the Company shall not be
deemed outstanding for the purpose of any such computation. Such
adjustment shall be made successively whenever such a record date
is fixed, and in the event that such rights or warrants are not
so issued, the Purchase Price shall be adjusted to be the
Purchase Price that would then be in effect if such record date
had not been fixed.
(c) In case the Company shall fix a record date for a
distribution to all holders of Preferred Stock (including any
such distribution made in connection with a consolidation or
merger in which the Company is the continuing corporation) of
evidences of indebtedness, cash (other than a regular quarterly
cash dividend out of the earnings or retained earnings of the
Company), assets (other than a dividend payable in Preferred
Stock, but including any dividend payable in stock other than
Preferred Stock) or subscription rights or warrants (excluding
those referred to in Section 11(b) hereof), the Purchase Price to
be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to
such record date by a fraction, the numerator of which shall be
the current market price (as determined pursuant to Section 11(d)
hereof) per share of Preferred Stock on such record date, less
the fair market value (as determined in good faith by a majority
of the Unaffiliated Directors, whose determination shall be
described in a statement filed with the Rights Agent) of the
portion of cash, assets or evidences of indebtedness so to be
distributed or of such subscription rights or warrants applicable
to a share of Preferred Stock and the denominator of which shall
be such current market price (as determined pursuant to Section
11(d) hereof) per share of Preferred Stock. Such adjustments
shall be made successively whenever such a record date is fixed,
and in the event that such distribution is not so made, the
Purchase Price shall be adjusted to be the Purchase Price that
would have been in effect if such record date had not been fixed.
(d) (i) For the purpose of any computation hereunder, other
than computations made pursuant to Section 11(a)(iii) or (iv)
hereof, the "current market price" per share of Common Stock on
any date shall be deemed to be the average of the daily closing
prices per share of such Common Stock for the thirty (30)
consecutive Trading Days (as defined below) immediately prior to
such date, and for purposes of computations made pursuant to
Section 11(a)(iii) or (iv) hereof, the "current market price" per
share of Common Stock on any date shall be deemed to be the
average of the daily closing prices per share of such Common
Stock for the ten (10) consecutive Trading Days immediately
following such date; provided, however, that in the event that
the current market price per share of the Common Stock is
determined during a period following the announcement by the
issuer of such Common Stock of (A) a dividend or distribution on
such Common Stock payable in shares of such Common Stock or
securities convertible into shares of such Common Stock (other
than the Rights), or (B) any subdivision combination or
reclassification of such Common Stock, and prior to the
expiration of the requisite thirty (30) Trading Day or ten (10)
Trading Day period, as set forth above, after the ex-dividend
date for such dividend or distribution, or the record date for
such subdivision, combination or reclassification, then, and in
each such case, the "current market price" shall be properly
adjusted to take into account ex-dividend trading (so as to
include the value of the dividend). The closing price for each
day shall be the last sale price, regular way, or, in case no
such sale takes place on such day, the average of the closing bid
and asked prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with respect
to securities listed on the principal national securities
exchange on which the shares of Common Stock are listed or
admitted to trading or, if the shares of Common Stock are not
listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the average
of the high bid and low asked prices in the over-the-counter
market, as reported by the National Association of Securities
Dealers, Inc. Automated Quotation System ("NASDAQ") or such other
system then in use, or, if on any such date the shares of 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 Common Stock approved by a
majority of the Unaffiliated Directors. If on any such date no
market maker is making a market in the Common Stock, the fair
value of such shares on such date as determined in good faith by
a majority of the Unaffiliated Directors shall be used. The term
"Trading Day" shall mean a day on which the principal national
securities exchange on which the shares of Common Stock are
listed or admitted to trading is open for the transaction of
business or, if the shares of Common Stock are not listed or
admitted to trading on any national securities exchange, a
Business Day. If the Common Stock is not publicly held or not so
listed or traded, "current market price" per share shall mean the
fair value per share as determined in good faith by the
Unaffiliated Directors, whose determination shall be described in
a statement filed with the Rights Agent and shall be conclusive
for all purposes.
(ii) For the purpose of any computation hereunder, the
"current market price" per share of Preferred Stock shall be
determined in the same manner as set forth above for the Common
Stock in clause (i) of this Section 11(d) (other than the last
sentence thereof). If the current market price per share of
Preferred Stock cannot be determined in the manner provided above
or if the Preferred Stock is not publicly held or listed or
traded in a manner described in clause (i) of this Section 11(d),
the "current market price" per share of Preferred Stock shall be
conclusively deemed to be an amount equal to 100 (as such number
may be appropriately adjusted for such events as stock splits,
stock dividends and recapitalizations with respect to the Common
Stock occurring after the date of this Agreement) multiplied by
the current market price per share of the Common Stock. If
neither the Common Stock nor the Preferred Stock is publicly held
or so listed or traded, "current market price" per share of the
Preferred Stock shall mean the fair value per share as determined
in good faith by a majority of the Unaffiliated Directors, whose
determination shall be described in a statement filed with the
Rights Agent and shall be conclusive for all purposes. For all
purposes of this Agreement, the "current market Price" of a
Preferred Stock Unit shall be equal to the "current market price"
of one share of Preferred Stock divided by 100.
(e) Anything herein to the contrary notwithstanding, no
adjustment in the Purchase Price shall be required unless such
adjustment would require an increase or decrease of at least one
percent (1%) in the Purchase Price; provided, however, that any
adjustments which by reason of this Section 11(e) are not
required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under
this Section 11 shall be made to the nearest cent or to the
nearest one ten-thousandth of a share of Common Stock or other
share or one millionth of a share of Preferred Stock, as the case
may be. Notwithstanding the first sentence of this
Section 11(e), any adjustment required by this Section 11 shall
be made no later than the earlier of (i) three (3) years from the
date of the transaction which mandates such adjustment, or (ii)
the Expiration Date.
(f) If as a result of an adjustment made pursuant to
Section 11(a)(ii) or Section 13(a) hereof, the holder of any
Right thereafter exercised shall become entitled to receive any
shares of capital stock other than Preferred Stock, thereafter
the number of such other shares so receivable upon exercise of
any Right and the Purchase Price thereof shall be subject to
adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the
Preferred Stock contained in Sections 11(a), (b), (c), (e), (g),
(h), (i), (j), (k) and (m) hereof, and the provisions of
Sections 7, 9, 10, 13 and 14 hereof with respect to the Preferred
Stock shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent
to any adjustment made to the Purchase Price hereunder shall
evidence the right to purchase, at the adjusted Purchase Price,
the number of Preferred Stock Units purchasable from time to time
hereunder upon exercise of the Rights, all subject to further
adjustment as provided herein.
(h) Unless the Company shall have exercised its election as
provided in Section 11(i) hereof, upon each adjustment of the
Purchase Price as a result of the calculations made in
Sections 11(b) and (c) hereof, each Right outstanding immediately
prior to the making of such adjustment shall thereafter evidence
the right to purchase, at the adjusted Purchase Price, that
number of Preferred Stock Units (calculated to the nearest one
millionth) obtained by (i) multiplying (A) the number of
Preferred Stock Units covered by a Right immediately prior to
this adjustment, by (B) 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 Preferred Stock Units
purchasable upon the exercise of a Right. Each of the Rights
outstanding after the adjustment in the number of Rights shall be
exercisable for the number of Preferred Stock Units for which a
Right was exercisable immediately prior to such adjustment. Each
Right held of record prior to such adjustment of the number of
Rights shall become that number of Rights (calculated to the
nearest one ten-thousandth) obtained by dividing the Purchase
Price in effect immediately prior to adjustment of the Purchase
Price by the Purchase Price in effect immediately after
adjustment of the Purchase Price. The Company shall make a
public announcement of its election to adjust the number of
Rights, indicating the record date for the adjustment, and, if
known at the time, the amount of the adjustment to be made. This
record date may be the date on which the Purchase Price is
adjusted or any day thereafter, but, if the Rights Certificates
have been issued, shall be at least ten (10) days later than the
date of the public announcement. If Rights Certificates have
been issued, upon each adjustment of the number of Rights
pursuant to this Section 11(i), the Company shall, as promptly as
practicable, cause to be distributed to holders of record of
Rights Certificates on such record date Rights Certificates
evidencing, subject to Section 14 hereof, the additional Rights
to which such holders shall be entitled as a result of such
adjustment, or, at the option of the Company, shall cause to be
distributed to such holders of record in substitution and
replacement for the Rights Certificates held by such holders
prior to the date of adjustment, and upon surrender thereof, if
required by the Company, new Rights Certificates evidencing all
the Rights to which such holders shall be entitled after such
adjustment. Rights Certificates so to be distributed shall be
issued, executed and countersigned in the manner provided for
herein (and may bear, at the option of the Company, the adjusted
Purchase Price) and shall be registered in the names of the
holders of record of Rights Certificates on the record date
specified in the public announcement.
(j) Irrespective of any adjustment or change in the
Purchase Price or the number of Preferred Stock Units issuable
upon the exercise of the Rights, the Rights Certificates
theretofore and thereafter issued may continue to express the
Purchase Price per Preferred Stock Unit and the number of
Preferred Stock Units that were expressed in the initial Rights
Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below the then stated value, if any,
of the number of Preferred Stock Units issuable upon exercise of
the Rights, the Company shall take any corporate action that may,
in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue, fully paid and
nonassessable, such number of Preferred Stock Units at such
adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that
an adjustment in the Purchase Price be made effective as of a
record date for a specified event, the Company may 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
Preferred Stock Units and other capital stock or securities of
the Company, if any, issuable upon such exercise over and above
the number of Preferred Stock Units and other capital stock or
securities of the Company, if any, issuable upon such exercise on
the basis of the Purchase Price in effect prior to such
adjustment; provided, however, that the Company shall deliver to
such holder a due bill or other appropriate instrument evidencing
such holder's right to receive such additional shares (fractional
or otherwise) or securities upon the occurrence of the event
requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to the
extent that in their good faith judgment a majority of the
Unaffiliated Directors determines to be advisable in order that
any (i) consolidation or subdivision of the Preferred Stock,
(ii) issuance wholly for cash of any shares of Preferred Stock at
less than the current market price, (iii) issuance wholly for
cash of shares of Preferred Stock or securities which by their
terms are convertible into or exchangeable for shares of
Preferred Stock, (iv) stock dividends or (v) issuance of rights,
options or warrants referred to in this Section 11, hereafter
made by the Company to holders of its Preferred Stock shall not
be taxable to such stockholders.
(n) The Company covenants and agrees that it shall not, at
any time after the Distribution Date, (i) consolidate with or
merge with or into any other Person, or (ii) 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 fifty percent (50%) of the assets or
earning power of the Company and its Subsidiaries (taken as a
whole) to any other Person or Persons, if (A) at the time of or
immediately after such consolidation, merger or sale there are
any rights, warrants or other instruments or securities
outstanding or agreements in effect which would substantially
diminish or otherwise eliminate the benefits intended to be
afforded by the Rights or (B) prior to, simultaneously with or
immediately after such consolidation, merger or sale, the
shareholders of the Person who constitutes, or would constitute,
the Principal Party (as defined below in Section 13(a) hereof)
shall have received a distribution of Rights previously owned by
such Person or any of its Affiliates and Associates; provided,
however, that this Section 11(n) shall not apply to any
consolidation or merger with or into a Subsidiary of the Company
or sale to the Company and/or any of its Subsidiaries if such
transactions comply with Section 11(o) hereof.
(o) The Company covenants and agrees that, after the
Distribution Date, it will not, except as permitted by Section 23
or Section 26 hereof, take (or permit any Subsidiary to take) any
action if at the time such action is taken it is reasonably
foreseeable that such action will diminish substantially or
otherwise eliminate the benefits intended to be afforded by the
Rights.
(p) Anything in this Agreement to the contrary
notwithstanding, in the event that the Company shall at any time
after the Rights Dividend Declaration Date and prior to the
Distribution Date (i) declare a dividend on the outstanding
shares of Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding shares of Common Stock, or
(iii) combine the outstanding shares of Common Stock into a
smaller number of shares, the number of Rights associated with
each share of Common Stock then outstanding, or issued or
delivered thereafter but prior to the Distribution Date, shall be
proportionately adjusted so that the number of Rights thereafter
associated with each share of Common Stock following any such
event shall equal the result obtained by multiplying the number
of Rights associated with each share of Common Stock immediately
prior to such event by a fraction the numerator of which shall be
the total number of shares of Common Stock outstanding
immediately prior to the occurrence of the event and the
denominator of which shall be the total number of shares of
Common Stock outstanding immediately following the occurrence of
such event.
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares. Whenever an adjustment is made as provided in
Section 11 and Section 13 hereof, the Company shall (a) promptly
prepare a certificate setting forth such adjustment and a brief
statement of the facts accounting for such adjustment,
(b) promptly file with the Rights Agent, and with each transfer
agent for the Preferred Stock and the Common Stock, a copy of
such certificate, and (c) mail a brief summary thereof to each
holder of a Rights Certificate (or, if prior to the Distribution
Date, to each holder of a certificate representing shares of
Common Stock) in accordance with Section 25 hereof. The Rights
Agent shall be fully protected in relying on any such certificate
and on any adjustment therein contained.
Section 13. Consolidation. Merger or Sale or Transfer of
Assets or Earning Power.
(a) In the event that, on or after the Stock Acquisition
Date, directly or indirectly, (x) the Company shall consolidate
with, or merge with or into, any other Person, and the Company
shall not be the continuing or surviving corporation of such
consolidation or merger, (y) any Person shall consolidate with,
or merge with or into, the Company, and the Company shall be the
continuing or surviving corporation of such consolidation or
merger and, in connection with such consolidation or merger, all
or part of the outstanding shares of Common Stock and/or
Preferred Stock shall be changed into or exchanged for stock or
other securities of any other Person or cash or any other
property, or (z) the Company shall sell or otherwise transfer (or
one or more of its Subsidiaries shall sell or otherwise
transfer), in one transaction or a series of related
transactions, assets or earning power aggregating more than fifty
percent (50%) of the assets or earning power of the Company and
its Subsidiaries (taken as a whole) to any Person or Persons,
then, and in each such case (except as may be contemplated by
Section 13(d) hereof), proper provision shall be made so that:
(i) each holder of a Right, except as provided in Section 7(e)
hereof, shall thereafter have the right to receive, upon the
exercise thereof at the then current Purchase Price in accordance
with the terms of this Agreement, such number of duly authorized,
validly issued, fully paid, nonassessable and freely tradeable
shares of Common Stock of the Principal Party (as defined in
Section 13(b) hereof), not subject to any liens, encumbrances,
rights of first refusal or other adverse claims, as shall be
equal to the result obtained by (A) multiplying the then current
Purchase Price by the number of Preferred Stock Units 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 Preferred Stock Units for which a Right was
exercisable immediately prior to the first occurrence of a
Section 11(a)(ii) Event by the Purchase Price in effect
immediately prior to such first occurrence), and dividing that
product (which, following the first occurrence of a Section 13
Event, shall be referred to as the "Purchase Price" for each
Right and for all purposes of this Agreement) by (B) fifty
percent (50%) of the current market price (determined pursuant to
Section 11(d)(i) hereof) per share of the Common Stock of such
Principal Party on the date of consummation of such Section 13
Event; (ii) such Principal Party shall thereafter be liable for,
and shall assume, by virtue of such Section 13 Event, all the
obligations and duties of the Company pursuant to this Agreement;
(iii) the term "Company" shall thereafter be deemed to refer to
such Principal Party, it being specifically intended that the
provisions of Section 11 hereof shall apply only to such
Principal Party following the first occurrence of a Section 13
Event; (iv) such Principal Party shall take such steps
(including, but not limited to, the reservation of a sufficient
number of shares of its Common Stock) in connection with the
consummation of any such transaction as may be necessary to
assure that the provisions hereof shall thereafter be applicable,
as nearly as reasonably may be, in relation to its shares of
Common Stock thereafter deliverable upon the exercise of the
Rights; and (v) the provisions of Section 11(a)(ii) hereof shall
be of no effect following the first occurrence of any Section 13
Event; provided, however, that this Section 13(a) shall not apply
to the transactions set forth in clauses (x), (y) and (z) above
if (A) in the case of clauses (x) and (y), such other Person is a
Subsidiary of the Company and the transaction complies with
Section 11(o) hereof, and (B) in the case of clause (z), such
Person is the Company and/or any of its Subsidiaries and the
transaction or transactions comply with Section 11(o) hereof.
(b) "Principal Party" shall mean:
(i) in the case of any transaction described in clause (x)
or (y) of the first sentence of Section 13(a), the Person that is
the issuer of any securities into which shares of Common Stock of
the Company are converted in such merger or consolidation, and if
no securities are so issued, the Person that is the other party
to such merger or consolidation; and
(ii) in the case of any transaction described in clause (z)
of the first sentence of Section 13(a), the Person that is the
party receiving the greatest portion of the assets or earning
power transferred pursuant to such transaction or transactions;
provided, however, that in any such case (A) if the Common Stock
of such Person is not at such time and has not been continuously
over the preceding twelve (12) month period registered under
Section 12 of the Exchange Act, and such Person is a direct or
indirect Subsidiary of another Person the Common Stock of which
is and has been so registered, "Principal Party" shall refer to
such other Person, and (B) in case such Person is a Subsidiary,
directly or indirectly, of more than one Person, the Common
Stocks of two or more of which are and have been so registered,
"Principal Party" shall refer to whichever of such Persons is the
issuer of the Common Stock having the greatest aggregate market
value.
(c) The Company shall not consummate any such
consolidation, merger, sale or transfer unless the Principal
Party shall have a sufficient number of authorized shares of its
Common Stock 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 shall have executed and delivered to the Rights
Agent a supplemental agreement providing for the terms set forth
in paragraph (a) and (b) of this Section 13 and further providing
that, as soon as practicable after the date of any consolidation,
merger or sale of assets mentioned in paragraph (a) of this
Section 13, the Principal Party will:
(i) prepare and file a registration statement under the
Act, with respect to the Rights and the securities purchasable
upon exercise of the Rights on an appropriate form, and will use
its best efforts to cause such registration statement to
(A) become effective as soon as practicable after such filing and
(B) remain effective (with a prospectus at all times meeting the
requirements of the Act) until the Expiration Date; and
(ii) will deliver to holders of the Rights historical
financial statements for the Principal Party and each of its
Affiliates which comply in all respects with the requirements for
registration on Form 10 under the Exchange Act.
The provisions of this Section 13 shall similarly apply to
successive mergers or consolidations or sales or other transfers.
In the event that a Section 13 Event shall occur at any time
after the occurrence of a Section 11(a)(ii) Event, the Rights
which have not theretofore been exercised shall thereafter become
exercisable in the manner described in Section 13(a).
(d) Notwithstanding anything in this Agreement to the
contrary, Section 13 shall not be applicable to a transaction
described in subparagraphs (x) and (y) of Section 13(a) if
(i) such transaction is consummated with a Person or Persons who
acquired shares of Common Stock pursuant to a cash tender offer
for all outstanding shares of Common Stock that complies with the
provisions of Section 11(a)(ii)(B) hereof (or a wholly owned
Subsidiary of any such Person or Persons), (ii) the price per
share of Common Stock offered in such transaction is not less
than the price per share of Common Stock paid to all holders of
shares of Common Stock whose shares were purchased pursuant to
such cash tender offer and (iii) the form of consideration being
offered to the remaining holders of shares of Common Stock
pursuant to such transaction is the same as the form of
consideration paid pursuant to such cash tender offer. Upon
consummation of any such transaction contemplated by this
Section 13(d), all Rights hereunder shall expire.
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of
Rights, except prior to the Distribution Date as provided in
Section 11(p) hereof, or to distribute Rights Certificates which
evidence fractional Rights. In lieu of such fractional Rights,
there shall be paid to the registered holders of the Rights
Certificates with regard to which such fractional Rights would
otherwise be issuable, an amount in cash equal to the same
fraction of the current market value of a whole Right. For
purposes of this Section 14(a), the current market value of a
whole Right shall be the closing price of the Rights for the
Trading Day immediately prior to the date on which such
fractional Rights would have been otherwise issuable. The
closing price of the Rights for any day shall be the last sale
price, regular way, or, in case no such sale takes place on such
day, the average of the closing bid and asked prices, regular
way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed 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 approved by a majority of the Unaffiliated Directors. If
on any such date no such market maker is making a market in the
Rights the fair value of the Rights on such date as determined in
good faith by a majority of the Unaffiliated Directors of the
Company shall be used.
(b) The Company shall not be required to issue fractions of
shares of Preferred Stock (other than fractions which are
integral multiples of Preferred Stock Units) upon exercise of the
Rights or to distribute certificates which evidence fractional
shares of Preferred Stock (other than fractions which are
integral multiples of Preferred Stock Units). In lieu of
fractional shares of Preferred Stock that are not integral
multiples of Preferred Stock Units, the Company may pay to the
registered holders of Rights Certificates at the time such Rights
are exercised as herein provided an amount in cash equal to the
same fraction of the current market value of a Preferred Stock
Unit. For purposes of this Section 14(b), the current market
value of a Preferred Stock Unit shall be one one-hundredth of the
closing price of a share of Preferred Stock (as determined
pursuant to Section 11(d)(ii) hereof) for the Trading Day
immediately prior to the date of such exercise.
(c) If, following the occurrence of a Triggering Event the
Company shall issue shares of Common Stock pursuant to
Section 11(a)(iii) hereof upon exercise of the Rights, the
Company shall not be required to issue fractions of Shares of
Common Stock or to distribute certificates which evidence
fractional shares of Common Stock. In lieu of fractional shares
of Common Stock, the Company may pay to the registered holders of
Rights Certificates at the time such Rights are exercised as
herein provided an amount in cash equal to the same fraction of
the current market value of one (1) share of Common Stock. For
purposes of this Section 14(c), the current market value of one
(1) share of Common Stock shall be the closing price of one (1)
share of Common Stock (as determined pursuant to Section 11(d)(i)
hereof) for the Trading Day immediately prior to the date of such
exercise.
(d) The holder of a Right by the acceptance of the Rights
expressly waives his right to receive any fractional Rights or
any fractional shares upon exercise of a Right, except as
permitted by this Section 14.
Section 15. Rights of Action. All rights of action in
respect of this Agreement are vested in the respective registered
holders of the Rights Certificates (and, prior to the
Distribution Date, the registered holders of the Common Stock);
and any registered holder of any Rights Certificate (or, prior to
the Distribution Date, of the Common Stock), without the consent
of the Rights Agent or of the holder of any other Rights
Certificate (or, prior to the Distribution Date, of the Common
Stock), may, in his own behalf and for his own benefit, enforce,
and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise act in respect of,
his right to exercise the Rights evidenced by such Rights
Certificate in the manner provided in such Rights Certificate and
in this Agreement. Without limiting the foregoing or any
remedies available to the holders of Rights, it is specifically
acknowledged that the holders of Rights would not have an
adequate remedy at law for any breach of this Agreement and shall
be entitled to specific performance of the obligations hereunder
and injunctive relief against actual or threatened violations of
the obligations hereunder of any Person subject to this
Agreement.
Section 16. Agreement of Rights Holders. Every holder of
a Right by accepting the same consents and agrees with the
Company and the Rights Agent and with every other holder of a
Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of Common
Stock;
(b) after the Distribution Date, the Rights Certificates
are transferable only on the registry books of the Rights Agent
if surrendered at the principal office or offices of the Rights
Agent designated for such purposes, duly endorsed or accompanied
by a proper instrument of transfer and with the appropriate forms
and certificates fully executed;
(c) subject to Section 6(a) and Section 7(f) hereof, the
Company and the Rights Agent may deem and treat the person in
whose name a Rights Certificate (or, prior to the Distribution
Date, the associated Common Stock certificate) is registered as
the absolute owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing on the
Rights Certificates or the associated Common Stock certificate
made by anyone other than the Company or the Rights Agent) for
all purposes whatsoever, and neither the Company nor the Rights
Agent, subject to the last sentence of Section 7(e) hereof, shall
be required to be affected by any notice to the contrary; and
(d) notwithstanding anything in this Agreement to the
contrary, neither the Company nor the Rights Agent shall have any
liability to any holder of a Right or other Person as a result of
its inability to perform any of its obligations under this
Agreement by reason of any preliminary or permanent injunction or
other order, decree or ruling issued by a court of competent
jurisdiction or by a governmental, regulatory or administrative
agency or commission, or any statute, rule, regulation or
executive order promulgated or enacted by any governmental
authority, prohibiting or otherwise restraining performance of
such obligation; provided, however, the Company must use its best
efforts to have any such order, decree or ruling lifted or
otherwise overturned as soon as possible.
Section 17. Rights Certificate Holder Not Deemed a
Stockholder. No holder, as such, of any Rights Certificate shall
be entitled to vote, receive dividends or be deemed for any
purpose the holder of the number of Preferred Stock Units or any
other securities of the Company which may at any time be issuable
on the exercise of the Rights represented thereby, nor shall
anything contained herein or in any Rights Certificate be
construed to confer upon the holder of any Rights Certificate, as
such, any of the rights of a stockholder of the Company or any
right to vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of
meetings or other actions affecting stockholders (except as
provided in Section 24 hereof), or to receive dividends or
subscription rights, or otherwise, until the Right or Rights
evidenced by such Rights Certificate shall have been exercised in
accordance with the provisions hereof.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the Rights Agent
reasonable compensation for all services rendered by it hereunder
and, from time to time, on demand of the Rights Agent, its
reasonable expenses and counsel fees and disbursements and other
disbursements incurred in the administration and execution of
this Agreement and the exercise and performance of its duties
hereunder (collectively, the "Rights Agent Expenses"); provided,
however, that the Company shall not be liable for Rights Agent
Expenses in excess of Five Thousand Dollars ($5,000) annually
unless such additional Rights Agent Expenses have been approved
in writing by the Company, which approval shall not be
unreasonably withheld. The Company also agrees to indemnify the
Rights Agent for, and to hold it harmless against, any loss,
liability, or expense, incurred without negligence, bad faith or
willful misconduct on the part of the Rights Agent, for anything
done or omitted by the Rights Agent in connection with the
acceptance and administration of this Agreement, including the
costs and expenses of defending against any claim of liability in
the premises.
(b) The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or
omitted by it in connection with its administration of this
Agreement in reliance upon any Rights Certificate or certificate
for Common Stock or for other securities of the Company,
instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent,
certificate, statement, or other paper or document believed by it
to be genuine and to be signed, executed and, where necessary,
verified or acknowledged, by the proper Person or Persons.
Section 19. Merger or Consolidation or Change of Name of
Rights Agent.
(a) Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or
consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any corporation succeeding to the
corporate trust business of the Rights Agent or any successor
Rights Agent, shall be the successor to the Rights Agent under
this Agreement without the execution or filing of any paper or
any further act on the part of any of the parties hereto;
provided, however, that such corporation would be eligible for
appointment as a successor Rights Agent under the provisions of
Section 21 hereof. In case at the time such successor Rights
Agent shall succeed to the agency created by this Agreement, any
of the Rights Certificates shall have been countersigned but not
delivered, any such successor Rights Agent may adopt the
countersignature of a predecessor Rights Agent and deliver such
Rights Certificates so countersigned; and in case at that time
any of the Rights Certificates shall not have been countersigned,
any successor Rights Agent may countersign such Rights
Certificates either in the name of the predecessor or in the name
of the successor Rights Agent; and in all such cases such Rights
Certificates shall have the full force provided in the Rights
Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent shall
be changed and at such time any of the Rights Certificates shall
have been countersigned but not delivered, the Rights Agent may
adopt the countersignature under its prior name and deliver
Rights Certificates so countersigned; and in case at that time
any of the Rights Certificates shall not have been countersigned,
the Rights Agent may countersign such Rights Certificates either
in its prior name or in its changed name; and in all such cases
such Rights Certificates shall have the full force provided in
the Rights Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations imposed by this Agreement
upon the following terms and conditions, by all of which the
Company and the holders of Rights Certificates, by their
acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who
may be legal counsel for the Company), and the opinion of such
counsel shall be full and complete authorization and protection
to the Rights Agent as to any action taken or omitted by it in
good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent shall deem it necessary or desirable
that any fact or matter (including, without limitation, the
identity of any Acquiring Person or any Adverse Person and the
determination of "current market price") be proved or established
by the Company prior to taking or suffering any action hereunder,
such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by the Chairman of
the Board, the Vice Chairman of the Board, the President or the
Executive Vice President of the Company and delivered to the
Rights Agent; and such certificate shall be full authorization to
the Rights Agent for any action taken or suffered in good faith
by it under the provisions of this Agreement in reliance upon
such certificate.
(c) The Rights Agent shall be liable hereunder only for its
own negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason
of any of the statements of fact or recitals contained in this
Agreement or in the Rights Certificates or be required to verify
the same (except as to its countersignature on such Rights
Certificates), but all such statements and recitals are and shall
be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility
in respect of the validity of this Agreement or the execution and
delivery hereof (except the due execution hereof by the Rights
Agent) or in respect of the validity or execution of any Rights
Certificate (except its countersignature thereof); nor shall it
be responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Rights
Certificate; nor shall it be responsible for any adjustment
required under the provisions of Section 11 or Section 13 hereof
or responsible for the manner, method or amount of any such
adjustment or the ascertaining of the existence of facts that
would require any such adjustment (except with respect evidenced
by Rights Certificates after actual notice of any such
adjustment); nor shall it by any act hereunder be deemed to make
any representation or warranty as to the authorization or
reservation of any shares of Common Stock or Preferred Stock to
be issued pursuant to this Agreement or any Rights Certificate or
as to whether any shares of Common Stock or Preferred Stock will,
when so issued, be duly authorized, validly issued, fully paid
and nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by the
Rights Agent for the performance by the Rights Agent of the
provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties
hereunder from the Chairman of the Board, the President, any Vice
President, the Secretary, any Assistant Secretary, the Treasurer
or any Assistant Treasurer of the Company, and to apply to such
officers for advice or instructions in connection with its
duties, and it shall not be liable for any action taken or
suffered to be taken by it in good faith in accordance with
instructions of any such officer.
(h) The Rights Agent and any stockholder, director, officer
or employee of the Rights Agent may buy, sell or deal in any of
the Rights or other securities of the Company or become
pecuniarily interested in any transaction in which the Company
may be interested, or contract with or lend money to the Company
or otherwise act as fully and freely as though it were not Rights
Agent under this Agreement. Nothing herein shall preclude the
Rights Agent from acting in any other capacity for the Company or
for any other legal entity.
(i) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or agents,
and the Rights Agent shall not be answerable or accountable for
any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any such
act, default, neglect or misconduct; provided, however, that
reasonable care was exercised in the selection and continued
employment thereof.
(j) No provision of this Agreement shall require the Rights
Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder or in the exercise of its rights if there shall be
reasonable grounds for believing 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, either has not been completed or
indicates an affirmative response to clause l and/or 2 thereof,
the Rights Agent shall not take any further action with respect
to such requested exercise of transfer without first consulting
with the Company.
Section 21. Change of Rights Agent. The Rights Agent or
any successor Rights Agent may resign and be discharged from its
duties under this Agreement upon thirty (30) days' notice in
writing mailed to the Company, and to each transfer agent of the
Common Stock and Preferred Stock, by registered or certified
mail, and to the holders of the Rights Certificates by
first-class mail. The Company may remove the Rights Agent or any
successor Rights Agent upon thirty (30) days' notice in writing,
mailed to the Rights Agent or successor Rights Agent, as the case
may be, and to each transfer agent of the Common Stock and
Preferred Stock, by registered or certified mail, and to the
holders of the Rights Certificates by first-class mail. If the
Rights Agent is removed by the Company as provided herein, the
Company shall reimburse the Rights Agent for such reasonable
expenses incurred due to such removal as have been approved in
writing by the Company, which approval shall not be unreasonably
withheld. If the Rights Agent shall resign or be removed or
shall otherwise become incapable of acting, the Company shall
appoint a successor to the Rights Agent. If the Company shall
fail to make such appointment within a period of thirty (30) days
after giving notice of such removal or after it has been notified
in writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the holder of a Rights
Certificate (who shall, with such notice, submit his Rights
Certificate for inspection by the Company), then any registered
holder of any Rights Certificate may apply to any court of
competent jurisdiction for the appointment of a new Rights Agent.
Any successor Rights Agent, whether appointed by the Company or
by such a court, shall be a corporation organized and doing
business under the laws of the United States or of any state of
the United States, in good standing, which is authorized under
such laws to exercise corporate trust powers and is subject to
supervision or examination by federal or state authority and
which has at the time of its appointment as Rights Agent a
combined capital, surplus and individual profits of at least
Fifty Million Dollars ($50,000,000). After appointment, the
successor Rights Agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally
named as Rights Agent without further act or deed; but the
predecessor Rights Agent shall deliver and transfer to the
successor Rights Agent any property at the time held by it
hereunder, and shall execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment, the Company
shall file notice thereof in writing with the predecessor Rights
Agent and each transfer agent of the Common Stock and the
Preferred Stock, and shall mail a notice thereof in writing to
the registered holders of the Rights Certificates. Failure to
give any notice provided for in this Section 21, however, or any
defect therein, shall not affect the legality or validity of the
resignation or removal of the Rights Agent or the appointment of
the successor Rights Agent, as the case may be.
Section 22. Issuance of New Rights Certificates.
Notwithstanding any of the provisions of this Agreement or
of the Rights to the contrary, the Company may, at its option,
issue new Rights Certificates evidencing Rights in such form as
may be approved by a majority of the Unaffiliated Directors to
reflect any adjustment or change in the Purchase Price and the
number or kind or class of shares or other securities or property
purchasable under the Rights Certificates made in accordance with
the provisions of this Agreement. In addition, in connection
with the issuance or sale of shares of Common Stock following the
Distribution Date and prior to the Expiration Date, the Company
(a) shall, with respect to shares of Common Stock so issued or
sold pursuant to the exercise of stock options or under any
employee plan or arrangement, or upon the exercise, conversion or
exchange of securities hereinafter issued by the Company, and (b)
may, in any other case, if deemed necessary or appropriate by a
majority of the Unaffiliated Directors, issue Rights Certificates
representing the appropriate number of Rights in connection with
such issuance or sale; provided, however, that (i) no such Rights
Certificate shall be issued if, and to the extent that, the
Company shall be advised by counsel that such issuance would
create a significant risk of material adverse tax consequences to
the Company or the Person to whom such Rights Certificate would
be issued, and (ii) no such Rights Certificate shall be issued
if, and to the extent that, appropriate adjustment shall
otherwise have been made in lieu of the issuance thereof.
Section 23. Redemption and Termination.
(a) Except as to a redemption in connection with an
Extraordinary Transaction (as defined below) which shall be
subject solely to Section 23(b) hereof, at its option, the
Company, by vote of a majority of the Unaffiliated Directors,
may, at any time prior to the earlier of (i) the Close of
Business on the twentieth (20th) Business Day following the Stock
Acquisition Date (or, if the Stock Acquisition Date shall have
occurred prior to the Record Date, the close of business on the
twentieth (20th) Business Day following the Record Date), as such
period may be extended pursuant to Section 26 hereof, or (ii) the
Final Expiration Date, redeem all, but not less than all, of the
then outstanding Rights at a redemption price of $.01 per Right
in cash, or by delivery of or exchange for Preferred Stock Units,
Common Stock (including fractional shares), and/or other
consideration (including but not limited to depository units
representing Preferred Stock Units and/or shares of Common Stock
or fractions thereof) deemed in good faith to have a fair market
value equal to $.01 per Right by a majority of the Unaffiliated
Directors, as such amount may be appropriately adjusted to
reflect any stock split, stock dividend or similar transaction
occurring after the date hereof (such redemption price being
hereinafter referred to as the "Redemption Price").
Notwithstanding the foregoing, the Company may not redeem any
Rights following a determination pursuant to Section 11(a)(ii)(D)
that any Person is an Adverse Person, unless such determination
is subsequently withdrawn within the twenty (20) Business Day
period provided in that Section. If, following the occurrence of
a Stock Acquisition Date and following the expiration of the
right of redemption hereunder but prior to any Triggering Event,
(i) a Person who is an Acquiring Person shall have transferred or
otherwise disposed of a number of shares of Common Stock in one
transaction or series of transactions, not directly or indirectly
involving the Company or any of its Subsidiaries, that did not
result in the occurrence of a Triggering Event such that such
Person is thereafter a Beneficial Owner of ten percent (10%) or
less of the outstanding shares of Common Stock, and (ii) there
are not other Persons, immediately following the occurrence of
the event described in clause (i), who are Acquiring Persons,
then the right of redemption shall be reinstated and thereafter
be subject to the provisions of this Section 23, as if any prior
Stock Acquisition Date has not occurred for purposes of this
Section 23. Notwithstanding anything contained in this Agreement
to the contrary, the Rights shall not be exercisable after the
first occurrence of a Section 11(a)(ii) Event until such time as
the Company's right of redemption hereunder has expired. The
Company may, at its option, pay the Redemption Price in cash,
Preferred Stock Units (based on the "current market price," as
defined in Section 11(d)(ii) hereof of the Preferred Stock Units
at the time of redemption), shares of Common Stock (based on the
"current market price," as defined in Section 11(d)(i) hereof, of
the Common Stock at the time of redemption), or any other form of
consideration deemed appropriate by a majority of the
Unaffiliated Directors.
(b) During the period commencing at the Close of Business
on the twentieth (20th) Business Day following the Stock
Acquisition Date and terminating on the earlier of (i) the
occurrence of a Section 11(a)(ii) Event or a Section 13 Event and
(ii) the Final Expiration Date, in connection with an
Extraordinary Transaction, at its option, the Company, by vote of
a majority of the Unaffiliated Directors, may redeem all, but not
less than all, of the then outstanding Rights at the Redemption
Price, but only if (i) such redemption is to be effected in
connection with the execution and delivery by the Company of an
agreement providing for, any merger, consolidation or sale or
transfer of all or substantially all of the assets of the Company
(an "Extraordinary Transaction") and (ii) a majority of the
Unaffiliated Directors shall have approved such Extraordinary
Transaction as for and in the best interest of the stockholders
of the Company, after receiving from one or more investment
banking firms an opinion confirming the fairness of the price and
the terms of such Extraordinary Transaction.
(c) Immediately upon the action of the Company ordering the
redemption of the Rights, evidence of which shall have been filed
with the Rights Agent and without any further action and without
any notice, the right to exercise the Rights will terminate and
the only right thereafter of the holders of Rights shall be to
receive the Redemption Price for each Right so held. Promptly
after the action of the Company ordering the redemption of the
Rights, the Company shall give notice of such redemption to the
Rights Agent and the holders of the then outstanding Rights by
mailing such notice to all such holders at each holder's last
address as it appears upon the registry books of the Rights Agent
or, prior to the Distribution Date, on the registry books of the
Transfer Agent for the Common Stock. Any notice that is mailed
in the manner herein provided shall be deemed given, whether or
not the holder receives the notice. Each such notice of
redemption will state the method by which the payment of the
Redemption Price will be made.
Section 24. Notice of Certain Events.
(a) In case the Company shall propose, at any time after
the Distribution Date, (i) to pay any dividend payable in stock
of any class to the holders of Preferred Stock or to make any
other distribution to the holders of Preferred Stock (other than
a regular quarterly cash dividend out of earnings or retained
earnings of the Company), (ii) to offer to the holders of
Preferred Stock rights or warrants to subscribe for or to
purchase any additional shares of Preferred Stock or shares of
stock of any class or any other securities, rights or options,
(iii) to effect any reclassification of its Preferred Stock
(other than a reclassification involving only the subdivision of
outstanding shares of Preferred Stock), (iv) to effect any
consolidation or merger into or with any other Person (other than
a Subsidiary of the Company in a transaction which complies with
Section 11(o) hereof), or to effect any sale or other transfer
(or to permit one or more of its Subsidiaries to effect any sale
or other transfer), in one transaction or a series of related
transactions, of more than 50% of the assets or earning power of
the Company and its Subsidiaries (taken as a whole) to any other
Person or Persons (other than the Company and/or any of its
Subsidiaries in one or more transactions each of which complies
with Section 11(o) hereof), or (v) to effect the liquidation,
dissolution or winding up of the Company; then, in each such
case, the Company shall give to each holder of a Rights
Certificate, to the extent feasible and in accordance with
Section 25 hereof, a notice of such proposed action, which shall
specify the record date for the purposes of such stock dividend,
distribution of rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution, or winding up is to take place and the
date of participation therein by the holders of the shares of
Preferred Stock, if any such date is to be fixed, and such notice
shall be so given in the case of any action covered by clause (i)
or (ii) above at least twenty (20) days prior to the record date
for determining holders of the shares of Preferred Stock for
purposes of such action, and in the case of any such other
action, at least twenty (20) days prior to the date of the taking
of such proposed action or the date of participation therein by
the holders of the shares of Preferred Stock whichever shall be
the earlier.
(b) In case any of the events set forth in Section
11(a)(ii) hereof shall occur, then, in any such case, (i) the
Company shall as soon as practicable thereafter give to each
holder of a Rights Certificate, to the extent feasible and in
accordance with Section 25 hereof, a notice of the occurrence of
such event, which shall specify the event and the consequences of
the event to holders of Rights under Section 11(a)(ii) hereof,
and, (ii) if appropriate, all references in the preceding
paragraph to Preferred Stock shall be deemed thereafter to refer
to Common Stock and/or other securities.
Section 25. 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 the Company shall be
sufficiently given or made if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing
with the Rights Agent) as follows:
Collins Industries, Inc.
421 East 30th Avenue
Hutchinson, Kansas 67502-2493
Attention: Donald Lynn Collins
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 the Rights Agent
shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed (until another address is filed in
writing with the Company) as follows:
Mellon Bank, N.A.
Commerce Court
Four Station Square, Third Floor
Pittsburgh, Pennsylvania 15219
Attn: Harry Richards
Notices or demands authorized by this Agreement to be given or
made by the Company or the Rights Agent to the holder of any
Rights Certificate (or, if prior to the Distribution Date, to the
holder of certificates representing shares of Common Stock) shall
be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed to such holder at the address of such
holder as shown on the registry books of the Company.
Section 26. Supplements and Amendments. Prior to the
Distribution Date and subject to the penultimate sentence of this
Section 26, the Company and the Rights Agent shall, if the
Company so directs, supplement or amend any provision of this
Agreement without the approval of any holders of certificates
representing shares of Common Stock. From and after the
Distribution Date and subject to the penultimate sentence of this
Section 26, the Company and the Rights Agent shall, if a majority
of the Unaffiliated Directors of the Company so directs,
supplement or amend this Agreement without the approval of any
holders of Rights Certificates in order (i) to cure any
ambiguity, (ii) to correct or supplement any provision contained
herein which may be defective or inconsistent with any other
provisions herein, (iii) to shorten or lengthen any time period
hereunder (including without limitation, the period within which
the rights may be redeemed in accordance with Section 23 hereof)
or (iv) to change or supplement the provisions hereunder in any
manner which the Company may deem necessary or desirable and
which shall not adversely affect the interest of the holders of
Rights Certificates (other than an Acquiring Person, an Adverse
Person or any Affiliate or Associate of an Acquiring Person or an
Adverse Person); provided, however, that this Agreement may not
be supplemented or amended to lengthen, pursuant to clause (iii)
of this sentence, (A) a time period relating to when the Rights
may be redeemed at such time as the Rights are not then
redeemable, or (B) any other time period unless such lengthening
is for the purpose of protecting, enhancing or clarifying the
rights of, and/or the benefits to, the holders of Rights. Upon
the delivery of a certificate from an appropriate officer of the
Company which states that the proposed supplement or amendment is
in compliance with the terms of this Section 26, the Rights Agent
shall execute such supplement or amendment. Notwithstanding
anything contained in this Agreement to the contrary, no
supplement or amendment shall be made which changes the
Redemption Price, the Final Expiration Date, the Purchase Price
or the number of Preferred Stock Units for which a right is
exercisable. Prior to the Distribution Date, the interest of the
holders of Rights shall be deemed coincident with the interests
of the holders of Common Stock.
Section 27. Successors. All the covenants and
provisions of this Agreement by or for the benefit of the Company
or the Rights Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.
Section 28. Determinations and Actions by the Board of
Directors, etc. For all purposes of this Agreement, any
calculation of the number of shares of Common Stock outstanding
at any particular time, including for purposes of determining the
particular percentage of such outstanding shares of Common Stock
of which any Person is the Beneficial Owner, shall be made in
accordance with the last sentence of Rule 13d-3(d)(1)(i) of the
General Rules and Regulations under the Exchange Act. A majority
of the Unaffiliated Directors shall have the exclusive power and
authority to administer this Agreement and to exercise all rights
and powers specifically granted to the Unaffiliated Directors or
to the Company, or as may be necessary or advisable in the
administration of this Agreement, including, without limitation,
the right and power to (i) interpret the provisions of this
Agreement and (ii) make all determinations deemed necessary or
advisable for the administration of this Agreement (including a
determination to redeem or not redeem the Rights, to declare that
a Person is an Adverse Person or to amend the Agreement). All
such actions, calculations, interpretations and determinations
(including, for purposes of clause (B) below, all omissions with
respect to the foregoing) that are done or made by a majority of
the Unaffiliated Directors in good faith, shall (A) be final,
conclusive and binding on the Company, the Rights Agent, the
holders of the Rights and all other parties, and (B) not subject
the Board of Directors or the Unaffiliated Directors to any
liability to the holders of the Rights.
Section 29. Benefits of This Agreement. Nothing in this
Agreement shall be construed to give to any Person other than the
Company, the Rights Agent and the registered holders of the
Rights Certificates (and, prior to the Distribution Date,
registered holders of the Common Stock) any legal or equitable
right, remedy or claim under this Agreement; but this Agreement
shall be for the sole and exclusive benefit of the Company, the
Rights Agent and the registered holders of the Rights
Certificates (and, prior to the Distribution Date, registered
holders of the Common Stock).
Section 30. Severability. If any term, provision,
covenant or restriction of this Agreement is held by a court of
competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated;
provided, however, that notwithstanding anything in this
Agreement to the contrary, if any such term, provision, covenant
or restriction is held by such court or authority to be invalid,
void or unenforceable and a majority of the Unaffiliated
Directors determines in its good faith judgment that severing the
invalid language from this Agreement would adversely affect the
purpose or effect of this Agreement, the right of redemption set
forth in Section 23 hereof shall be reinstated and shall not
expire until the Close of Business on the tenth (10th) Business
Day following the date of such determination.
Section 31. Governing Law. This Agreement, each Right and
each Rights Certificate issued hereunder shall be deemed to be a
contract made under the laws of the State of Missouri and for all
purposes shall be governed by and construed in accordance with
the laws of such State applicable to contracts made and to be
performed entirely within such State.
Section 32. Counterparts. This Agreement may be executed
in any number of counterparts and each of such counterparts shall
for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
Section 33. Descriptive Headings. Descriptive headings
of the several Sections of this Agreement are inserted for
convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
agreement to be duly executed and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
COLLINS INDUSTRIES, INC.
Attest: a Missouri corporation
By: _______________________ By: _____________________________
Name: Lewis W. Ediger Name: Don L. Collins
Title: Secretary Title: Chairman of the Board
MELLON BANK, N.A.
Attest: a Pennsylvania corporation
By: _______________________ By: _____________________________
Name: Name:
Title: Title:
EXHIBIT 2
ARTICLES OF INCORPORATION
OF
SCHOOL SERVICES AND LEASING, INC.
I, the undersigned, a natural person of the age of
twenty-one years or more and subscriber to the shares of the
corporation to be organized pursuant hereto, for the purpose of
forming a corporation under "The General Business Corporation Act
of Missouri," and all amendments thereto, do hereby adopt the
following Articles of Incorporation:
ARTICLE I
The name of the Corporation is School Services and Leasing, Inc.
ARTICLE II
The address of its initial registered office in the State
of Missouri is 8600 Ward Parkway, Suite 25A, Lincoln Mall, Kansas City,
Missouri 64114; and the name of its initial registered agent at such
address is Charles F. Crews.
ARTICLE III
The aggregate number of shares which the corporation shall have
authority to issue shall be three thousand (3,000) shares, all of
which will be common stock and having a par value of Ten Dollars
($10.00) per share.
ARTICLE IV
The number of shares of
common stock to be issued before the corporation shall commence
business is fifty (50), and the consideration to be paid
therefore and the capital which the corporation shall commence
business is Five Hundred Dollars ($500.00) all of the said fifty
(50) shares having first been duly subscribed by the undersigned
incorporator and paid up in cash or property at the rate of Ten
Dollars ($10.00) per share which said sum is in the hands of the
undersigned subscribed and incorporator.
ARTICLE V
The name and place of residence of the incorporator and
the number of shares subscribed by him are:
Name Address No. of Shares
Donald L. Collins 101 Walnut Dr., K.C., MO 50
ARTICLE VI
The number of Directors to be elected at the first meeting
of the shareholders are two.
ARTICLE VII
The duration of the corporation is perpetual.
ARTICLE VIII
The corporation is formed for the following purposes:
a. To carry on and conduct a business of buying, selling,
leasing, and in all other manners dealing in new and used busses;
to furnish or contract for all equipment, supplies, and services
incident to bus sales, leasing, and transportation contracting,
and to do any and all things incident and necessary to carry on
such a business;
b. To enter into contracts or agreements in any form
whatsoever with manufacturers, distributors or wholesalers of
goods, ware, and merchandise granting to this corporation
exclusive or non-exclusive right of representation, distribution,
sale or other handling the products of said manufacturer,
wholesaler, or distributor in any territory of the United States
or abroad;
c. To buy, lease, contract for, invest in or otherwise
acquire any real or personal property, or any interest therein,
or all or any of the good will, right, franchises, property and
business of any person, entity, partnership, association or
corporation, to pay for the same in cash, in stock of any class,
bonds, or other obligations of the corporation or otherwise, to
hold, utilize and in any manner dispose of the whole or any part
of the rights and property so acquired, to assume in connection
therewith any liabilities of any person, entity, partnership,
association or corporation, and conduct in any lawful manner the
whole or any part of the business thus acquired;
d. To sell, lease, exchange, convey, mortgage, pledge,
transfer, assign and deliver, or otherwise dispose, of all or any
part of the property, assets and effects of the corporation, and
receive in payment therefor cash or stocks, bonds, notes,
debentures, or other securities or evidences of indebtedness or
obligations of any individual, firm, corporation, company,
association, trust or organization, on such terms and conditions
as the Board of Directors of the corporation shall determine,
subject to limitations, or requirements imposed by law;
e. To act as principal, agent, broker, dealer, factor,
jobber, commission merchant or any representative capacity in
transacting any business authorized herein;
f. To manufacture, buy, sell, exchange, mortgage,
encumber, improve, develop, manage, control, assign, transfer,
convey, lease, pledge, or otherwise acquire, hold, own, alienate,
or dispose of property of any kind whatsoever, real, personal or
mixed, wheresoever situated or any interest therein;
g. To construct, improve, rebuild, alter, decorate,
maintain, manage, control, lease, encumber, or otherwise to
acquire, hold and dispose of and deal in any and all kinds of
improvements upon land belonging to this company or upon other
land;
h. To enter into any lawful arrangements for profit
sharing, reciprocal concession or cooperation, with any
corporation, association, partnership, syndicate, entity, person
or governmental, municipal or public authority, domestic or
foreign, in the carrying on of any business which the corporation
is authorized to carry on or any business or transactions deemed
necessary, convenient or incidental to carrying out any of the
purposes of the corporation;
i. To lease, purchase, manufacture, or otherwise acquire
and to own, hold, mortgage, pledge, assign, transfer, or
otherwise dispose of, and generally to deal in and use building
materials, tools, equipment, furniture, fixtures and supplies
incident to or useful in connection with purchase, sale,
ownership, construction, maintenance, and management of real
estate, buildings and other structures;
j. To acquire, hold, sell, use, assign, lease, grant
licenses in respect of, mortgage, or otherwise dispose of letters
patent of the United States or of any foreign country, patent
rights, licenses and privileges, inventions, improvements and
processes, copyrights, trademarks and trade names, relating to or
useful in connection with any business of the corporation;
k. To purchase, insofar as the same may be done without
impairing the stated capital of the corporation, and to hold,
pledge, and reissue shares of its own capital stock, but such
shares so acquired and held shall not be entitled to vote, either
directly or indirectly, nor to receive dividends;
l. To purchase, or in any manner acquire, to own and hold,
receive and dispose of the income from, to guarantee, sell,
assign, transfer, mortgage, pledge, or otherwise dispose of, and
exercise all of the rights of the individual natural persons with
respect to any bonds, securities and evidences of indebtedness
of, or shares of stock in any corporation or joint stock company
of any state, territory or country, and while the owner of said
stock, to exercise all of the rights, powers and privileges of
ownership, including the right to vote thereon;
m. To purchase, incorporate and/or cause to be merged,
consolidated, reorganized or liquidated, and to promote, take
charge of and aid, in any way permitted by law, the
incorporation, merger, consolidation or liquidation of any
corporation, association or entity;
n. To borrow or raise moneys for any of the purposes of
the corporation and from time to time, without limit as to
amount, to draw, make, accept, endorse, execute and issue
promissory notes, drafts, bills of exchange, warrants, bonds,
debentures convertible or non-convertible, and other negotiable
or non-negotiable instruments and evidences of indebtedness, and
to secure the payment thereof and of the interest thereon by
mortgage on, or pledge, conveyance or assignment in trust of the
whole or any part of the assets of the corporation, real,
personal, or mixed, including contract rights, whether at the
time owned or thereafter acquired, and to sell, pledge or
otherwise dispose of such securities or other obligations of the
corporation for its corporate purposes;
o. To enter into, make, perform and carry out contracts of
every sort and kind, for any lawful purpose, with any person,
firm, association or corporation whether public, private or
municipal or body politic, and with the Government of the United
States or any state, territory or colony thereof, or any foreign
government;
p. To conduct business in all other states, the District
of Columbia, the territories, possessions and dependencies of the
United States and in any and all foreign countries, to have one
or more offices out of the State of Missouri, and to hold,
purchase, lease, mortgage and convey real and personal property
out of said state as well as therein;
q. To do any and everything necessary or convenient for
the accomplishment of any of the purposes or the attainment of
any of the objects or the furtherance of any of the powers herein
above enumerated either alone or in association with other
corporations, or with any firm or individual;
r. To engage in any other lawful business or operation
deemed advantageous or desirable, and to do any and everything
incidental to, growing out of, or germane to any of the foregoing
purposes or objects, and to have and exercise all of the powers
and right conferred by the laws of the Sate of Missouri upon
corporations formed under the Act hereinabove referred to, and
all acts amendatory thereof and supplemental thereto, it being
expressly provided that the foregoing clauses shall be construed
both as objects and powers, shall be in furtherance and not in
limitations of the powers conferred by the laws of the State of
Missouri, and that the foregoing enumeration of specific powers
shall not be held to alter or restrict in any manner the general
powers of this corporation;
s. The objects and purposes specified in the foregoing
clauses of this Article VIII shall, except where otherwise
expressed, be in no way limited or restricted by reference to or
inference from the terms of any other clause or this or any other
Article of this Incorporation, and shall be construed as powers
as well as objects and purposes.
ARTICLE IX
The power to make, alter,
amend, or repeal the By-laws of the corporation shall be vested
in the Board of Directors.
ARTICLE X
Any person upon becoming
the owner or holder of any shares of stock or other securities
issued by this corporation, does thereby consent and agree that
all rights, powers, privileges, obligations or restrictions
pertaining to such person or securities in any way may be
altered, amended, restricted, enlarged or repealed by legislative
enactments of the State of Missouri or of the United States
hereinafter adopted which have references to or affect
corporations, such securities, or such person in any way; and
that the corporation, reserves the right to transact any business
of the corporation, to alter, amend or repeal these Articles of
Incorporation, or to do any other act or things as authorized,
permitted or allowed by such legislative enactments.
ARTICLE XI
The private property of
the shareholders of the corporation shall not be subject to the
payment of corporate debts, except to the extent of any unpaid
balances of subscriptions of shares.
ARTICLE XII
Each director or officer, or former director or officer
of this corporation, and his legal representatives shall be
indemnified by the corporation against liabilities, expenses,
counsel fees and costs reasonably incurred by him or his estate
in connection with, or arising out of any action, suit,
proceeding or claim in which he is made a party by reason of his
being, or having been, such director or officer, and any person
who, at the request of this corporation, served as director or
officer of another corporation in which this corporation owned
corporate stock, and his legal representatives, shall in like
manner be indemnified by this corporation, provided that in
neither case shall the corporation indemnify such director or
officer with respect to any matters as to which he shall be
finally adjudged in such action, suit or proceeding to have been
liable for negligence or misconduct in the performance of his
duties as such director or officer. The indemnification herein
provided for, however, shall apply also in respect of any amount
paid in compromise of such action, suit, proceeding, or claim
asserted against such director or officer (including expenses,
counsel fees and costs reasonably incurred in connection
therewith), provided the Board of Directors shall have first
approved such proposed compromise settlement and determined that
the officer or director involved was not guilty of negligence or
misconduct; but in taking such action, and director involved
shall not be qualified to vote thereon, and if for this reason a
quorum of the board cannot be obtained to vote on such a matter,
it shall be determined by a committee of three persons appointed
by shareholders at a duly called special meeting. In determining
whether a director of officer is guilty of negligence or
misconduct the Board of Directors or committee, as the case may
be, may rely conclusively upon an opinion of independent legal
counsel selected by such a board or committee. The right to
indemnification herein provided shall not be exclusive of any
other rights to which such director or officer may be legally
entitled.
IN WITNESS WHEREOF, I have hereunto set my hand this
23rd day of March, 1971.
______________________________
AMENDMENT OF ARTICLES OF INCORPORATION
The amendments adopted are as follows:
Article One: The name of the Corporation is
changed to Collins Industries, Inc.
Article Three: The aggregate number of shares
which the corporation shall have authority to issue is
increased to a total of 50,000 shares all of which will be
common stock and having a par value of $10.00 per share.
No shareholder shall have any pre-emptive rights
to purchase future issues of stock except as may be granted
by the Board of Directors.
Article Six: The number of Directors shall be
five.
Paragraph (a) of Article VIII is deleted and the
following is substituted: For manufacturing and
conversation of automotive equipment and related equipment,
and to perform all services incident to the manufacturing
conversion and sale of said equipment, and to do any and all
things incident and necessary to carrying on such a
business.
AMENDMENT OF ARTICLES OF INCORPORATION
The amendment adopted is as follows:
Article III. The aggregate number of shares which
the corporation shall have authority to issue is increased
to a total of 500,000 shares all of which shall be common
stock and having a par value of $1.00 per share. Shares
presently outstanding will be exchanged for certificates
bearing 10 shares for each one share presently outstanding
and showing the reduced par value to $1.00 per share.
AMENDMENT OF ARTICLES OF INCORPORATION
The amendment adopted is as follows:
Article III. The aggregate number of shares which
the corporation shall have authority to issue is increased
to a total of 1,000,000 shares all of which shall be common
stock and having a par value of fifty cent (.50) per shares.
Shares presently outstanding will be exchanged for
certificates bearing two (2) shares for each one (1) share
presently outstanding and showing the reduced par value to
fifty cents (.50) per share.
AMENDMENT OF ARTICLES OF INCORPORATION
The amendment adopted is as follows:
Article III. The aggregate number of shares is
increased to a total of Ten million (10,000,000) shares all
of which shall be common stock and have a par value of ten
cents ($.10) per share.
AMENDMENT OF ARTICLES OF INCORPORATION
The amendment adopted is as follows:
Article VI. That the Articles of Incorporation be
amended to change the number of directors from 5 to 7.
AMENDMENT OF ARTICLES OF INCORPORATION
Article Number VI is amended to read as follows:
The number of Directors shall be no fewer than
seven nor more than nine, as determined by the Board of
Directors by amending the By-Laws and notifying the
Secretary of State within thirty days of such change.
AMENDMENT OF ARTICLES OF INCORPORATION
Article III. The aggregate number of shares of capital
stock of all classes which the Corporation shall have the
authority to issue is 10,000,000 shares of stock, of which
7,000,000 shares shall be Common Stock, with a par value of ten
cents ($.10) per share and 3,000,000 shares shall be capital
stock, other than the aforesaid Common Stock, with a par value of
ten cents ($.10) per share.
The privileges, powers, rights, qualifications,
limitations of the Common Stock are as follows:
(i) The holders of Common Stock shall receive, to the
extent permitted by law and to the extent the Board of Directors
shall determine, such dividends as may be declared from time to
time by the Board of Directors.
(ii) In the event of the voluntary or involuntary
liquidation, dissolution, or winding-up of the Corporation, the
holders of the Common Stock shall be entitled to receive the
remaining assets of the Corporation available for distribution,
after all creditors have been paid and preferences of other
classes of stock have been satisfied.
(iii) Except as may be otherwise required by law or by
these Articles of Incorporation, each holder of Common Stock
shall have one vote in respect of each share of stock held by him
which may be voted as provided in the by-laws.
The designations, powers, preferences; the relative,
participating, option or other rights; and the qualifications,
limitations and restrictions of any series of the capital stock,
other than the Common Stock, shall be fixed by resolution or
resolutions of the Board of Directors, as follows:
a. The Corporation may issue one or more classes of stock
or one or more series of stock within any class thereof, any or
all of which classes may be of stock with par value or stock
without par value and which classes or series may have such
voting powers, full or limited, or no voting powers, and such
designations, preferences and relative, participating, optional
or other special rights, and qualifications, limitations or
restrictions thereof, as shall be stated and expressed in a
resolution or resolutions providing for the issue of such stock
adopted by the Board of Directors. Any of the voting powers,
designations, preferences, rights and qualifications, limitations
or restrictions of any such class or series of stock may be made
dependent upon facts ascertainable outside the Articles of
Incorporation or of any amendment thereto, or outside the
resolution or resolutions providing for the issue of such stock
adopted by the Board of Directors, provided that the manner in
which such facts shall operate upon the voting powers,
designations, preferences, rights and qualifications, limitations
or restrictions of such class or series of stock is clearly and
expressly set forth in the resolution or resolutions providing
for the issue of such stock adopted by the Board of Directors.
The power to increase or decrease or otherwise adjust the capital
stock as provided in this paragraph shall apply to all or any
such classes of stock.
b. Subject to limitations of law, any stock which is
entitled upon any distribution of the Corporation's assets,
whether by dividend or by liquidation, to a preference over
another class or series of stock may be made subject to
redemption by the Corporation at its option or at the option of
the holders of such stock or upon the happening of a specified
event. Any stock which may be redeemable under this section may
be redeemed for cash, property or rights, including securities of
this Corporation or another Corporation, at such time or times,
price or prices, or rate or rates, and with such adjustments, as
shall be stated in the resolution or resolutions providing for
the issue of such stock adopted by the Board of Directors as
hereinabove provided.
c. The holders of preferred or special stock of any class
and of any series thereof shall be entitled to receive dividends
at such rates, on such conditions and at such times as shall be
stated in the resolution or resolutions providing for the issue
of such stock adopted by the Board of Directors as hereinabove
provided, payable in preference to, or in such relation to, the
dividends payable on any other class or classes or of any other
series of stock, and cumulative or noncumulative as shall be so
stated and expressed. When dividends upon the preferred and
special stocks, if any, to the extent of the preference to which
such stocks are entitled, have been paid or declared and set
apart for payment, a dividend on the remaining class or classes
or series of stock may then be paid out of the remaining assets
of the Corporation available for dividends as is provided by law.
d. The holders of the preferred or special stock of any
class or of any series thereof are entitled to such rights upon
the dissolution of, or upon any distribution of the assets of,
the Corporation as is stated in the resolution or resolutions
providing for the issue of such stock adopted by the Board of
Directors as hereinabove provided.
e. Any stock of any class or of any series thereof may be
made convertible into, or exchangeable for, at the option of
either the holder or the Corporation or upon the happening of a
specified event, shares of any other class or classes or any
other series of the same or any other class or classes of stock
of the Corporation, at such price or prices or at such rate or
rates of exchange and with such adjustments as is stated in the
resolution or resolutions providing for the issue of such stock
adopted by the Board of Directors as hereinabove provided.
f. The powers, designations, preferences and relative,
participating, optional or other special rights including voting
rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences
and/or rights shall be set forth in full or summarized on the
face or back of the certificate which the Corporation issues to
represent such class or series of stock; but, in lieu of the
foregoing requirements, there may be set forth on the face or
back of the certificate which the corporation issues to represent
such class or series of stock, a statement that the Corporation
will furnish without charge to each stockholder who so requests
the powers, designations, preferences and relative,
participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights.
g. When resolutions are adopted by the Board of Directors
pursuant to authority expressly vested in it by the provisions of
these Articles of Incorporation or any amendment thereto, a
certificate of designations setting forth a copy of such
resolution or resolutions and the number of shares of stock of
such class or series as to which the resolution or resolutions
apply shall be executed by the president or any vice president,
acknowledged and filed by the Corporation with the Secretary of
State.
AMENDMENT TO ARTICLES OF INCORPORATION
The first paragraph of Article III is amended to read
as follows:
Article III. The aggregate number of
shares of capital stock of all classes which
the Corporation shall have the authority to
issue is 20,000,000 shares of stock, of which
17,000,000 shares shall be Common Stock, with
a par value of ten cents ($.10) per share and
3,000,000 shares shall be capital stock,
other than the aforesaid Common Stock, with a
par value of ten cents ($.10) per share. No
Shareholder shall have any preemptive rights
to purchase future issues of stock except as
may be granted by the Board of Directors.
EXHIBIT 3
BY-LAWS
OF
COLLINS INDUSTRIES, INC.
ARTICLE I
OFFICES
The principal office of the Corporation shall be
located at Hutchinson Air Base Industrial Tract, Reno County,
Kansas. The Corporation may also have offices and branch offices
at such other places within and without the State of Missouri as
the Board of Directors may from time to time designate and the
Business of the Corporation may require.
ARTICLE II
SHAREHOLDERS
Section 1. Place of Meeting. Any annual or special
meeting of the Shareholders shall be held at such place within or
without the State of Missouri as may be designated by the Board
of Directors or Executive Committee or in a waiver of notice
executed by all Shareholders entitled to vote at such meeting.
If there is a failure to designate a place for such meetings, the
same shall be held at the principal place of business of the
Corporation.
Section 2. Meetings. The annual meeting of Shareholders
shall be held on the fourth Friday of February of each year, at
the hour of 10:00 o'clock A.M., for the purpose of electing
directors and for the transaction of such other business as may
come before the meeting. If the day fixed for the annual meeting
shall be a legal holiday, such meeting shall be held on the next
succeeding business day at the same hour. Special meetings of
the Shareholders may be called at any time by the President, a
Vice President, the Secretary or the Treasurer or by the Board of
Directors or the Executive Committee. The holders of not less
than 20% of all the issued and outstanding shares entitled to
vote may call a special meeting for any purpose, provided they
shall make written application to the Secretary of the
Corporation stating the time, place and purpose or purposes, and
the Secretary shall thereupon call the meeting and issue notice
as herein provided.
Section 3. Quorum. A majority of the shares of stock
issued and entitled to vote, represented in person or by proxy,
shall constitute a quorum at a meeting of Shareholders, and the
act of the majority of such quorum present at such meeting shall
be the act of the Corporation. If there is less than a quorum
represented at such meeting, a majority of the shares so
represented may adjourn the meeting from time to time without
further notice, to a specified date not longer than 90 days from
such adjournment. If a quorum shall be present or represented at
such later meeting, any business may be transacted which might
have been transacted at the meeting as originally notified.
Section 4. Notice of Meetings. Notice of any annual or
special meeting shall be written or printed, and the publication
thereof, shall be given in the manner provided in the corporation
laws of the State of Missouri pertaining to the objects and
subject matter to be passed upon at such meetings. If the laws
of Missouri contain no provisions pertaining to the objects and
subject matter to be passed upon at such meeting, then written or
printed notice of such meeting, stating the place, day, hour and
purpose or purposes of the meeting, shall be delivered or given
either personally or by mail to each Shareholder of record
entitled to vote at such meeting, not less than 10 nor more than
50 days before the date of the meeting. If the notice is mailed,
it shall be deemed to be delivered when deposited in the United
States mail in a sealed envelope addressed to the Shareholder at
his address as it appears on the records of the Corporation, with
postage thereon prepaid.
Section 5. Waive of Notice. Any notice required by
these By-Laws may be waived by the persons entitled thereto
signing a waiver of notice before or after the time of such
meeting and such waivers shall be deemed equivalent to the giving
of said notice.
Section 6. Fixing of Record Date. The Board of
Directors may fix in advance a date, not exceeding 70 days
preceding the date of any meeting of Shareholders or the date of
payment of any dividend or the date of allotment of any right or
the date when any change, conversion or exchange or shares shall
go into effect as a record date for the determination of the
Shareholders entitled to notice of, and to vote at, any such
meeting, and any adjournment thereof, or entitled to receive
payment of any such dividend, or to any such allotment of rights,
or to exercise the rights in respect of any such change,
conversion or exchange of shares, and in such case such
Shareholders and only such Shareholders as shall be Shareholders
of record on the record date so fixed shall be entitled to notice
of, and to vote at, such meeting, and any adjournment thereof, or
to receive payment of such dividend, or to receive such allotment
of rights, or to exercise such rights, as the case may be,
notwithstanding any transfer of any shares on the books of the
Corporation after such date of such record date fixed as
aforesaid. If the Board of Directors shall not have set a record
date for the determination of its Stockholders entitled to vote
as herein provided, the date on which notice of the meeting is
mailed or the date such dividend is declared or other right
announced, as the case may be, shall be the record date for such
determination of Shareholders so entitled to vote.
Section 7. List of Voters. A complete list of all
Shareholders entitled to vote at any annual and special meeting
shall be compiled at least 10 days before such meeting by the
officer or agent having charges of the transfer books for shares
of stock of the Corporation. Such list shall be compiled in
alphabetical order with the address of and the number of shares
held by each Shareholders, and the list shall be kept on file at
the registered office of the Corporation for a period of at least
10 days prior to such meeting and shall be open to inspection by
any Shareholder for such period during usual business hours.
Such list shall also be present and kept open at the time and
place of such meeting and shall be subject to the inspection of
any Shareholder during this meeting. The original share ledger
or transfer book, or a duplicate thereof kept in this State,
shall be prima facie evidence as to who are the Shareholders
entitled to examine such list or share ledger or transfer book,
or to vote at any meeting of Shareholders. Failure to comply
with the requirements of this section shall not affect the
validity of any action taken at such meeting.
Section 8. Proxies. A Shareholder may, at any annual or
special meeting, vote either in person or by proxy executed in
writing by the Shareholder or his duly authorized attorney in
fact. Such proxy shall be filed with the Secretary of the
Corporation before or at the time of the meeting. No proxy shall
be valid after eleven months from the date of execution unless
otherwise provided in the proxy.
Section 9. Voting of Shares. Each outstanding share of
stock having voting rights, except as provided in Section 11,
shall be entitled to one vote upon each matter submitted to a
vote at any meeting of the Shareholders. Only Shareholders who
are entitled to vote their shares shall be entitled to notice of
any meeting.
Section 10. Voting of Shares of Certain Holders. Shares
of stock in the name of another corporation, foreign or domestic,
may be voted by such officer, agent or proxy as the by-laws of
such corporation may prescribe, or, in the absence of such
provision as the board of directors of such corporation may
determine.
Shares of stock in the name of a deceased person may be
voted by his executor or administrator in person or by proxy.
Shares of stock in the name of a guardian, curator or
trustee may be voted by such fiduciary either in person or by
proxy provided the books of the Corporation show the stock to be
in the name of such fiduciary in such capacity.
Shares of stock in the name of a receiver may be voted
by such receiver and shares held by or in the control of a
receiver may be voted by such receiver without the transfer
thereof into his name, if authority so to do be contained in an
appropriate order of the court by which such receiver was
appointed.
Shares of stock which have been pledged shall be voted
by the pledgor until the shares of stock have been transferred
into the name of the pledgee, and thereafter the pledgee shall be
entitled to vote the shares so transferred.
Section 11. Cumulative Voting. In all elections for
Directors of the Corporation, each Shareholder shall have as many
votes as shall equal the number of voting shares held by such
Shareholder in the Corporation, multiplied by the number of
Directors to be elected, and such Shareholder may cast all his
votes, either in person or by proxy, for one candidate or
distribute them among two or more candidates.
Section 12. Informal Action by Shareholders. Any action
required by this chapter to be taken at a meeting of the
shareholders of a corporation, or any action which may be taken
at a meeting of the shareholders, may be taken without a meeting
if consents in writing, setting forth the action so taken, shall
be signed by all of the shareholders entitled to vote with
respect to the subject matter thereof. Such consents shall have
the same force and effect as a unanimous vote of the shareholders
at a meeting duly held, and may be stated as such in any
certificate or document filed under this chapter. The secretary
shall file such consents with the minutes of the meetings of the
shareholders.
ARTICLE III
BOARD OF DIRECTORS
Section 1. General Powers. The business, property and
affairs of the Corporation shall be controlled and managed by its
Board of Directors.
Section 2. Number, Duration and Vacancies. The number
of Directors of the Corporation shall be no fewer than seven nor
more than nine. The present number of directors shall be seven.
The corporation may elect its directors for one or more years,
not to exceed three years; the shareholders entitled to vote
shall elect, at the 1992 annual meeting three (3) directors for a
term of three (3) years, two (2) directors for a term of two (2)
years, and two (2) directors for a term of one (1) year. The
shareholders entitled to vote shall elect at the 1993 annual
meeting, and at the annual meeting every year thereafter,
directors for a term of three (3) years such that the term for at
least two (2) directors but not more than three (3) directors
would expire every year commencing with the year 1993 and
thereafter. Each director shall hold office for the term for
which he is elected or until his successor shall have been
elected and qualified.
Section 3. Quorum. A majority of the Board of Directors
shall constitute a quorum for the transaction of business at a
meeting of the Board of Directors, and the act of the majority of
such quorum present at any such meeting shall be the act of the
Board of Directors.
Section 4. Meetings. The annual meeting of the Board of
Directors shall be held at the same place as the annual meeting
of the Shareholders immediately following such meeting. In the
event of adjournment of such annual meeting of the Board of
Directors, because a quorum is not present or otherwise, such
meeting may be held, without further notice, at any place within
or without the State of Missouri, as may be designated by the
Directors adjourning said meeting, provided a quorum is present,
but in no event later than thirty days after the annual meeting
of Shareholders. All other meetings of the Board of Directors
shall be held at the principal place of business of the
Corporation or at such other place within or without the State of
missouri as may be designated by the Board of Directors, or by
the Executive Committee in absence of such designation by the
Board of Directors. Regular meetings of the Board of Directors
may be held without notice at such time and place as may be
determined by the Board of Directors. Special meetings of the
Board of Directors may be held at any time upon call of the
President, Vice President or other officers of the Corporation.
Section 5. Notice. Notice of any special meeting shall
be given at least five days prior thereto in writing delivered
personally or mailed to each Director. Notice given by mail
shall be deemed to be delivered when deposited in the United
States mail in a sealed envelope so addressed with postage
thereon prepaid. Notice to a Director may be waived by executing
a written waiver thereof or by attendance at any meeting except
where a Director attends a meeting for the express purpose of
objecting to the transaction of any business because the meeting
was not lawfully called or convened. Notice or waiver of notice
of any regular or special meeting of the Board of Directors need
not state the business to be transacted nor the purpose thereof.
Section 6. Compensation. Directors, as such, shall not
receive a stated salary for their services, but, by resolution of
the Board of Directors, may be allowed a fixed sum and expenses
of attendance, if any, for attendance at any meeting of the Board
of Directors; provided that nothing contained herein shall be
construed to preclude a Director from serving the Corporation in
any other capacity and receiving compensation therefor.
Section 7. Presumption of Assent. A Director of the
Corporation shall be presumed to have assented to the action
taken on any corporate matter at a Board of Directors meeting at
which he is present, unless his dissent shall be entered in the
minutes of the meeting or unless he shall file his written
dissent to such action with the Secretary of the meeting before
the adjournment thereof or shall forward such dissent by
registered mail to the Secretary of the Corporation immediately
after the adjournment of the meeting. A director who voted in
favor of such action may not so dissent.
ARTICLE IV
COMMITTEES
Section 1. Executive Committee. An Executive Committee
of two or more Directors may be created by a majority vote of the
entire Board of Directors to serve at the pleasure of the Board,
and one of such Directors may be designated to act as Chairman
thereof. The Board of Directors shall fill the vacancies on the
Committee. Between meetings of the Board of Directors, the
Executive Committee shall possess and may exercise any and all
powers of the Board of Directors in the management of the
business and affairs of the Corporation, to the extent authorized
by resolution adopted by a majority vote of the entire Board of
Directors. The Executive Committee shall keep a complete record
of its activities and regularly report them to the Board of
Directors at every meeting thereof. All actions taken by the
Executive Committee shall be subject to revision, alteration or
change by the Board of Directors, provided that rights of third
persons shall not be affected thereby.
Section 2. Meetings of the Executive Committee. A
majority of the Executive Committee shall constitute a quorum for
the transaction of business. The Executive Committee may
determine the time and place for its meetings, the notice
necessary therefor and its rules or procedure.
Section 3. Other Committees. The Board of Directors, by
resolution, may provide for such other committees as it deems
necessary, to serve at its pleasure and to have such powers and
perform such functions as may be assigned to them.
ARTICLE V
OFFICERS
Section 1. Executive Officers. Executive Officers of
the Corporation shall be the President, one or more Vice-
Presidents, a Secretary and a Treasurer, and such Assistant
Secretaries and Assistant Treasurers as the Board of Directors
may from time to time elect. The President shall be selected
from the Board of Directors. Any two or more offices may be held
by the same person except the offices of President and Secretary.
Section 2. Election and Term. The President, Vice-
President, a Secretary and a Treasurer shall be elected at the
first meeting of the Board of Directors following the annual
meeting of the Shareholders and shall hold office at the pleasure
of the Board of Directors until their successors are elected and
shall qualify. Additional Vice-Presidents, Assistant Secretaries
and Assistant Treasurers may be elected by the Board of Directors
at any meeting thereof to hold office at the pleasure of the
Board of Directors. If more than one Vice-President should be
elected, the Board of Directors at the time of the election,
shall determine the seniority of each of the Vice-Presidents.
Section 3. Removal. Any officer elected by the Board of
Directors may be removed at any time by a vote of a majority of
the entire Board of Directors but such removal shall be without
prejudice to the contract rights, if any, of such officer.
Section 4. Vacancies. A vacancy in any office caused by
death, resignation, removal or otherwise, may be filled by a
majority of the Board of Directors for the unexpired term.
Section 5. Compensation. The Board of Directors may
determine the compensation to be received by officers of the
Corporation and agents appointed by the Board of Directors.
Section 6. Bond. The Board of Directors, by resolution,
may require the officers and agents of the Corporation, or any of
them, to give bond to the Corporation, in sufficient amount and
with sufficient surety, to secure the faithful performance of
their duties, and to comply with such other conditions as the
Board of Directors may from time to time require.
ARTICLE VI
DUTIES OF OFFICES
Section 1. The President. The President shall supervise
and control the business, property and affairs of the
Corporation, subject to the authority hereinabove given to the
Board of Directors, and shall preside at all meetings of the
Shareholders and of the Board of Directors. The President shall
execute certificates for shares of stock of the Corporation,
deeds, mortgages, bonds, contracts or other instruments which the
Board of Directors has authorized to be executed, except where
the execution thereof shall be expressly delegated by the Board
of Directors and the By-Laws to another officer or agent of the
Corporation, or shall be required by law to be otherwise
executed. The President shall perform all duties to his office.
Section 2. Vice-Presidents. The Vice-Presidents shall
perform the duties and exercise the powers delegated to them by
the Board of Directors or the President of the Corporation. In
the absence of the President, the Vice-Presidents in order of
their seniority may perform the duties and exercise the powers of
the President.
Section 3. The Secretary. The Secretary shall attend
all meetings of the Shareholders, Board of Directors, and
Executive Committee, and shall record votes and keep minutes of
such meetings in one or more books provided for that purpose. He
shall give all notices in the manner required by the By-Laws of
the Corporation or by law. He shall be custodian of the
corporate records and corporate seal and, when authorized by the
Board of Directors, Executive Committee, President or Vice-
President, shall affix the seal to any document or instrument of
the Corporation, requiring the seal. He shall have general
charge of the stock transfer books of the Corporation and shall
keep a list of the post office addresses of such Shareholders
which shall be given by each such Shareholder to the Secretary.
He shall, in general, perform all duties incident to the office
of Secretary and perform such other duties as may be required by
the Board of Directors, Executive Committee or the President,
under whose supervision he shall be. If the Secretary is absent
from any meeting, the Board of Directors or Executive Committee
may select any of their number, or any Assistant Secretary, to
act as temporary Secretary.
Section 4. Treasurer. The Treasurer shall have control
and custody of the funds and securities of the Corporation. He
shall keep and maintain in books and records of the Corporation
accurate accounts of receipts and disbursements, and he shall
deposit all monies and valuable effects of the Corporation in the
name of the Corporation in such depositories as the Board of
Directors or Executive Committee may designate. He shall make
disbursements of the funds and securities of the Corporation upon
order of the Board of Directors or Executive Committee and obtain
proper vouchers therefor. He shall report to the Board of
Directors and Executive Committee, at all meetings thereof,
concerning the financial condition of the Corporation and the
performance of his duties as Treasurer. In general, he shall
perform all duties incident to the office of Treasurer. He
shall, upon request of the Board of Directors or Executive
Committee, furnish a bond for the faithful performance of his
duties in such amount and with such surety as either of them may
require.
Section 5. Assistant Officers. Any Assistant
Secretaries or Assistant Treasurers elected by the Board of
Directors shall have such authority and perform such duties as
the Board of Directors may from time to time prescribe.
Section 6. Subordinate Officers. The Board of Directors
may elect such subordinate officers as it deems necessary to
serve for such period and have such authority and perform such
duties as the Board of Directors may authorize.
ARTICLE VII
CERTIFICATE FOR SHARES AND
THEIR TRANSFER
Section 1. Certificates for Shares. The Board of
Directors shall prescribe the form of the certificates of stock
of the Corporation. The certificates shall be signed by the
President or Vice-President and by the Secretary, Treasurer or
Assistant Secretary or Treasurer, and shall be sealed with the
seal of the Corporation and shall be numbered consecutively. The
name of the owner of the certificates of stock, number of shares
of stock represented thereby, and the date of issue shall be
recorded on the books of the Corporation. Certificates of stock
surrendered to the Corporation for transfer shall be canceled and
new certificates of stock representing these shares of stock
shall not be issued until the former certificates are surrendered
and canceled, except that new certificates of stock may be issued
to replace lost, destroyed or mutilated certificates upon such
terms and with such security to the Corporation as the Board of
Directors may require.
Section 2. Transfer of Shares. Shares of stock of the
Corporation may be transferred on the books of the Corporation by
delivery of the certificates representing such shares to the
Corporation for cancellation, and with an assignment in writing
on the back of the certificate executed by the person named in
the certificate as the owner thereof or by a written power of
attorney executed for that purpose by such person. The person
registered on the books of the Corporation as the owner of shares
of stock of the Corporation shall be deemed the owner thereof and
entitled to all rights of ownership with respect to such shares.
Section 3. Transfer Books. Transfer books shall be
maintained under the direction of the Secretary, showing the
ownership and transfer of all certificates of stock issued by the
Corporation.
ARTICLE VIII
FISCAL YEAR
Fiscal year of the Corporation shall be for such period
of twelve (12) months as the Board of Directors shall determine.
ARTICLE IX
SEAL
The seal of the Corporation shall be in the form of a
circle, and shall have inscribed thereon the name of the
Corporation and the words "Corporate Seal" and "Missouri." The
form of the seal of the Corporation may be changed from time to
time by resolution of the Board of Directors.
ARTICLE X
CONTRACTS, LOANS, CHECKS AND
DEPOSITS
Section 1. Contracts. The Board of Directors may
authorize any office or officers, agent or agents, to enter into
any contract or execute and deliver any instrument in the name of
and on behalf of the Corporation, and such authority may be
general or confined to specific instances.
Section 2. Loans. No loans shall be contracted on
behalf of the Corporation and no evidence of indebtedness shall
be issued in its name unless authorized by resolution of the
Board of Directors. Such authority may be general or confined to
specific instances.
Section 3. Checks, Drafts, Etc. All checks, drafts or
other orders for the payment of money, notes or other evidence of
indebtedness issued in the name of the Corporation, shall be
signed by such officer or officers, agent or agents of the
Corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
Section 4. Deposits. All funds of the Corporation not
otherwise employed shall be deposited from time to time to the
credit of the Corporation in such banks, trust companies or other
depositaries as the Board of Directors may select.
ARTICLE XI
WAIVER OF NOTICE
Whenever any notice is required to be given pursuant to
these By-Laws, the Articles of Incorporation of the Corporation,
or the corporation laws of the State of Missouri, a written
waiver thereof signed by the person or persons entitled thereto,
whether before or after the time stated teheran, shall satisfy
such requirement of notice.
ARTICLE XII
AMENDMENTS
The By-Laws of the Corporation may be amended or
repealed and new By-laws may be adopted by a vote of the majority
of shares represented in person or by proxy and entitled to vote,
at any annual meeting of shareholders without notice, or at any
special meeting of shareholders with notice setting forth the
terms of the proposed By-laws, amendment, or repeal. The Board
of Directors shall also have the power to make, alter, amend, or
repeal the By-laws of the Corporation to the extent that such
power may be vested in the Board of Directors by the Article of
Incorporation.
I hereby certify that the above and foregoing is a true
and exact copy of the By-Laws of Collins Industries, Inc. as
amended and are the By-Laws in full force and effect for the
Corporation on this 1st day of August, 1984.
______________________________
Charles F. Crews, Secretary
