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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) August 5, 1997
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Cooper Industries, Inc.
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(Exact Name of Registrant as Specified in its Charter)
Ohio
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(State or Other Jurisdiction of Incorporation)
1-1175 31-4156620
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(Commission File Number) (IRS Employer Identification No.)
600 Travis, Suite 5800, Houston, Texas 77002
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(Address of Principal Executive Offices) (Zip Code)
713/209-8400
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(Registrant's Telephone Number, Including Area Code)
Not applicable
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(Former Name or Former Address, if Changed Since Last Report)
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Item 5. Other Events.
1. Description of Securities to be Registered
On August 5, 1997, the Board of Directors of Cooper Industries, Inc.
(the "Company") declared a dividend distribution of one Right for each share of
Company Common Stock to shareholders of record at the close of business on
August 15, 1997. Each Right entitles the registered holder to purchase from
the Company one one-hundredth of a share of Series A Participating Preferred
Stock, no par value (the "Preferred Stock"), at a Purchase Price of $225 per
one one-hundredth of a share, subject to adjustment. The description and terms
of the Rights are set forth in the Rights Agreement (the "Rights Agreement")
between the Company and First Chicago Trust Company of New York, as Rights
Agent.
Initially, the Rights will be attached to all Common Stock
certificates representing shares then outstanding, and no separate Rights
Certificates will be distributed. The Rights will separate from the Common
Stock and a "Distribution Date" will occur upon the earlier of (i) 10 business
days following a public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") has acquired, or obtained the right
to acquire, beneficial ownership of 15% or more of the outstanding shares of
Common Stock (the "Stock Acquisition Date"), or (ii) 10 business days (or such
later date as the Board of Directors shall determine) following the
commencement of a tender offer or exchange offer that would result in a person
or group beneficially owning 15% or more of such outstanding shares of Common
Stock. Until the Distribution Date, (i) the Rights will be evidenced by the
Common Stock certificates and will be transferred with and only with such
Common Stock certificates, (ii) new Common Stock certificates issued after
August 15, 1997 will contain a notation incorporating the Rights Agreement by
reference, and (iii) the surrender for transfer of any certificates for Common
Stock outstanding will also constitute the transfer of the Rights associated
with the Common Stock represented by such certificates. Pursuant to the Rights
Agreement, the Company reserves the right to require prior to the occurrence of
a Triggering Event (as defined below) that, upon any exercise of Rights, a
number of Rights be exercised so that only whole shares of Preferred Stock will
be issued.
The Rights are not exercisable until the Distribution Date and
will expire at the close of business on August 5, 2007 unless earlier redeemed
by the Company as described below.
As soon as practicable after the Distribution Date, Rights
Certificates will be mailed to holders of record of the Common Stock as of the
close of business on the Distribution Date and, thereafter, the separate Rights
Certificates alone will represent the Rights. Except as otherwise determined
by the Board of Directors, only shares of Common Stock outstanding prior to the
Distribution Date will be issued with Rights.
In the event that an Acquiring Person becomes the beneficial
owner of 15% or more of the then outstanding shares of Common Stock (unless
such acquisition is made pursuant to a
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tender or exchange offer for all outstanding shares of the Company, upon terms
and conditions determined by a majority of the Continuing Directors (as defined
below) to be in the best interests of the Company and its shareholders (a
"Qualifying Offer")), each holder of a Right will thereafter have the right to
receive, upon exercise, Common Stock (or, in certain circumstances, cash,
property or other securities of the Company), having a value equal to two times
[5~the Exercise Price of the Right. The Exercise Price is the Purchase Price
times the number of shares of Common Stock associated with each Right
(initially, one). Notwithstanding any of the foregoing, following the
occurrence of the event set forth in this paragraph, all Rights that are, or
(under certain circumstances specified in the Rights Agreement) were,
beneficially owned by any Acquiring Person will be null and void.
For example, at an exercise price of $50 per Right, each Right
not owned by an Acquiring Person (or by certain related parties or transferees)
following the event set forth in the preceding paragraph would entitle its
holder to purchase $100 worth of Common Stock (or other consideration, as noted
above) for $50. Assuming that the Common Stock had a per share market price of
$10 at such time, the holder of each valid Right would be entitled to purchase
10 shares of Common Stock for $50.
In the event that at any time following the Stock Acquisition
Date, (i) the Company is acquired in a merger or business combination
transaction in which the Company is not the surviving corporation (other than a
merger consummated pursuant to a Qualifying Offer); (ii) the Company is the
surviving corporation in a consolidation or merger pursuant to which all or
part of the outstanding shares of Common Stock are changed or exchanged for
stock or other securities of any other person or cash or any other property; or
(iii) more than 50% of the combined assets or earning power is sold or
transferred (in each case other than certain consolidations with, mergers with
and into, or sales of assets or earning power by or to subsidiaries of the
Company as specified in the Rights Agreement), each holder of a Right (except
Rights which have previously been voided as set forth above) shall thereafter
have the right to receive, upon exercise thereof, Common Stock of the acquiring
company having a value equal to two times the Exercise Price of the Right. The
events described in this paragraph and in the second preceding paragraph are
referred to as the "Triggering Events."
The Purchase Price payable, the number and kind of shares covered
by each Right and the number of Rights outstanding 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 securities convertible into Preferred Stock at
less than the current market price of the Preferred Stock, or (iii) upon the
distribution to holders of the Preferred Stock of evidences of indebtedness,
cash (excluding regular quarterly cash dividends), assets (other than dividends
payable in Preferred Stock) or of subscription rights or warrants (other than
those referred to in (ii) immediately above).
With certain exceptions, no adjustments in the Purchase Price
will be required until cumulative adjustments amount to at least 1% of the
Purchase Price. No fractional shares of Preferred Stock are required to be
issued (other than fractions which are integral multiples of one
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one-hundredth of a share of Preferred Stock) and, in lieu thereof, the Company
may make an adjustment in cash based on the market price of the Preferred Stock
on the last trading date prior to the date of exercise.
At any time until ten 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, shares of Common Stock or other
consideration deemed appropriate by the Board of Directors). Immediately upon
the action of the Board of 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 "Continuing Director" means any member of the Board of
Directors of the Company who was a member of the Board prior to the date of the
Rights Agreement, and any person who is subsequently elected to the Board if
such person is recommended or approved by a majority of the Continuing
Directors, but shall not include an Acquiring Person, or an affiliate or
associate of an Acquiring Person, or any representative of the foregoing
entities.
Until a Right is exercised, the holder thereof, as such, will
have no rights as a shareholder of the Company, including, without limitation,
the right to vote or to receive dividends. While the distribution of the
Rights will not be taxable to shareholders or to the Company, shareholders may,
depending upon the circumstances, recognize taxable income in the event that
the Rights become exercisable for Common Stock (or other consideration) of the
Company as set forth above or in the event that the Rights are redeemed.
Other than those provisions relating to the principal economic
terms of the Rights, any of the provisions of the Rights Agreement may be
amended by the Board of Directors of the Company prior to the Distribution
Date. After the Distribution Date, the provisions of the Rights Agreement may
be amended by the Board in order to cure any ambiguity, to make changes which
do not adversely affect the interests of holders of Rights or to shorten or
lengthen any time period under the Rights Agreement; provided, however, that
no amendment to adjust the time period governing redemption shall be made at
such time as the Rights are not redeemable. Under certain circumstances, the
Board of Directors may amend the Rights Agreement to increase the Purchase
Price or extend the Final Expiration Date.
As of August 5, 1997, there were 122,148,824 shares of Common Stock
outstanding, and there were 14,091,984 shares of Common Stock reserved for
issuance under the Company's various stock plans. Each outstanding share of
Common Stock on August 15, 1997 will receive one Right. As long as the Rights
are attached to the Common Stock and in certain other circumstances described
above, the Company will issue one Right for each share of Common Stock issued.
There will be 1,340,750 shares of Preferred Stock reserved for issuance upon
exercise of the Rights.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
without conditioning the offer on a
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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 since the Board of Directors may, at its option, at
any time prior to the close of business on the earlier of (i) the tenth day
following the Stock Acquisition Date or (ii) August 5, 2007 redeem all but not
less than all the then outstanding Rights at the Redemption Price. It should
be noted, however, that the Company's Articles of Incorporation require a
supermajority vote for certain business transactions with a 20% or greater
stockholder and provides for a classified Board of Directors.
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 attached hereto as Exhibit 4.1 and is incorporated
herein by reference. The foregoing description of the Rights does not purport
to be complete and is qualified in its entirety by reference to such Exhibit.
Item 7. Financial Statements, Pro Forma Financial Information and
Exhibits.
(c) Exhibits
<TABLE>
<CAPTION>
Exhibit No. Exhibit
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<S> <C>
3.1 Twenty-Seventh Amended Articles of Incorporation.
4.1 Rights Agreement, dated as of August 5, 1997,
between Cooper Industries, Inc. and First Chicago
Trust Company of New York.
20.1 Form of Letter to Shareholders, dated August 21,
1997, describing the Shareholder Rights Plan.
99.1 Press Release dated August 5, 1997, announcing
adoption of the Shareholder Rights Plan.
</TABLE>
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
COOPER INDUSTRIES, INC.
Date: August 21, 1997 /s/Diane K. Schumacher
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Diane K. Schumacher
Senior Vice President, General
Counsel and Secretary
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EXHIBIT INDEX
<TABLE>
<CAPTION>
No. Exhibit
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3.1 - Twenty-Seventh Amended Articles of Incorporation
4.1 - Rights Agreement, dated as of August 5, 1997, between Cooper
Industries, Inc. and First Chicago Trust Company of New York.
20.1 - Form of Letter to Shareholders, dated August 21, 1997, describing
the Shareholder Rights Plan.
99.1 - Press Release dated August 5, 1997, announcing adoption of the
Shareholder Rights Plan.
</TABLE>
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EXHIBIT 3.1
TWENTY-SEVENTH AMENDED ARTICLES OF INCORPORATION
OF
COOPER INDUSTRIES, INC.
ARTICLE I
NAME
The name of the Corporation shall be COOPER INDUSTRIES, INC.
ARTICLE II
PRINCIPAL OFFICE IN OHIO
The place in Ohio where the principal office of the Corporation is to be
located as provided in the Ohio Revised Code, Section 1701.04, is Cleveland in
Cuyahoga County.
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be formed under Sections 1701.01 to
1701.98, inclusive, of the Ohio Revised Code, as now in effect or hereafter
amended.
ARTICLE IV
AUTHORIZED SHARES
The authorized number of shares of the Corporation shall consist of
1,340,750 shares of Preferred Stock with no par value (hereinafter called
"Preferred Stock"), 2,821,079 shares of Preferred Stock par value $1.00 per
share (hereinafter called "Preferred Stock ($1 par)"), 10,000,000 shares of
Preferred Stock par value $2.00 per share (hereinafter called "$2.00 Par
Preferred Stock") and 250,000,000 shares of Common Stock par value $5.00 per
share (hereinafter called "Common Stock"). No holder of shares of any class of
stock of the Corporation shall as such holder have any preemptive right to
purchase shares of any class of stock of the Corporation or shares or other
securities convertible into or exchangeable for or carrying rights or options
to purchase shares of any class of stock of the Corporation, whether such class
of stock, shares or other securities are now or hereafter authorized, which at
any time may be proposed to be issued by the Corporation or subjected to rights
or options to purchase granted by the Corporation. Except as otherwise
specifically provided in this Article IV, any action to be taken by the
shareholders of the Corporation under Sections 1701.01 to 1701.98, inclusive,
of the Ohio Revised Code which would require the affirmative vote of two-thirds
of the voting power unless otherwise provided in the Corporation's Articles of
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Incorporation, may be taken by the affirmative vote of a majority of the voting
power of the Corporation.
A. TERMS OF PREFERRED STOCK
The Shares of Preferred Stock shall have the following express terms:
SECTION 4.1A--Issue in Series--Terms to be Fixed by Directors--The
Preferred Stock may be issued from time to time in one or more series. All
shares of Preferred Stock shall be of equal rank and shall be identical, except
in respect of the matters that may be fixed by the Board of Directors as
hereinafter provided, and each share of each series shall be identical with all
other shares of such series, except as to the date from which dividends are
cumulative. Subject to the provisions of Sections 4.2A to 4.8A, both
inclusive, which provisions shall apply to all Preferred Stock, the Board of
Directors hereby is authorized to cause such shares to be issued in one or more
series and with respect to each such series prior to the issuance thereof to
fix:
(a) the designation of the series, which may be by distinguishing
number, letter or title;
(b) the number of shares of the series, which number the Board of
Directors may (except where otherwise provided in the creation of the
series) increase or decrease (but not below the number of shares thereof
then outstanding);
(c) the dividend rate of the series;
(d) the dates of payment of dividends and the dates from which
dividends shall be cumulative;
(e) the redemption rights and price or prices for shares of the
series;
(f) sinking fund requirements, if any, for the purchase or
redemption of shares of the series;
(g) the liquidation price payable on shares of the series in the
event of any liquidation, dissolution or winding up of the affairs of
the Corporation;
(h) whether the shares of the series shall be convertible into
Common Stock, and, if so, the conversion price or prices, any
adjustments thereof, and all other terms and conditions upon which such
conversion may be made; and
(i) restrictions (in addition to those set forth in Sections
4.6A(b) and 4.6A(c)) on the issuance of shares of any class or series.
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The Board of Directors is authorized to adopt from time to time
amendments to the Articles of Incorporation fixing or changing, with respect to
each such series, the matters described in clauses (a) to (i), both inclusive,
of this Section 4.1A.
SECTION 4.2A--Dividends--The holders of Preferred Stock of each series,
in preference to the holders of Common Stock and of any other class of shares
ranking junior to the Preferred Stock, shall be entitled to receive out of any
funds legally available and when and as declared by the Board of Directors
dividends in cash at the rate for such series fixed in accordance with the
provisions of Section 4.1A and no more, payable quarterly on the dates fixed
for such series. Such dividends shall be cumulative, in the case of shares of
each particular series, from and after the date or dates fixed with respect to
such series. No dividends may be paid upon or declared or set apart for any of
the Preferred Stock for any quarterly dividend period unless at the same time a
like proportionate dividend for the same quarterly dividend period, ratable in
proportion to the respective annual dividend rates fixed therefor, shall be
paid upon or declared or set apart for all Preferred Stock of all series then
issued and outstanding and entitled to receive such dividend.
SECTION 4.3A--Dividends on Junior Stock--In no event so long as any
Preferred Stock shall be outstanding shall any dividends, except a dividend
payable in Common Stock or other shares ranking junior to the Preferred Stock,
be paid or declared or any distribution be made on the Common Stock or any
other shares ranking junior to the Preferred Stock, nor shall any Common Stock
or any other shares ranking junior to the Preferred Stock be purchased, retired
or otherwise acquired by the Corporation (except out of the proceeds of the
sale of Common Stock or other shares ranking junior to the Preferred Stock):
(a) unless all accrued and unpaid dividends on Preferred Stock,
including the full dividends for the current quarterly dividend period,
shall have been declared and paid or a sum sufficient for payment
thereof set apart; and
(b) unless there shall be no arrearages with respect to the
redemption of Preferred Stock of any series from any sinking fund
provided for shares of such series in accordance with the provisions of
Section 4.1A.
SECTION 4.4A--Redemption--(a) Subject to the express terms of each
series and to the provisions of Section 4.6A(b)(iii), the Corporation may from
time to time redeem all or any part of the Preferred Stock of any series at the
time outstanding (i) at the option of the Board of Directors at the applicable
redemption price for such series fixed in accordance with the provisions of
Section 4.1A or (ii) in fulfillment of the requirements of any sinking fund
provided for shares of such series at the applicable sinking fund redemption
price, fixed in accordance with the provisions of Section 4.1A, together in
each case with accrued and unpaid dividends to the redemption date.
(b) Notice of every such redemption shall be mailed, postage prepaid, to
the holders of record of the Preferred Stock to be redeemed at their respective
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addresses then appearing on the books of the Corporation, not less than thirty
(30) days nor more than sixty (60) days prior to the date fixed for such
redemption. At any time before or after notice has been given as above
provided, the Corporation may deposit the aggregate redemption price of the
shares of Preferred Stock to be redeemed with any bank or trust company, having
capital and surplus of more than Five Million Dollars ($5,000,000), named in
such notice, directed to be paid to the respective holders of the shares of
Preferred Stock so to be redeemed, in amounts equal to the redemption price of
all shares of Preferred Stock so to be redeemed, on surrender of the stock
certificate or certificates held by such holders, and upon the making of such
deposit such holders shall cease to be shareholders with respect to such
shares, and after such notice shall have been given and such deposit shall have
been made such holders shall have no interest in or claim against the
Corporation with respect to such shares except only to receive such money from
such bank or trust company without interest or the right to exercise, before
the redemption date, any unexpired privileges of conversion. In case less
than all of the outstanding shares of Preferred Stock are to be redeemed, the
Corporation shall select by lot the shares so to be redeemed in such manner as
shall be prescribed by its Board of Directors. If the holders of shares of
Preferred Stock which shall have been called for redemption shall not, within
ten years after such deposit, claim the amount deposited for the redemption
thereof, any such bank or trust company shall, upon demand, pay over to the
Corporation such unclaimed amounts and thereupon such bank or trust company
and the Corporation shall be relieved of all responsibility in respect thereof
and to such holders.
(c) Any shares of Preferred Stock which are redeemed by the Corporation
pursuant to the provisions of this Section 4.4A and any shares of Preferred
Stock which are purchased and delivered in satisfaction of any sinking fund
requirements provided for shares of such series and any shares of Preferred
Stock which are converted in accordance with the express terms thereof shall be
cancelled and not reissued. Any shares of Preferred Stock otherwise acquired
by the Corporation shall resume the status of authorized and unissued shares
of Preferred Stock without serial designation.
SECTION 4.5A--Liquidation--(a) The holders of Preferred Stock of any
series shall, in case of any liquidation, dissolution or winding up of the
affairs of the Corporation be entitled to receive in full out of the assets of
the Corporation, including its capital, before any amount shall be paid or
distributed among the holders of the Common Stock or any other shares ranking
junior to the Preferred Stock the amounts fixed with respect to shares of such
series in accordance with Section 4.1A. In case the net assets of the
Corporation legally available therefor are insufficient to permit the payment
upon all outstanding shares of Preferred Stock of the full preferential amount
to which they are respectively entitled, then such net assets shall be
distributed ratably upon outstanding shares of Preferred Stock in proportion to
the full preferential amount to which each such share is entitled. After
payment to holders of Preferred Stock of the full preferential amounts as
aforesaid, holders of Preferred Stock as such shall have no right or claim to
any of the remaining assets of the Corporation.
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(b) The merger or consolidation of the Corporation into or with any
other corporation, or the merger of any other corporation into it, or the sale,
lease or conveyance of all or substantially all the property or business of the
Corporation, shall not be deemed to be a dissolution, liquidation or winding
up, voluntary or involuntary, for the purposes of this Section 4.5A.
SECTION 4.6A-- Voting--(a) The holders of Preferred Stock shall be
entitled to one vote for each share of such stock upon all matters presented to
the shareholders; and, except as otherwise provided herein or required by law,
the holders of Preferred Stock and the holders of Common Stock shall vote
together as one class on all matters. If, and so often as, the Corporation
shall be in default in the payment of six (6) full quarterly dividends (whether
or not consecutive) on any series of Preferred Stock at the time outstanding,
whether or not earned or declared, the holders of Preferred Stock of all
series, voting separately as a class and in addition to all other rights to
vote for Directors, shall be entitled to elect, as herein provided, two (2)
members of the Board of Directors of the Corporation who shall be in addition
to the regular members of the Board of Directors elected by the common
shareholders pursuant to the Corporation's Code of Regulations; provided,
however, that the holders of shares of Preferred Stock shall not have or
exercise such special class voting rights except at meetings of the
shareholders for the election of Directors at which the holders of not less
than thirty-five percent (35%) of the outstanding shares of Preferred Stock of
all series then outstanding are present in person or by proxy; and provided
further that the special class voting rights provided for herein when the same
shall have become vested shall remain so vested until all accrued and unpaid
dividends on the Preferred Stock of all series then outstanding shall have been
paid, whereupon the number of persons constituting the Board of Directors
shall be reduced by the number of Directors then in office elected pursuant to
this Section, the term of office of said Directors so elected shall end, and
the holders of Preferred Stock shall be divested of their special class voting
rights in respect of subsequent elections of Directors, subject to the
revesting of such special class voting rights in the event hereinabove
specified in this paragraph. A vacancy in the class of Directors elected
pursuant to this Section shall be filled by the remaining Director of the
class and the Code of Regulations in effect at the time of filing of these
terms and provisions is hereby amended to the extent it is inconsistent
herewith. In the event of default entitling the holders of Preferred Stock to
elect two (2) Directors as above specified, a special meeting of the
shareholders for the purpose of electing such Directors shall be called by the
Secretary of the Corporation upon written request of, or may be called by, the
holders of record of at least ten percent (10%) of the shares of Preferred
Stock of all series at the time outstanding, and notice thereof shall be given
in the same manner as that required for the annual meeting of shareholders;
provided, however, that the Corporation shall not be required to call such
special meeting if the annual meeting of shareholders shall be held within
ninety (90) days after the date of receipt of the foregoing written request
from the holders of Preferred Stock. At any meeting at which the holders of
Preferred Stock shall be entitled to elect Directors, the holders of
thirty-five percent (35%) of the then outstanding shares of Preferred Stock of
all series, present in person or by proxy, shall be sufficient to constitute a
quorum, and the vote of the holders of a majority of such shares so present at
any such meeting at which there shall be such a quorum
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shall be sufficient to elect the members of the Board of Directors which the
holders of Preferred Stock are entitled to elect as hereinabove provided.
(b) The affirmative vote of the holders of at least two-thirds (2/3) of
the shares of Preferred Stock at the time outstanding, given in person or by
proxy at a meeting called for the purpose at which the holders of Preferred
Stock shall vote separately as a class, shall be necessary to effect any one or
more of the following (but so far as the holders of Preferred Stock are
concerned, such action may be effected with such vote):
(i) any amendment, alteration or repeal of any of the provisions
of the Amended Articles of Incorporation or of the Regulations of the
Corporation which affects adversely the voting powers, rights or
preferences of the holders of Preferred Stock; provided, however, that,
for the purposes of this clause only, neither the amendment of the
Amended Articles of Incorporation so as to authorize or create, or to
increase the authorized or outstanding amount of, Preferred Stock or of
any shares of any class ranking on a parity with or junior to the
Preferred Stock, nor the amendment of the provisions of the Regulations
so as to increase the number of Directors of the Corporation shall be
deemed to affect adversely the voting powers, rights or preferences of
the holders of Preferred Stock; and provided further, that if such
amendment, alteration or repeal affects adversely the rights or
preferences of one or more but not all series of Preferred Stock at the
time outstanding, only the affirmative vote of the holders of at least
two-thirds (2/3) of the number of the shares at the time outstanding of
the series so affected shall be required;
(ii) the authorization or creation of, or the increase in the
authorized amount of any shares of any class, or any security
convertible into shares of any class, ranking prior to the Preferred
Stock; or
(iii) the purchase or redemption (for sinking fund purposes or
otherwise) of less than all of the Preferred Stock then outstanding
except in accordance with a stock purchase offer made to all holders of
record of Preferred Stock, unless all dividends upon all Preferred Stock
then outstanding for all previous quarterly dividend periods shall have
been declared and paid or funds therefor set apart and all accrued
sinking fund obligations applicable thereto shall have been complied
with.
(c) the affirmative vote of the holders of at least a majority of the
shares of Preferred Stock at the time outstanding, given in person or by proxy
at a meeting called for the purpose at which the holders of Preferred Stock
shall vote separately as a class, shall be necessary to effect any one or more
of the following (but so far as the holders of Preferred Stock are concerned,
such action may be effected with such vote):
(i) The sale, lease or conveyance by the Corporation of all or
substantially all of its property or business, or its consolidation with
or merger into any other corporation unless the corporation resulting
from such consolidation or merger
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will have after such consolidation or merger no class of shares either
authorized or outstanding ranking prior to or on a parity with the
Preferred Stock except the same number of shares ranking prior to or on
a parity with the Preferred Stock and having the same rights and
preferences as the shares of the Corporation authorized and outstanding
immediately preceding such consolidation or merger, and each holder of
Preferred Stock immediately preceding such consolidation or merger
shall receive the same number of shares, with the same rights and
preferences, of the resulting corporation; or
(ii) The authorization of any shares ranking on a parity with the
Preferred Stock or an increase in the authorized number of shares of
Preferred Stock.
SECTION 4.7A--Preemptive Rights--The holders of Preferred Stock shall
have no preemptive right to purchase or have offered to them for purchase any
shares or other securities of the Corporation, whether now or hereafter
authorized.
SECTION 4.8A--Prior or Parity Stock--Whenever reference is made to
shares "ranking prior to the Preferred Stock" or "on a parity with the
Preferred Stock", such reference shall mean and include all shares of the
Corporation in respect of which the rights of the holders thereof as to the
payment of dividends or as to distributions in the event of a voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation are given preference over, or rank on an equality with (as the case
may be), the rights of the holders of Preferred Stock; and whenever reference
is made to shares "ranking junior to the Preferred Stock", such reference shall
mean and include all shares of the Corporation in respect of which the rights
of the holders thereof as to the payment of dividends and as to distributions
in the event of a voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the Corporation are junior and subordinate to the rights
of the holders of Preferred Stock. The Preferred Stock ($1 par) shall rank on
a parity with the Preferred Stock and the $2.00 Par Preferred Stock.
B. EXPRESS TERMS OF THE SERIES A PARTICIPATING PREFERRED STOCK
SECTION 4.1B--Designation and Amount--The shares of such series shall be
designated as "Series A Participating Preferred Stock" and the number of shares
constituting such series shall initially be 1,340,750, no par value, such
number of shares to be subject to increase or decrease by action of the Board
of Directors.
SECTION 4.2B--Dividends and Distributions--(a) Subject to the prior and
superior rights of the holders of any shares of any series of Preferred Stock
ranking prior and superior to the shares of Series A Participating Preferred
Stock with respect to dividends, the holders of shares of Series A
Participating Preferred Stock shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the last day of March, June,
September and December in each year (each such date being referred to herein as
a "Quarterly Dividend Payment Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or fraction of a
share of Series A Participating
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Preferred Stock, in an amount per share (rounded to the nearest cent) equal to
the greater of (a) $10.00 or (b) subject to the provision for adjustment
hereinafter set forth, 100 times the aggregate per share amount of all cash
dividends, and 100 times the aggregate per share amount (payable in kind) of
all noncash dividends or other distributions other than a dividend payable in
shares of Common Stock or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on the Common Stock, par
value $5.00 per share, of the Corporation (the "Common Stock") since the
immediately preceding Quarterly Dividend Payment Date, or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series A Participating Preferred Stock. In the event
the Corporation shall at any time after August 5, 1997 (the "Rights
Declaration Date")(i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine
the outstanding Common Stock into a smaller number of shares, then in each
such case the amount to which holders of shares of Series A Participating
Preferred Stock were entitled immediately prior to such event under clause (b)
of the preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
(b) The Corporation shall declare a dividend or distribution on the
Series A Participating Preferred Stock as provided in paragraph (a) above
concurrently with its declaration of a dividend or distribution on the Common
Stock (other than a dividend payable in shares of Common Stock); provided that,
in the event no dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly Dividend Payment Date and
the next subsequent Quarterly Dividend Payment Date, a dividend of $10.00 per
share of the Series A Participating Preferred Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Participating Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares unless the date of
issue of such shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such shares shall begin to
accrue from the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A Participating Preferred Stock
entitled to receive a quarterly dividend and before such Quarterly Dividend
Payment Date, in either of which events such dividends shall begin to accrue
and be cumulative from such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall not bear interest. Dividends paid on the shares of
Series A Participating Preferred Stock in an amount less than the total amount
of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the
determination of holders of shares of Series A Participating Preferred Stock
entitled to receive payment of a dividend or distribution declared thereon,
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which record date shall be no more than thirty (30) days prior to the date
fixed for the payment thereof.
SECTION 4.3B--Voting Rights--The holders of shares of Series A
Participating Preferred Stock shall have voting rights as set forth in Section
4.6A of the Corporation's Articles of Incorporation.
SECTION 4.4B--Certain Restrictions--(a) Whenever quarterly dividends or
other dividends or distributions payable on the Series A Participating
Preferred Stock as provided in Section 4.2B are in arrears, thereafter and
until all accrued and unpaid dividends and distributions, whether or not
declared, on shares of Series A Participating Preferred Stock outstanding shall
have been paid in full, the Corporation shall not
(i) declare or pay dividends on, make any other distributions on,
or redeem or purchase or otherwise acquire for consideration any shares
of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Participating Preferred
Stock;
(ii) declare or pay dividends on or make any other distributions
on any shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A
Participating Preferred Stock, except dividends paid ratably on the
Series A Participating Preferred Stock and all such parity stock on
which dividends are payable or in arrears in proportion to the total
amounts to which the holders of all such shares are then entitled;
(iii) purchase or otherwise acquire for consideration any shares
of Series A Participating Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined by the
Board of Directors) to all holders of such shares upon such terms as the
Board of Directors, after consideration of the annual dividend rates and
other rights and preferences of the series, shall determine in good
faith will result in fair and equitable treatment to the holders of such
series.
(b) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (a) of this Section
4.4B, purchase or otherwise acquire such shares at such time and in such
manner.
SECTION 4.5B--Reacquired Shares--Any shares of Series A Participating
Preferred Stock purchased or otherwise acquired by the Corporation in any
manner whatsoever shall be retired promptly after the acquisition thereof.
SECTION 4.6B--Liquidation, Dissolution or Winding Up--(a) Upon any
liquidation (voluntary or otherwise), dissolution or winding up of the
Corporation, no distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Participating Preferred Stock unless, prior
thereto, the holders of shares of Series A Participating Preferred Stock shall
have received $100 per share, plus an amount equal to accrued and unpaid
dividends and
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distributions thereon, whether or not declared, to the date of such payment
(the "Series A Liquidation Preference").
(b) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference and
the liquidation preferences of all other series of preferred stock, if any,
which rank on a parity with the Series A Participating Preferred Stock then
such remaining assets shall be distributed ratably to the holders of such
parity shares in proportion to their respective liquidation preferences.
SECTION 4.7B--No Redemption--The shares of Series A Participating
Preferred Stock shall not be redeemable.
SECTION 4.8B--Ranking--The Series A Participating Preferred Stock shall
rank equal to all other series of the Corporation's Preferred Stock as to the
payment of dividends and the distribution of assets.
SECTION 4.9B--Amendment--The Restated Articles of Incorporation of the
Corporation shall not be further amended in any manner which would materially
alter or change the powers, preferences or special rights of the Series A
Participating Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of two-thirds (2/3) or more of the outstanding
shares of the Series A Participating Preferred Stock, voting separately as a
class.
SECTION 4.1OB--Fractional Shares--Series A Participating Preferred Stock
may be issued in fractions of a share which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the benefit of all
other rights of holders of Series A Participating Preferred Stock.
C. TERMS OF PREFERRED STOCK ($1 Par)
The shares of Preferred Stock ($1 par) shall have the following express
terms:
SECTION 4.1C--Issue in Series--Terms to be Fixed by Directors--The
Preferred Stock ($1 par) may be issued from time to time in one or more
series. All shares of Preferred Stock shall be of equal rank and shall be
identical, except in respect of the matters that may be fixed by the Board of
Directors as hereinafter provided, and each share of each series shall be
identical with all other shares of such series, except as to the date from
which dividends are cumulative. Subject to the provisions of Sections 4.2C to
4.8C, both inclusive, which provisions shall apply to all Preferred Stock ($1
par), the Board of Directors hereby is authorized to cause such shares to be
issued in one or more series and with respect to each such series prior to the
issuance thereof to fix:
(a) the designation of the series, which may be by distinguishing
number, letter or title;
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(b) the number of shares of the series, which number the Board of
Directors may (except where otherwise provided in the creation of the
series) increase or decrease (but not below the number of shares thereof
then outstanding);
(c) the dividend rate of the series;
(d) the dates of payment of dividends and the dates from which
dividends shall be cumulative;
(e) the redemption rights and price or prices for shares of the
series;
(f) sinking fund requirements, if any, for the purchase or
redemption of shares of the series;
(g) the liquidation price payable on shares of the series in the
event of any liquidation, dissolution or winding up of the affairs of
the Corporation;
(h) whether the shares of the series shall be convertible into
Common Stock, and, if so, the conversion price or prices, any
adjustments thereof, and all other terms and conditions upon which such
conversion may be made; and
(i) restrictions (in addition to those set forth in Sections
4.6C(b) and 4.6C(c)) on the issuance of shares of any class or series.
The Board of Directors is authorized to adopt from time to time amendments to
the Articles of Incorporation fixing or changing, with respect to each such
series, the matters described in clauses (a) to (i), both inclusive, of this
Section 4.1C.
SECTION 4.2C--Dividends--The holders of Preferred Stock ($1 par) of each
series, in preference to the holders of Common Stock and of any other class of
shares ranking junior to the Preferred Stock ($1 par), shall be entitled to
receive out of any funds legally available and when and as declared by the
Board of Directors dividends in cash at the rate for such series fixed in
accordance with the provisions of Section 4.1C and no more, payable quarterly
on the dates fixed for such series. Such dividends shall be cumulative, in the
case of shares of each particular series, from and after the date or dates
fixed with respect to such series. No dividends may be paid upon or declared
or set apart for any of the Preferred Stock ($1 par) for any quarterly dividend
period unless at the same time a like proportionate dividend for the same
quarterly dividend period, ratable in proportion to the respective annual
dividend rates fixed therefor, shall be paid upon or declared or set apart for
all Preferred Stock ($1 par) of all series then issued and outstanding and
entitled to receive such dividend.
SECTION 4.3C--Dividends on Junior Stock--In no event so long as any
Preferred Stock ($1 par) shall be outstanding shall any dividends, except a
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dividend payable in Common Stock or other shares ranking junior to the
Preferred Stock ($1 par) be paid or declared or any distribution be made on the
Common Stock or any other shares ranking junior to the Preferred Stock ($1 par)
be purchased, retired or otherwise acquired by the Corporation (except out of
the proceeds of the sale of Common Stock or other shares ranking junior to the
Preferred Stock ($1 par)):
(a) unless all accrued and unpaid dividends on Preferred Stock
($1 par), including the full dividends for the current quarterly
dividend period, shall have been declared and paid or a sum sufficient
for payment thereof set apart; and
(b) unless there shall be no arrearages with respect to the
redemption of Preferred Stock ($1 par) of any series from any sinking
fund provided for shares of such series in accordance with the
provisions of Section 4.1C.
SECTION 4.4C--Redemption--(a) Subject to the express terms of each
series and to the provisions of Section 4.6C(b)(iii), the Corporation may from
time to time redeem all or any part of the Preferred Stock ($1 par) of any
series at the time outstanding (i) at the option of the Board of Directors at
the applicable redemption price for such series fixed in accordance with the
provisions of Section 4.1C or (ii) fulfillment of the requirements of any
sinking fund provided for shares of such series at the applicable sinking fund
redemption price, fixed in accordance with the provisions of Section 4.1C,
together in each case with accrued and unpaid dividends to the redemption date.
(b) Notice of every such redemption shall be mailed, postage prepaid, to
the holders of record of Preferred Stock ($1 par) to be redeemed at their
respective addresses then appearing on the books of the Corporation, not less
than thirty (30) days nor more than sixty (60) days prior to the date fixed for
such redemption. At any time before or after notice has been given as above
provided, the Corporation may deposit the aggregate redemption price of the
shares of Preferred Stock ($1 par) to be redeemed with any bank or trust
company, having capital and surplus of more than Five Million Dollars
($5,000,000), named in such notice, directed to be paid to the respective
holders of the shares of Preferred Stock ($1 par) so to be redeemed, in amounts
equal to the redemption price of all shares of Preferred Stock ($1 par) so to
be redeemed, on surrender of stock certificate or certificates held by such
holders, and upon the making of such deposit such holders shall cease to be
shareholders with respect to such shares, and after such notice shall have been
given and such deposit shall have been made, such holders shall have no
interest in or claim against the Corporation with respect to such shares except
only to receive such money from such bank or trust company without interest or
the right to exercise, before the redemption date, any unexpired privileges of
conversion. In case less than all of the outstanding shares of any series of
Preferred Stock ($1 par) is to be redeemed, the Corporation shall select by lot
the shares of the series so to be redeemed in such manner as shall be
prescribed by its Board of Directors. If the holders of shares of Preferred
Stock ($1 par) which shall have been called for redemption shall not, within
six (6) years after such deposit, claim the amount deposited for the redemption
thereof, any such bank or trust company shall, upon
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demand, pay over to the Corporation such unclaimed amounts and thereupon such
bank or trust company and the Corporation shall be relieved of all
responsibility in respect thereof and to such holders.
(c) Any shares of Preferred Stock ($1 par) which are redeemed by the
Corporation pursuant to the provisions of this Section 4.4C and any shares of
Preferred Stock ($1 par) which are purchased and delivered in satisfaction of
any sinking fund requirements provided for shares of such series and any shares
of Preferred Stock ($1 par) which are converted in accordance with the express
terms thereof shall be cancelled and not reissued. Any shares of Preferred
Stock ($1 par) otherwise acquired by the Corporation shall resume the status of
authorized and unissued shares of Preferred Stock ($1 par) without serial
designation.
SECTION 4.5C--Liquidation--(a) The holders of Preferred Stock ($1 par)
of any series shall, in case of any liquidation, dissolution or winding up of
the affairs of the Corporation, be entitled to receive in full out of the
assets of the Corporation, including its capital, before any amount shall be
paid or distributed among the holders of the Common Stock or any other shares
ranking junior to the Preferred Stock ($1 par) the amounts fixed with respect
to shares of such series in accordance with Section 4.1C. In case the net
assets of the Corporation legally available therefor are insufficient to permit
the payment upon all outstanding shares of Preferred Stock ($1 par) of the full
preferential amount to which they are respectively entitled, then such net
assets shall be distributed ratably upon outstanding shares of Preferred Stock
($1 par) in proportion to the full preferential amounts to which each such
share is entitled. After payment to holders of Preferred Stock ($1 par) of the
full preferential amounts as aforesaid, holders of Preferred Stock ($1 par) as
such shall have no right or claim to any of the remaining assets of the
Corporation.
(b) The merger or consolidation of the Corporation into or with any
other corporation, or the merger of any other corporation into it, or the sale,
lease or conveyance of all or substantially all the property or business of the
Corporation, shall not be deemed to be a dissolution, liquidation or winding
up, voluntary or involuntary, for the purposes of this Section 4.5C.
SECTION 4.6C--Voting--(a) The holders of Preferred Stock ($1 par) shall
be entitled to one-tenth (1/10) vote for each share of such stock upon all
matters presented to the shareholders; and, except as otherwise provided herein
or required by law, the holders of Preferred Stock ($1 par) and the holders of
Preferred Stock, the holders of $2.00 Par Preferred Stock and the holders of
Common Stock shall vote together as one class on all matters. If, and so
often as, the Corporation shall be in default in the payment of six (6) full
quarterly dividends (whether or not consecutive) on any series of Preferred
Stock ($1 par) at the time outstanding, whether or not earned or declared, the
holders of Preferred Stock ($1 par) of all series, voting separately as a class
and in addition to all other rights to vote for Directors, shall be entitled to
elect, as herein provided, two (2) members of the Board of Directors of the
Corporation who shall be in addition to the regular members of the Board of
Directors elected by the common shareholders and directors elected by the
holders of any other class of shares, pursuant to these Amended Articles of
Incorporation or
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the Corporation's Code of Regulations; provided, however, that the holders of
shares of Preferred Stock ($1 par) shall not have or exercise such special
class voting rights except at meetings of the shareholders for the election of
Directors at which the holders of not less than thirty-five percent (35%) of
the outstanding shares of Preferred Stock ($1 par) of all series then
outstanding are present in person or by proxy; and provided further that the
special class voting rights provided for herein when the same shall have become
vested shall remain so vested until all accrued and unpaid dividends on the
Preferred Stock ($1 par) of all series then outstanding shall have been paid,
whereupon the number of persons constituting the Board of Directors shall be
reduced by the number of Directors then in office elected pursuant to this
Section 4.6C, the term of office of said Directors so elected shall end, and
the holders of Preferred Stock ($1 par) shall be divested of their special
class voting rights in respect of subsequent elections of Directors, subject to
the revesting of such special class voting rights in the event hereinabove
specified in this paragraph. A vacancy in the class of Directors elected
pursuant to this Section 4.6C shall be filled by the remaining Directors of the
class and if no other Directors of the class are then in office such vacancy
shall be filled by the holders of Preferred Stock ($1 par) entitled to elect
the class of directors. The Code of Regulations in effect at the time of
filing of these terms and provisions is hereby amended to the extent it is
inconsistent herewith. In the event of default entitling the holders of
Preferred Stock ($1 par) to elect two (2) Directors as above specified, a
special meeting of the shareholders for the purpose of electing such Directors
shall be called by the Secretary of the Corporation upon written request of, or
may be called by, the holders of record of at least ten percent (10%) of the
shares of Preferred Stock ($1 par) of all series at the time outstanding, and
notice thereof shall be given in the same manner as that required for the
annual meeting of shareholders; provided, however, that the Corporation shall
not be required to call such special meeting if the annual meeting of
shareholders shall be held within ninety (90) days after the date of receipt of
the foregoing written request from the holders of Preferred Stock ($1 par). At
any meeting at which the holders of Preferred Stock ($1 par) shall be entitled
to elect Directors, the holders of thirty-five percent (35%) of the then
outstanding shares of Preferred Stock ($1 par) of all series, present in person
or by proxy, shall be sufficient to constitute a quorum, and the vote of the
holders of a majority of such shares so present at any such meeting at which
there shall be such a quorum shall be sufficient to elect the members of the
Board of Directors which the holders of Preferred Stock ($1 par) are entitled
to elect as hereinabove provided.
(b) The affirmative vote of the holders of at least two-thirds of the
shares of Preferred Stock ($1 par) at the time outstanding, given in person or
by proxy at a meeting called for the purpose at which the holders of Preferred
Stock ($1 par) shall vote separately as a class, shall be necessary to effect
any one or more of the following (but so far as the holders of Preferred Stock
($1 par) are concerned, such action may be effected with such vote):
(i) any amendment, alteration or repeal of any of the provisions
of the Amended Articles of Incorporation or of the Regulations of the
Corporation which affects adversely the voting powers, rights or
preferences of the holders of Preferred Stock ($1 par); provided,
however,
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that, for the purposes of this clause only, neither the amendment of the
Amended Articles of Incorporation so as to authorize or create, or to
increase the authorized or outstanding amount of, Preferred Stock ($1
par) or of any shares of any class ranking on a parity with or junior
to the Preferred Stock ($1 par), nor the amendment of the provisions of
the Regulations so as to increase the number of Directors of the
Corporation shall be deemed to affect adversely the voting powers,
rights or preferences of the holders of Preferred Stock ($1 par); and
provided further, that if any amendment, alteration or repeal affects
adversely the rights or preferences of one or more but not all series of
Preferred Stock ($1 par) at the time outstanding, only the affirmative
vote of the holders of at least two-thirds of the number of the shares
at the time outstanding of the series so affected shall be required;
(ii) the authorization or creation of any class, or the increase
in the authorized amount of any shares of any class, or any security
convertible into shares of any class, ranking prior to the Preferred
Stock ($1 par); or
(iii) the purchase or redemption (for sinking fund purposes or
otherwise) of less than all of the Preferred Stock ($1 par) then
outstanding except in accordance with a stock purchase offer made to all
holders of record of Preferred Stock ($1 par), unless all dividends upon
all Preferred Stock ($1 par) then outstanding for all previous quarterly
periods shall have been declared and paid or funds therefor set apart
and all accrued sinking fund obligations applicable thereto shall have
been complied with.
(c) The affirmative vote of the holders of at least a majority of the
shares of Preferred Stock ($1 par) at the time outstanding, given in person or
by proxy at a meeting called for the purpose at which the holders of Preferred
Stock ($1 par) shall vote separately as a class, shall be necessary to effect
any one or more of the following (but so far as the holders of Preferred Stock
($1 par) are concerned, such action may be effected with such vote):
(i) the sale, lease or conveyance by the Corporation of all or
substantially all of its property or business, or its consolidation with
or merger into any other corporation unless the corporation resulting
from such consolidation or merger will have after such consolidation or
merger no class of shares either authorized or outstanding ranking prior
to or on a parity with the Preferred Stock ($1 par) except the same
number of shares ranking prior to or on a parity with the Preferred
Stock ($1 par) and having the same rights and preferences as the shares
of the Corporation authorized and outstanding immediately preceding such
consolidation or merger, and each holder of Preferred Stock ($1 par)
immediately preceding such consolidation or merger shall receive the
same number of shares, with the same rights and preferences, of the
resulting corporation; or
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(ii) the authorization of any shares ranking on a parity with the
Preferred Stock ($1 par) or an increase in the authorized number of
shares of Preferred Stock ($1 par).
SECTION 4.7C--Preemptive Rights--The holders of Preferred Stock ($1 par)
shall have no preemptive right to purchase or have offered to them for purchase
or have offered them for purchase any shares or other securities of the
Corporation, whether now or hereafter authorized.
SECTION 4.8C--Prior or Parity Stock--Whenever reference is made to
shares "ranking prior to the Preferred Stock ($1 par)" or "on a parity with the
Preferred Stock ($1 par)", such reference shall mean and include all shares of
the Corporation in respect of which the rights of the holders thereof as to the
payment of dividends or as to distributions in the event of a voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation are given preference over, or rank on an equality with (as the
case may be) the rights of the holders of Preferred Stock ($1 par); and
whenever reference is made to shares "ranking junior to the Preferred Stock",
such reference shall mean and include all shares of the Corporation in respect
of which the rights of the holders thereof as to the payment of dividends and
as to distributions in the event of a voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation are junior and
subordinate to the rights of the holders of Preferred Stock ($1 par). The
Preferred Stock ($1 par) shall rank on a parity with the Preferred Stock and
the $2.00 Par Preferred Stock.
D. EXPRESS TERMS OF THE $1.60 CONVERTIBLE EXCHANGEABLE PREFERRED STOCK
[EXPLANATORY NOTE: The Express Terms of the $1.60 Convertible
Exchangeable Preferred Stock were deleted following the redemption of said
$1.60 Preferred Stock on January 1, 1995.]
E. TERMS OF $2.00 PAR PREFERRED STOCK
The Shares of $2.00 Par Preferred Stock shall have the following express
terms:
SECTION 4.1E--Issue in Series--Terms to be fixed by Directors--The $2.00
Par Preferred Stock may be issued from time to time in one or more series. All
shares of $2.00 Par Preferred Stock shall be of equal rank and shall be
identical, except in respect of the matters that may be fixed by the Board of
Directors as hereinafter provided, and each share of each series shall be
identical with all other shares of such series, except as to the date from
which dividends are cumulative. Subject to the provisions of Sections 4.2E to
4.8E, both inclusive, which provisions shall apply to all $2.00 Par Preferred
Stock, the Board of Directors hereby is authorized to cause such shares to be
issued in one or more series and with respect to each such series prior to the
issuance thereof to fix:
(a) the designation of the series, which may be by distinguishing
number, letter or title;
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(b) the number of shares of the series, which number the Board
of Directors may (except where otherwise provided in the creation of the
series) increase or decrease (but not below the number of shares thereof
then outstanding);
(c) the dividend rate of the series;
(d) the dates of payment of dividends and the dates from which
dividends shall be cumulative;
(e) the redemption rights and price or prices for shares of the
series;
(f) sinking fund requirements, if any, for the purchase or
redemption of shares of the series;
(g) the liquidation price payable on shares of the series in the
event of any liquidation, dissolution or winding up of the affairs of
the Corporation;
(h) whether the shares of the series shall be convertible into
Common Stock, and, if so, the conversion price or prices, any
adjustments thereof, and all other terms and conditions upon which such
conversion may be made; and
(i) restrictions (in addition to those set forth in Sections
4.6E(b) and 4.6E(c)) on the issuance of shares of any class or series.
The Board of Directors is authorized to adopt from time to time
amendments to the Articles of Incorporation fixing or changing, with respect
to each such series, the matters described in clauses (a) to (i), both
inclusive, of this Section 4.1E.
SECTION 4.2E--Dividends--The holders of $2.00 Par Preferred Stock of
each series, in preference to the holders of Common Stock and of any other
class of shares ranking junior to the $2.00 Par Preferred Stock, shall be
entitled to receive out of any funds legally available and when and as declared
by the Board of Directors dividends in cash at the rate for such series fixed
in accordance with the provisions of Section 4.1E and no more, payable
quarterly on the dates fixed for such series. Such dividends shall be
cumulative, in the case of shares of each particular series, from and after,
the date or dates fixed with respect to such series. No dividends may be paid
upon or declared or set apart for any of the $2.00 Par Preferred Stock for any
quarterly dividend period unless at the same time a like proportionate dividend
for the same quarterly dividend period, ratable in proportion to the respective
annual dividend rates fixed therefor, shall be paid upon or declared or set
apart for all $2.00 Par Preferred Stock of all series then issued and
outstanding and entitled to receive such dividend.
SECTION 4.3E--Dividends on Junior Stock--In no event so long as any
$2.00 Par Preferred Stock shall be outstanding shall any dividends, except a
dividend payable in Common Stock or other shares ranking junior to the $2.00 Par
Preferred
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Stock, be paid or declared or any distribution be made on the Common Stock or
any other shares ranking junior to the $2.00 Par Preferred Stock, nor shall any
Common Stock or any other shares ranking junior to the $2.00 Par Preferred Stock
be purchased, retired or otherwise acquired by the Corporation (except out of
the proceeds of the sale of Common Stock or other shares ranking junior to the
$2.00 Par Preferred Stock):
(a) unless all accrued and unpaid dividends on $2.00 Par
Preferred Stock, including the full dividends for the current quarterly
dividend period, shall have been declared and paid or a sum sufficient
for payment thereof set apart; and
(b) unless there shall be no arrearages with respect to the
redemption of $2.00 Par Preferred Stock of any series from any sinking
fund provided for shares of such series in accordance with the
provisions of Section 4.1E.
SECTION 4.4E--Redemption--(a) Subject to the express terms of each
series and to the provisions of Section 4.6E(b)(iii), the Corporation may from
time to time redeem all or any part of the $2.00 Par Preferred Stock of any
series at the time outstanding (i) at the option of the Board of Directors at
the applicable redemption price for such series fixed in accordance with the
provisions of Section 4.1E or (ii) in fulfillment of the requirements of any
sinking fund provided for shares of such series at the applicable sinking fund
redemption price, fixed in accordance with the provisions of Section 4.1E,
together in each case with accrued and unpaid dividends to the redemption date.
(b) Notice of every such redemption shall be mailed, postage prepaid, to
the holders of record of the $2.00 Par Preferred Stock to be redeemed at their
respective addresses then appearing on the books of the Corporation, not less
than thirty (30) days nor more than sixty (60) days prior to the date fixed for
such redemption. At any time before or after notice has been given as above
provided, the Corporation may deposit the aggregate redemption price of the
shares of $2.00 Par Preferred Stock to be redeemed with any bank or trust
company, having capital and surplus of more than Five Million Dollars
($5,000,000), named in such notice, directed to be paid to the respective
holders of the shares of $2.00 Par Preferred Stock so to be redeemed, in
amounts equal to the redemption price of all shares of $2.00 Par Preferred
Stock so to be redeemed, on surrender of the stock certificate or certificates
held by such holders, and upon the making of such deposit such holders shall
cease to be shareholders with respect to such shares, and after such notice
shall have been given and such deposit shall have been made such holders shall
have no interest in or claim against the Corporation with respect to such
shares except only to receive such money from such bank or trust company
without interest or the right to exercise, before the redemption date, any
unexpired privileges of conversion. In case less than all of the outstanding
shares of any series of $2.00 Par Preferred Stock are to be redeemed, the
Corporation shall select by lot the shares of that series so to be redeemed in
such manner as shall be prescribed by its Board of Directors. If the holders
of shares of $2.00 Par Preferred Stock which shall have been called for
redemption shall not, within ten years after such deposit, claim the amount
deposited for the redemption thereof, any such
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<PAGE> 19
bank or trust company shall, upon demand, pay over to the Corporation such
unclaimed amounts and thereupon such bank or trust company and the Corporation
shall be relieved of all responsibility in respect thereof and to such holders.
(c) Any shares of $2.00 Par Preferred Stock which are redeemed by the
Corporation pursuant to the provisions of this Section 4.4E and any shares of
$2.00 Par Preferred Stock which are purchased and delivered in satisfaction of
any sinking fund requirements provided for shares of such series and any shares
of $2.00 Par Preferred Stock which are converted in accordance with the express
terms thereof shall be cancelled and not reissued. Any shares of $2.00 Par
Preferred Stock otherwise acquired by the Corporation shall resume the status
of authorized and unissued shares of $2.00 Par Preferred Stock without serial
designation.
SECTION 4.5E--Liquidation--(a) The holders of $2.00 Par Preferred Stock
of any series shall, in case of any liquidation, dissolution or winding up of
the affairs of the Corporation be entitled to receive in full out of the assets
of the Corporation, including its capital, before any amount shall be paid or
distributed among the holders of the Common Stock or any other shares ranking
junior to the $2.00 Par Preferred Stock the amounts fixed with respect to
shares of such series in accordance with Section 4.1E. In case the net assets
of the Corporation legally available therefor are insufficient to permit the
payment upon all outstanding shares of $2.00 Par Preferred Stock of the full
preferential amount to which they are respectively entitled, then such net
assets shall be distributed ratably upon outstanding shares of $2.00 Par
Preferred Stock in proportion to the full preferential amount to which each
such share is entitled. After payment to holders of $2.00 Par Preferred Stock
of the full preferential amounts as aforesaid, holders of $2.00 Par Preferred
Stock as such shall have no right or claim to any of the remaining assets of
the Corporation.
(b) The merger or consolidation of the Corporation into or with any
other corporation, or the merger of any other corporation into it, or the sale,
lease or conveyance of all or substantially all the property or business of the
Corporation, shall not be deemed to be a dissolution, liquidation or winding
up, voluntary or involuntary, for the purposes of this Section 4.5E.
SECTION 4.6E--Voting--(a) The holders of $2.00 Par Preferred Stock shall
be entitled to one vote for each share of such stock upon all matters presented
to the shareholders; and, except as otherwise provided herein or required by
law, the holders of $2.00 Par Preferred Stock and the holders of Preferred
Stock, the holders of Preferred Stock ($1 par) and the holders of Common Stock
shall vote together as one class on all matters. If, and so often as, the
Corporation shall be in default in the payment of six (6) full quarterly
dividends (whether or not consecutive) on any series of $2.00 Par Preferred
Stock at the time outstanding, whether or not earned or declared, the holders
of $2.00 Par Preferred Stock of all series, voting separately as a class and in
addition to all other rights to vote for Directors, shall be entitled to elect,
as herein provided, two (2) members of the Board of Directors of the
Corporation who shall be in addition to the regular members of the Board of
Directors elected by the common shareholders and directors elected by holders
of any other class of shares pursuant to the Amended Articles of Incorporation
or the Corporation's Code of Regulations;
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provided, however, that the holders of shares of $2.00 Par Preferred Stock
shall not have or exercise such special class voting rights except at meetings
of the shareholders for the election of Directors at which the holders of not
less than thirty-five percent (35%) of the outstanding shares of $2.00 Par
Preferred Stock of all series then outstanding are present in person or by
proxy; and provided further that the special class voting rights provided for
herein when the same shall have become vested shall remain so vested until all
accrued and unpaid dividends on the $2.00 Par Preferred Stock of all series
then outstanding shall have been paid, whereupon the number of persons
constituting the Board of Directors shall be reduced by the number of Directors
then in office elected pursuant to this Section, the term of office of said
Directors so elected shall end, and the holders of $2.00 Par Preferred Stock
shall be divested of their special class voting rights in respect of subsequent
elections of Directors, subject to the revesting of such special class voting
rights in the event hereinabove specified in this paragraph. A vacancy in the
class of Directors elected pursuant to this Section shall be filled by the
remaining Director of the class and the Code of Regulations in effect at the
time of filing of these terms and provisions is hereby amended to the extent it
is inconsistent herewith. In the event of default entitling the holders of
$2.00 Par Preferred Stock to elect two (2) Directors as above specified, a
special meeting of the shareholders for the purpose of electing such Directors
shall be called by the Secretary of the Corporation upon written request of, or
may be called by, the holders of record of at least ten percent (10%) of the
shares of $2.00 Par Preferred Stock of all series at the time outstanding, and
notice thereof shall be given in the same manner as that required for the
annual meeting of shareholders; provided, however, that the Corporation shall
not be required to call such special meeting if the annual meeting of
shareholders shall be held within ninety (90) days after the date of receipt of
the foregoing written request from the holders of $2.00 Par Preferred Stock.
At any meeting at which the holders of $2.00 Par Preferred Stock shall be
entitled to elect Directors, the holders of thirty-five percent (35%) of the
then outstanding shares of $2.00 Par Preferred Stock of all series, present in
person or by proxy, shall be sufficient to constitute a quorum, and the vote of
the holders of a majority of such shares so present at any such meeting at
which there shall be such a quorum shall be sufficient to elect the members
of the Board of Directors which the holders of $2.00 Par Preferred Stock are
entitled to elect as hereinabove provided.
(b) The affirmative vote of the holders of at least two-thirds of the
shares of $2.00 Par Preferred Stock at the time outstanding, given in person or
by proxy at a meeting called for the purpose at which the holders of $2.00 Par
Preferred Stock shall vote separately as a class, shall be necessary to effect
any one or more of the following (but so far as the holders of $2.00 Par
Preferred Stock are concerned, such action may be effected with such vote):
(i) any amendment, alteration or repeal of any of the provisions
of the Amended Articles of Incorporation or of the Regulations of the
Corporation which affects adversely the voting powers, rights or
preferences of the holders of $2.00 Par Preferred Stock; provided,
however, that, for the purposes of this clause only, (i) neither the
amendment of the Amended Articles of Incorporation so as to authorize or
create, or to increase the authorized or outstanding amount of, $2.00
Par
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<PAGE> 21
Preferred Stock or of any shares of any class ranking on a parity with or
junior to the $2.00 Par Preferred Stock, nor the amendment of the
provisions of the Regulations so as to increase the number of Directors
of the Corporation shall be deemed to affect adversely the voting powers,
rights or preferences of the holders of $2.00 Par Preferred Stock; and
provided further, that if such amendment, alteration or repeal affects
adversely the rights or preferences of one or more but not all series of
$2.00 Par Preferred Stock at the time outstanding, only the affirmative
vote of the holders of at least two-thirds (2/3) of the number of the
shares at the time outstanding of the series so affected shall be
required;
(ii) the authorization or creation of, or the increase in the
authorized amount of any shares of any class, or any security
convertible into shares of any class, ranking prior to the $2.00 Par
Preferred Stock; or
(iii) the purchase or redemption (for sinking fund purposes or
otherwise) of less than all of the $2.00 Par Preferred Stock then
outstanding except in accordance with a stock purchase offer made to all
holders of record of $2.00 Par Preferred Stock, unless all dividends
upon all $2.00 Par Preferred Stock then outstanding for all previous
quarterly dividend periods shall have been declared and paid or funds
therefor set apart and all accrued sinking fund obligations applicable
thereto shall have been complied with.
(c) the affirmative vote of the holders of at least a majority of the
shares of $2.00 Par Preferred Stock at the time outstanding, given in person or
by proxy at a meeting called for the purpose at which the holders of $2.00 Par
Preferred Stock shall vote separately as a class, shall be necessary to effect
any one or more of the following (but so far as the holders of $2.00 Par
Preferred Stock are concerned, such action may be effected with such vote):
(i) The sale, lease or conveyance by the Corporation of all or
substantially all of its property or business, or its consolidation with
or merger into any other corporation unless the corporation resulting
from such consolidation or merger will have after such consolidation or
merger no class of shares either authorized or outstanding ranking prior
to or on a parity with the $2.00 Par Preferred Stock except the same
number of shares ranking prior to or on a parity with the $2.00 Par
Preferred Stock and having the same rights and preferences as the shares
of the Corporation authorized and outstanding immediately preceding such
consolidation or merger, and each holder of $2.00 Par Preferred Stock
immediately preceding such consolidation or merger shall receive the
same number of shares, with the same rights and preferences, of the
resulting corporation; or
(ii) The authorization of any shares ranking on a parity with the
$2.00 Par Preferred Stock or an increase in the authorized number of
shares of $2.00 Par Preferred Stock.
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<PAGE> 22
SECTION 4.7E--Preemptive Rights--The holders of $2.00 Par Preferred
Stock shall have no preemptive right to purchase or have offered to them for
purchase any shares or other securities of the Corporation, whether now or
hereafter authorized.
SECTION 4.8E--Prior or Parity Stock--Whenever reference is made to
shares "ranking prior to the $2.00 Par Preferred Stock" or "on a parity with
the $2.00 Par Preferred Stock", such reference shall mean and include all
shares of the Corporation in respect of which the rights of the holders thereof
as to the payment of dividends or as to distributions in the event of a
voluntary or involuntary liquidation, dissolution or winding up of the affairs
of the Corporation are given preference over, or rank on an equality with (as
the case may be), the rights of the holders of $2.00 Par Preferred Stock; and
whenever reference is made to shares "ranking junior to the $2.00 Par Preferred
Stock", such reference shall mean and include all shares of the Corporation in
respect of which the rights of the holders thereof as to the payment of
dividends and as to distributions in the event of a voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation are
junior and subordinate to the rights of the holders of $2.00 Par Preferred
Stock. The $2.00 Par Preferred Stock shall rank on a parity with the Preferred
Stock and the Preferred Stock ($1 par).
F. FAIR PRICE TO SHAREHOLDERS IN BUSINESS COMBINATIONS
SECTION 4.1F--The affirmative vote of the holders of not less than
eighty percent (80%) of the voting power of the Corporation shall be required
for the approval or authorization of any "Business Combination" (as hereinafter
defined); provided, however, that the eighty percent (80%) voting requirement
shall not be applicable, and the provisions of Ohio law and of these Articles
relating to the percentage of shareholder approval, if any, shall apply to any
such Business Combination if:
(a) The "Continuing Directors" of the Corporation (as hereinafter
defined) by a two-thirds (2/3) vote have expressly approved the Business
Combination either in advance of or subsequent to the acquisition of
outstanding shares of Common Stock of the Corporation that caused the
Related Person involved in the Business Combination to become a Related
Person; or
(b) If the following conditions are satisfied:
(i) The aggregate amount of the cash and the fair market
value of the property, securities or other consideration to be
received in the Business Combination by holders of the Common
Stock of the Corporation, other than the Related Person involved
in the Business Combination, is not less than the "Highest Per
Share Price" (with appropriate adjustments for recapitalizations,
reclassifications, stock splits, reverse stock splits and stock
dividends) paid by the Related Person in acquiring any of its
holdings of the Corporation's Common Stock, all as determined by
two-thirds (2/3) of the Continuing Directors; and
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<PAGE> 23
(ii) A proxy statement complying with the requirements of
the Securities Exchange Act of 1934, as amended, shall have been
mailed at least thirty (30) days prior to any vote on the
Business Combination, to all shareholders of the Corporation for
the purpose of soliciting shareholder approval of the Business
Combination. The proxy statement shall contain at the front
thereof, in a prominent place, the position of the Continuing
Directors as to the advisability (or inadvisability) of the
Business Combination and, if deemed appropriate by two-thirds
(2/3) of the Continuing Directors, the opinion of an investment
banking firm selected by two-thirds (2/3) of the Continuing
Directors as to the fairness of the terms of the Business
Combination, from the point of view of the holders of the
outstanding shares of capital stock of the Corporation other than
the Related Person involved in the Business Combination.
SECTION 4.2F--For purposes of this Section F of Article IV:
(a) The term "Business Combination" means (i) any merger, consolidation
or share exchange of the Corporation or any of its subsidiaries into or with a
Related Person, in each case irrespective of which corporation or company is
the surviving entity; (ii) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition to or with a Related Person (in a single
transaction or a series of related transactions) of all or a Substantial Part
(as hereinafter defined) of the assets of the Corporation (including without
limitation any securities of a subsidiary) or a Substantial Part of the assets
of any of its subsidiaries; (iii) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition to or with the Corporation or to or with any of
its subsidiaries (in a single transaction or series of related transactions) of
all or a Substantial Part of the assets of a Related Person; (iv) the issuance
or transfer of any securities of the Corporation or any of its subsidiaries by
the Corporation or any of its subsidiaries to a Related Person (other than an
issuance or transfer of securities which is effected on a pro rata basis to all
shareholders of the Corporation); (v) any reclassification of securities
(including any reverse stock split), recapitalization, or any other transaction
involving the Corporation or any of its subsidiaries, that would have the
effect of increasing the voting power of a Related Person; (vi) the adoption of
any plan or proposal for the liquidation or dissolution of the Corporation
proposed by or on behalf of a Related Person, and (vii) the entering into of
any agreement, contract or other arrangement providing for any of the
transactions described in this definition of Business Combination.
(b) The term "Related Person" shall mean any individual, corporation,
partnership or other person or entity other than the Corporation or any of its
subsidiaries which, as of the record date for the determination of shareholders
entitled to notice of and to vote on any Business Combination, or immediately
prior to the consummation of such transaction, together with its "Affiliates"
and "Associates" (as defined in Rule 12b-2 of the Regulations under the
Securities Exchange Act of 1934 as in effect at the date of the adoption of
this Section F of Article IV by the shareholders of the Corporation
(collectively and as so in effect, the "Exchange Act")), are "Beneficial
Owners" (as defined in Rule 13d-3
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<PAGE> 24
of the Exchange Act) in the aggregate of twenty percent (20%) or more of the
outstanding shares of Common Stock of the Corporation, and any Affiliate or
Associate of any such individual, corporation, partnership or other person or
entity. Notwithstanding the definition of "Beneficial Owners" in this
subparagraph (b), any Common Stock of the Corporation that any Related Person
has the right to acquire pursuant to any agreement, or upon exercise of
conversion rights, warrants or options, or otherwise, shall be deemed
beneficially owned by the Related Person.
(c) The term "Substantial Part" shall mean more than twenty percent
(20%) of the fair market value, as determined by two-thirds (2/3) of the
Continuing Directors, of the total consolidated assets of the Corporation and
its subsidiaries taken as a whole, as of the end of its most recent fiscal year
ending prior to the time the determination is being made.
(d) For the purposes of paragraph (b)(i) of Section 4.1F, in the event
of a Business Combination in which the Corporation is the surviving
corporation, the term "other consideration to be received" shall include,
without limitation, Common Stock or other capital stock of the Corporation
retained by shareholders of the Corporation other than Related Persons or
parties to such Business Combination.
(e) The term "Continuing Directors" shall mean a director who either (i)
was a member of the Board of Directors of the Corporation immediately prior to
the time that the Related Person involved in a Business Combination became a
Related Person, or (ii) was designated (before his or her initial election as
Director) as a Continuing Director by two-thirds of the then Continuing
Directors.
(f) A "Related Person" shall be deemed to have acquired a share of the
Common Stock of the Corporation at the time when such Related Person became the
Beneficial Owner thereof. With respect to the shares owned by Affiliates,
Associates or other persons whose ownership is attributed to a Related Person
under the foregoing definition of Related Person, the price paid for said
shares shall be deemed to be the higher of (i) the price paid upon the
acquisition thereof by the Affiliate, Associate or other person or (ii) the
market price of the shares in question at the time when the Related Person
became the Beneficial Owner thereof.
(g) The term "Highest Per Share Price" as used in this Section F shall
mean the highest price determined by two-thirds (2/3) of the Continuing
Directors to have been paid at any time by the Related Person for any share or
shares of Common Stock. In determining the Highest Per Share Price, all
purchases by the Related Person shall be taken into account regardless of
whether the shares were purchased before or after the Related Person became a
Related Person. The Highest Per Share Price shall include any brokerage
commissions, transfer taxes and soliciting dealers' fees paid by the Related
Person with respect to the shares of Common Stock of the Corporation acquired
by the Related Person.
SECTION 4.3F--Any amendment, change or repeal of this Article IV,
Section F, or any other amendment of these Articles of Incorporation which
would have the
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<PAGE> 25
effect of modifying or permitting circumvention of this Article IV, Section F,
shall require the favorable vote, at a meeting of the shareholders of the
Corporation, of the holders of at least eighty percent (80%) of the voting
power of the Corporation; provided, however, that this Section 4.3F shall not
apply to and such eighty percent (80%) vote shall not be required for, any such
amendment, change or repeal recommended to shareholders by two-thirds (2/3) of
the Continuing Directors and such amendment, change or repeal so recommended
shall require only the vote, if any, required under the applicable provisions
of the General Corporation Law of the State of Ohio and of these Articles. For
the purposes of this Section 4.3F only, if at the time when any such amendment,
change, or repeal is under consideration there is no proposed Business
Combination (in which event, the definition of Continuing Director in paragraph
(e) of Section 4.2F would be inapplicable), the "Continuing Directors" shall be
deemed to be those persons who are members of the Board of Directors of the
Corporation at the time when the amendment of-these Articles to add this
Section F was approved by the shareholders plus those persons who are
Continuing Directors under clause (ii) of paragraph (e) of Section 4.2F.
ARTICLE V
PURCHASE OF CORPORATION'S SHARES
The Corporation by action of its Board of Directors may purchase any
issued shares of the Corporation to the extent not prohibited by law.
ARTICLE VI
OPTIONS AND WARRANTS
The directors are authorized, from time to time, in their discretion, to
grant to such persons, for such periods and upon such terms as to the directors
may appear advisable, options to purchase such number of shares of any class or
classes or of any series of any class as the directors may deem advisable, and
to cause warrants or other appropriate instruments evidencing such options to
be issued.
ARTICLE VII
INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES
(a) The Corporation shall indemnify any director or officer or any
former director or officer of the Corporation or any person who is serving or
has served at the request of the Corporation as a director, officer, or trustee
of another corporation, joint venture, trust or other enterprise against
expenses, including attorneys' fees, judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him in connection with any
threatened, pending, or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, other than an action by or in the
right of the Corporation, to which he was, is, or is threatened to be made a
party by reason of the fact that he is or was such director, officer, or
trustee, provided it is determined in the manner set forth in paragraph (c) of
this Article that he acted
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in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation and that, with respect to any criminal
action or proceeding, he had no reasonable cause to believe his conduct was
unlawful.
(b) In the case of any threatened, pending or completed action or suit
by or in the right of the Corporation, the Corporation shall indemnify each
person indicated in paragraph (a) of this Article against expenses, including
attorneys' fees, actually and reasonably incurred in connection with the
defense or settlement thereof, provided it is determined in the manner set
forth in paragraph (c) of this Article that he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation except that no indemnification shall be made in respect of any
claim, issue, or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of his duty to the
Corporation unless and only to the extent that the court of common pleas or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability, but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses as the court of common pleas or such other court
shall deem proper.
(c) The determinations referred to in paragraphs (a) and (b) of this
Article shall be made (i) by a majority vote of a quorum consisting of
directors of the Corporation who were not and are not parties to or threatened
with any such action, suit or proceeding, or (ii) if such a quorum is not
obtainable or if a majority vote of a quorum of disinterested directors so
directs, in a written opinion by independent legal counsel other than an
attorney, or a firm having associated with it an attorney, who has been
retained by or who has performed services for the Corporation, or any person to
be indemnified, within the past five years, or (iii) by the shareholders, or
(iv) by the court of common pleas or the court in which such action, suit or
proceeding was brought.
(d) Expenses, including attorneys' fees, incurred in defending any
action, suit or proceeding referred to in paragraphs (a) and (b) of this
Article, may be paid by the Corporation in advance of the final disposition of
such action, suit, or proceeding as authorized by the directors in the specific
case upon receipt of an undertaking by or on behalf of the director, officer,
or trustee to repay such amount, unless it shall ultimately be determined that
he is entitled to be indemnified by the Corporation as authorized in this
Article.
(e) The indemnification provided by this Article shall not be deemed
exclusive (i) of any other rights to which those seeking indemnification may be
entitled under the articles, the regulations, any agreement, any insurance
purchased by the Corporation, vote of shareholders or disinterested directors,
or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, or of (ii) the power of the
Corporation to indemnify any person who is or was an employee or agent of the
Corporation or of another corporation, joint venture, trust or other enterprise
which he is serving or has served at the request of the Corporation, to the
same extent and in the same situations and subject to the same determinations
as are hereinabove set forth with respect to a director, officer, or trustee.
As used
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in this paragraph (e), references to the "Corporation" include all constituent
corporations in a consolidation or merger in which the Corporation or a
predecessor to the Corporation by consolidation or merger was involved. The
indemnification provided by this Article shall continue as to a person who has
ceased to be a director, officer, or trustee and shall inure to the benefit of
the heirs, executors, and administrators of such a person.
ARTICLE VIII
ELIMINATION OF CUMULATIVE VOTING
No shareholder of this Corporation may cumulate his voting power.
These Twenty-Seventh Amended Articles of Incorporation shall supersede
and take the place of the theretofore existing Articles of Incorporation and
amendments thereto.
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<PAGE> 1
Exhibit 4.1
- --------------------------------------------------------------------------------
COOPER INDUSTRIES, INC.
and
FIRST CHICAGO TRUST COMPANY OF NEW YORK
Rights Agent
------------------
Rights Agreement
Dated as of August 5, 1997
- --------------------------------------------------------------------------------
<PAGE> 2
Table of Contents
<TABLE>
<CAPTION>
Section Page
- ------- ----
<S><C> <C>
1. Certain Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Appointment of Rights Agent . . . . . . . . . . . . . . . . . . . . . . 5
3. Issue of Rights Certificates . . . . . . . . . . . . . . . . . . . . . 5
4. Form of Rights Certificates . . . . . . . . . . . . . . . . . . . . . . 7
5. Countersignature and Registration . . . . . . . . . . . . . . . . . . . 8
6. Transfer, Split Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen Rights
Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
7. Exercise of Rights; Purchase Price; Expiration Date of Rights . . . . . 10
8. Cancellation and Destruction of Rights Certificates . . . . . . . . . . 12
9. Reservation and Availability of Capital Stock . . . . . . . . . . . . . 12
10. Preferred Stock Record Date . . . . . . . . . . . . . . . . . . . . . 14
11. Adjustment of Purchase Price, Number and Kind of Shares or Number
of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
12. Certificate of Adjusted Purchase Price or Number of Shares . . . . . . 25
13. Consolidation, Merger or Sale or Transfer of Assets or Earning
Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
14. Fractional Rights and Fractional Shares . . . . . . . . . . . . . . . 28
15. Rights of Action . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
16. Agreement of Rights Holders . . . . . . . . . . . . . . . . . . . . . 30
17. Rights Certificate Holder Not Deemed a Shareholder . . . . . . . . . . 31
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
18. Concerning the Rights Agent . . . . . . . . . . . . . . . . . . . . . 31
19. Merger or Consolidation or Change of Name of Rights Agent . . . . . . 32
20. Duties of Rights Agent . . . . . . . . . . . . . . . . . . . . . . . . 33
21. Change of Rights Agent . . . . . . . . . . . . . . . . . . . . . . . . 35
22. Issuance of New Rights Certificates . . . . . . . . . . . . . . . . . 36
23. Redemption and Termination. . . . . . . . . . . . . . . . . . . . . . 37
24. Notice of Certain Events . . . . . . . . . . . . . . . . . . . . . . . 37
25. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
26. Supplements and Amendments . . . . . . . . . . . . . . . . . . . . . . 39
27. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
28. Determinations and Actions by the Board of Directors, etc . . . . . . 40
29. Benefits of this Agreement . . . . . . . . . . . . . . . . . . . . . . 41
30. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
31. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
32. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
33. Descriptive Headings . . . . . . . . . . . . . . . . . . . . . . . . . 42
Exhibit A -- Certificate of Amendment . . . . . . . . . . . . . . . . . A-1
Exhibit B -- Form of Rights Certificate . . . . . . . . . . . . . . . . B-1
Exhibit C -- Form of Summary of Rights . . . . . . . . . . . . . . . C-1
</TABLE>
ii
<PAGE> 4
RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of August 5, 1997 (the
"Agreement"), between Cooper Industries, Inc., an Ohio corporation (the
"Company"), and First Chicago Trust Company of New York, a New York trust
company (the "Rights Agent").
W I T N E S S E T H
WHEREAS, on August 5, 1997 (the "Rights Dividend Declaration
Date"), the Board of Directors of the Company pursuant to Section 1701.16 of
the Ohio Revised Code authorized and declared a dividend distribution of one
Right for each share of Common Stock (as hereinafter defined) of the Company
outstanding at the close of business on August 15, 1997 (the "Record Date"),
and authorized the issuance of one Right (as such number may hereafter be
adjusted pursuant to the provisions of Section 11(p) hereof) for each share of
Common Stock of the Company issued between the Record Date (whether originally
issued or delivered from the Company's treasury) and the Distribution Date (as
hereinafter defined), each Right initially representing the right to purchase
one one-hundredth of a share of Series A Participating Preferred Stock, no par
value, of the Company, having the rights, powers and preferences set forth in
the form of Certificate of Amendment to the Twenty-Sixth Amended Articles of
Incorporation of the Company attached hereto as Exhibit A, upon the terms and
subject to the conditions hereinafter set forth (the "Rights");
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who
or which, together with all Affiliates and Associates of such Person, shall be
the Beneficial Owner of 15% or more of the shares of Common Stock then
outstanding, but shall not include the Company, any Subsidiary of the Company,
any employee benefit plan of the Company or of any Subsidiary of the Company,
or any Person or entity organized, appointed or established by the Company for
or pursuant to the
<PAGE> 5
terms of any such plan, or any Person who becomes an Acquiring Person solely as
a result of a reduction in the number of shares of Common Stock outstanding due
to the repurchase of shares of Common Stock by the Company, unless and until
such Person shall purchase or otherwise become the Beneficial Owner of
additional shares of Common Stock constituting 1% or more of the then
outstanding shares of Common Stock.
(b) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as amended and in
effect on the date of this Agreement (the "Exchange Act").
(c) A Person shall be deemed the "Beneficial
Owner" of, and shall be deemed to "beneficially own," any securities:
(i) which such Person or any of such
Person's Affiliates or Associates, directly or indirectly, has the
right to acquire (whether such right is exercisable immediately or
only after the passage of time) pursuant to any agreement, arrangement
or understanding (whether or not in writing) or upon the exercise of
conversion rights, exchange rights, rights, warrants or options, or
otherwise; provided, however, that a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially own," (A) securities
tendered pursuant to a tender or exchange offer made by such Person or
any of such Person's Affiliates or Associates until such tendered
securities are accepted for purchase or exchange, or (B) securities
issuable upon exercise of Rights at any time prior to the occurrence
of a Triggering Event, or (C) securities issuable upon exercise of
Rights from and after the occurrence of a Triggering Event which
Rights were acquired by such Person or any of such Person's Affiliates
or Associates prior to the Distribution Date or 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
2
<PAGE> 6
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 (c)) or disposing of any voting
securities of the Company; provided, however, that nothing in this
paragraph (c) shall cause a Person engaged in the business as an
underwriter of securities to be deemed 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.
(d) "Business Day" shall mean any day other than
a Saturday, Sunday or a day on which banking institutions in the State of Texas
are authorized or obligated by law or executive order to close.
(e) "Close of business" on any given date shall
mean 5:00 P.M., Houston, Texas time, on such date; provided, however, that if
such date is not a Business Day it shall mean 5:00 P.M., Houston, Texas time,
on the next succeeding Business Day.
(f) "Common Stock" shall mean the common stock,
par value $5.00 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 of such Person with the greatest voting power, or the equity securities
or other equity interest having power to control or direct the management, of
such Person.
3
<PAGE> 7
(g) "Continuing Director" shall mean (i) any
member of the Board of Directors of the Company, while such Person is a member
of the Board, who is not an Acquiring Person, or an Affiliate or Associate of
an Acquiring Person, or a representative of an Acquiring Person or of any such
Affiliate or Associate, and was a member of the Board prior to the date of this
Agreement, or (ii) any Person who subsequently becomes a member of the Board,
while such Person is a member of the Board, who is not an Acquiring Person, or
an Affiliate or Associate of an Acquiring Person, or a representative of an
Acquiring Person or of any such Affiliate or Associate, if such Person's
nomination for election or election to the Board is recommended or approved by
a majority of the Continuing Directors.
(h) "Person" shall mean any individual, firm,
corporation, partnership or other entity.
(i) "Preferred Stock" shall mean shares of Series
A Participating Preferred Stock, no par value, of the Company and, to the
extent that there are not a sufficient number of shares of Series A
Participating 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 Series A
Participating Preferred Stock.
(j) "Section 11(a)(ii) Event" shall mean the
event described in Section 11(a)(ii) 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, a report filed pursuant to Section 13(d) under the
Exchange Act) by the Company or an Acquiring Person that an Acquiring Person
has become such.
(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) "Trading Day" shall have the meaning set
forth in Section 11(d)(i) hereof.
4
<PAGE> 8
(o) "Triggering Event" shall mean the Section
11(a)(ii) Event or any Section 13 Event.
Section 2. Appointment of Rights Agent. The Company hereby
appoints the Rights Agent to act as agent for the Company and the holders of
the Rights (who, in accordance with Section 3 hereof, shall prior to the
Distribution Date also be the holders of the Common Stock) in accordance with
the terms and conditions hereof, and the Rights Agent hereby accepts such
appointment. The Company may from time to time appoint such Co-Rights Agents
as it may deem necessary or desirable.
Section 3. Issue of Rights Certificates.
(a) Until the earlier of (i) the close of
business on the tenth Business Day after the Stock Acquisition Date (or, if the
tenth Business Day after the Stock Acquisition Date occurs before the Record
Date, the close of business on the Record Date), or (ii) the close of business
on the tenth Business Day (or such later date as the Board of Directors shall
determine) after the date that a tender or exchange offer by any Person (other
than the Company, any Subsidiary of the Company, any employee benefit plan of
the Company or of any Subsidiary of the Company, or any Person or entity
organized, appointed or established by the Company for or pursuant to the terms
of any such plan) is first published or sent or given within the meaning of
Rule 14d-2(a) of the General Rules and Regulations under the Exchange Act, if
upon consummation thereof, such Person would be the Beneficial Owner of 15% or
more of the shares of Common Stock then outstanding (the earlier of (i) and
(ii) being herein referred to as the "Distribution Date"), (x) the Rights will
be evidenced (subject to the provisions of paragraph (c) of this Section 3) by
the certificates for the Common Stock registered in the names of the holders of
the Common Stock (which certificates for Common Stock shall be deemed also to
be certificates for Rights) and not by separate certificates, and (y) the
Rights will be transferable only in connection with the transfer of the
underlying shares of Common Stock (including a transfer to the Company). As
soon as practicable after the Distribution Date, the Rights Agent will send by
first-class, insured, postage-prepaid mail, to each record holder of the
Common Stock as of the close of business on the Distribution Date, at the
address of such holder shown on the records of the Company, one or more right
certificates, in substantially the form of Exhibit B hereto (the "Rights
Certificates"), evidencing one Right for each share of 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 Rights Certifi-
5
<PAGE> 9
cates, 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) The Company will send a copy of a Summary of
Rights to Purchase Preferred Stock, in substantially the form of Exhibit C
hereto (the "Summary of Rights"), by first-class, postage-prepaid mail, to each
record holder of shares of 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.
(c) Rights shall be issued in respect of all
shares of Common Stock which are issued after the Record Date but prior to the
earlier of the Distribution Date or the Expiration Date. Certificates
representing such shares of Common Stock shall also be deemed to be
certificates for Rights and shall bear the following legend:
This certificate also evidences and entitles the holder hereof
to certain Rights as set forth in the Rights Agreement, dated as of
August 5, 1997 (the "Rights Agreement"), between Cooper Industries,
Inc. and First Chicago Trust Company of New York, as Rights Agent, the
terms of which are hereby incorporated herein by reference and a copy
of which is on file at the principal offices of Cooper Industries,
Inc. Under certain circumstances, as set forth in the Rights
Agreement, such Rights will be evidenced by separate certificates and
will no longer be evidenced by this certificate. Cooper Industries,
Inc. will mail to the holder of this certificate a copy of the Rights
Agreement, as in effect on the date of mailing, without charge
promptly after receipt of a written request therefor. Under certain
circumstances set forth in the Rights Agreement, Rights issued to, or
held by, any Person who is, was or becomes an Acquiring Person or any
Affiliate or Associate thereof (as such terms are defined in the
Rights Agreement), whether currently held by or on behalf of such
Person or by any subsequent holder, may become null and void.
With respect to such certificates containing the foregoing legend, until the
earlier of (i) the Distribution Date or (ii) the Expiration Date, the Rights
associated with the Common Stock represented by such certificates shall be
evidenced by such certificates alone and registered holders of Common Stock
shall also be the
6
<PAGE> 10
registered holders of the associated Rights, and the transfer of any of such
certificates shall also constitute the transfer of the Rights associated with
the Common Stock represented by such certificates.
Section 4. Form of Rights Certificates.
(a) The Rights Certificates (and the forms of
election to purchase and of assignment to be printed on the reverse thereof)
shall each be substantially in the form set forth in Exhibit B hereto and may
have such marks of identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Agreement, or as may be required to
comply with any applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Rights may from time to time be listed, or to conform to usage. Subject to the
provisions of Section 11 and Section 22 hereof, the Rights Certificates,
whenever distributed, shall be dated as of the Record Date and on their face
shall entitle the holders thereof to purchase such number of one one-hundredths
of a share of Preferred Stock as shall be set forth therein at the price set
forth therein (such exercise price per one one-hundredth of a share, the
"Purchase Price"), but the amount and type of securities purchasable upon the
exercise of each Right and the Purchase Price thereof shall be subject to
adjustment as provided herein.
(b) Any Rights Certificate issued pursuant to
Section 3(a) or Section 22 hereof that represents Rights beneficially owned by:
(i) an Acquiring Person or any Associate or Affiliate of an Acquiring Person,
(ii) a transferee of an Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee after the Acquiring Person becomes such, or
(iii) a transferee of an Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee prior to or concurrently with the Acquiring
Person becoming such and receives such Rights pursuant to either (A) a transfer
(whether or not for consideration) from the Acquiring Person to holders of
equity interests in such Acquiring Person or to any Person with whom such
Acquiring Person has any continuing agreement, arrangement or understanding
regarding the transferred Rights or (B) a transfer which the Board of Directors
of the Company has determined is part of a plan, arrangement or understanding
which has as a primary purpose or effect avoidance of Section 7(e) hereof, and
any Rights Certificate issued pursuant to Section 6 or Section 11 hereof upon
transfer, exchange, replacement or adjustment of any other Rights Certificate
referred to in this sentence, shall contain (to the extent feasible) the
following legend:
7
<PAGE> 11
The Rights represented by this Rights Certificate are or were
beneficially owned by a Person who was or became an Acquiring Person
or an Affiliate or Associate of an Acquiring Person (as such terms are
defined in the Rights Agreement). Accordingly, this Rights
Certificate and the Rights represented hereby may become null and void
in the circumstances specified in Section 7(e) of such Agreement.
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 by the
Rights Agent, either manually or by facsimile signature, and shall not be valid
for any purpose unless so countersigned. In case any officer of the Company
who shall have signed any of the Rights Certificates shall cease to be such
officer of the Company before countersignature by the Rights Agent and issuance
and delivery by the Company, such Rights Certificates, nevertheless, may be
countersigned by the Rights Agent and issued and delivered by the Company with
the same force and effect as though the person who signed such Rights
Certificates had not ceased to be such officer of the Company; and any Rights
Certificates may be signed on behalf of the Company by any person who, at the
actual date of 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 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.
8
<PAGE> 12
(a) Subject to the provisions of Section 4(b),
Section 7(e) and Section 14 hereof, at any time after the close of business on
the Distribution Date, and at or prior to the close of business on the
Expiration Date, any Rights Certificate or Certificates may be transferred,
split up, combined or exchanged for another Rights Certificate or Certificates,
entitling the registered holder to purchase a like number of one one-hundredths
of a share of Preferred Stock (or, following a Triggering Event, Common Stock,
other securities, cash or other assets, as the case may be) as the Rights
Certificate or Certificates surrendered then entitled such holder (or former
holder in the case of a transfer) to purchase. Any registered holder desiring
to transfer, split up, combine or exchange any Rights Certificate or
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.
9
<PAGE> 13
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 one one-hundredths of a share of Preferred Stock (or other
securities, cash or other assets, as the case may be) as to which such
surrendered Rights are then exercisable, at or prior to the earlier of (i) the
close of business on August 5, 2007 (the "Final Expiration Date"), or (ii) the
time at which the Rights are redeemed as provided in Section 23 hereof (the
earlier of (i) and (ii) being herein referred to as the "Expiration Date").
(b) The Purchase Price for each one one-hundredth
of a share of Preferred Stock pursuant to the exercise of a Right shall
initially be $225, and shall be subject to adjustment from time to time as
provided in Sections 11 and 13(a) hereof and shall be payable in accordance
with paragraph (c) below.
(c) Upon receipt of a Rights Certificate
representing exercisable Rights, with the form of election to purchase and the
certificate duly executed, accompanied by payment, with respect to each Right
so exercised, of the Purchase Price per one one-hundredth of a share of
Preferred Stock (or other securities, cash or other assets, as the case may be)
to be purchased as set forth below and an amount equal to any applicable
transfer tax, the Rights Agent shall, subject to Section 20(k) hereof,
thereupon promptly (i) (A) requisition from any transfer agent of the shares of
Preferred Stock (or make available, if the Rights Agent is the transfer agent
for such shares) certificates for the total number of one one-hundredths of a
share of Preferred Stock to be purchased and the Company hereby irrevocably
authorizes its transfer agent to comply with all such requests, or (B) if the
Company shall have elected to deposit the total number of shares of Preferred
Stock issuable upon exercise of the Rights hereunder with a depositary agent,
requisition from the depositary agent depositary receipts representing such
number of one one-hundredths of a share of Preferred Stock as are to be
purchased (in which case certificates for the shares of Preferred Stock
represented by such receipts shall be deposited by the transfer agent with the
depositary agent) and the Company will direct the depositary agent to comply
with such request, (ii) requisition from the Company the amount of cash, if
any, to be paid in lieu of
10
<PAGE> 14
fractional shares in accordance with Section 14 hereof, (iii) after receipt of
such certificates or depositary receipts, cause the same to be delivered to, or
upon the order of, the registered holder of such Rights Certificate, registered
in such name or names as may be designated by such holder, and (iv) after
receipt thereof, deliver such cash, if any, to, or upon the order of, the
registered holder of such Rights Certificate. The payment of the Purchase
Price (as such amount may be reduced pursuant to Section 11(a)(iii) hereof) may
be made (x) in cash or by certified bank check or bank draft payable to the
order of the Company, or (y) by delivery of a certificate or certificates (with
appropriate stock powers executed in blank attached thereto) evidencing a
number of shares of Common Stock equal to the then Purchase Price divided by
the closing price (as determined pursuant to Section 11(d) hereof) per share of
Common Stock on the Trading Day immediately preceding the date of such
exercise. 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) hereof, the Company will make all
arrangements necessary so that such other securities, cash and/or other
property are available for distribution by the Rights Agent, if and when
appropriate. The Company reserves the right to require prior to the occurrence
of a Triggering Event that, upon any exercise of Rights, a number of Rights be
exercised so that only whole shares of Preferred Stock would be issued.
(d) In case the registered holder of any Rights
Certificate shall exercise less than all the Rights evidenced thereby, a new
Rights Certificate evidencing Rights equivalent to the Rights remaining
unexercised shall be issued by the Rights Agent and delivered to, or upon the
order of, the registered holder of such Rights Certificate, registered in such
name or names as may be designated by such holder, subject to the provisions of
Section 14 hereof.
(e) Notwithstanding anything in this Agreement to
the contrary, from and after the occurrence of the Section 11(a)(ii) Event, any
Rights beneficially owned by (i) an Acquiring Person or an Associate or
Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or
of any such Associate or Affiliate) who becomes a transferee after the
Acquiring Person becomes such, or (iii) a transferee of an Acquiring Person (or
of any such Associate or Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person becoming such and receives such Rights
pursuant to either (A) a transfer (whether or not for consideration) from the
Acquiring Person to holders of equity interests in such Acquiring Person or to
any Person with whom the Acquiring Person has any continuing agreement,
arrangement or understanding regarding the transferred Rights or (B) a transfer
which the Board of Directors of the Company has determined is
11
<PAGE> 15
part of a plan, arrangement or understanding which has as a primary purpose or
effect the avoidance of this Section 7(e), shall become null and void without
any further action, and no holder of such Rights shall have any rights
whatsoever with respect to such Rights, whether under any provision of this
Agreement or otherwise. The Company shall use all reasonable efforts to insure
that the provisions of this Section 7(e) and Section 4(b) hereof are complied
with, but shall have no liability to any holder of Rights Certificates or other
Person as a result of its failure to make any determinations with respect to an
Acquiring Person or its Affiliates, Associates or transferees hereunder.
(f) Notwithstanding anything in this Agreement to
the contrary, neither the Rights Agent nor the Company shall be obligated to
undertake any action with respect to a registered holder upon the occurrence of
any purported exercise as set forth in this Section 7 unless such registered
holder shall have (i) completed and signed the certificate contained in the
form of election to purchase set forth on the reverse side of the Rights
Certificate surrendered for such exercise, and (ii) provided such additional
evidence of the identity of the Beneficial Owner (or former Beneficial Owner)
or Affiliates or Associates thereof as the Company shall reasonably request.
Section 8. Cancellation and Destruction of Rights
Certificates. All Rights Certificates surrendered for the purpose of exercise,
transfer, split up, combination or exchange shall, if surrendered to the
Company or any of its agents, be delivered to the Rights Agent for cancellation
or in 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 Common Stock and/or other
securities or out of its authorized and
12
<PAGE> 16
issued shares held in its treasury), the number of shares of Preferred Stock
(and, following the occurrence of a Triggering Event, Common Stock and/or other
securities) that, as provided in this Agreement including Section 11(a)(iii)
hereof, will be sufficient to permit the exercise in full of all outstanding
Rights.
(b) So long as the shares of Preferred Stock
(and, following the occurrence of a Triggering Event, Common Stock and/or other
securities) issuable and deliverable upon the exercise of the Rights may be
listed on any national securities exchange, the Company shall use its best
efforts to cause, from and after such time as the Rights become exercisable,
all shares reserved for such issuance to be listed on such exchange upon
official notice of issuance upon such exercise.
(c) The Company shall use its best efforts (i) to
file, as soon as practicable following the earliest date after the occurrence
of the 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) to cause such
registration statement to become effective as soon as practicable after such
filing, and (iii) to cause such registration statement to remain effective
(with a prospectus at all times meeting the requirements of the Act) until the
earlier of (A) the date as of which the Rights are no longer exercisable for
such securities, and (B) the date of the expiration of the Rights. The Company
will also take such action as may be appropriate under, or to ensure compliance
with, the securities or "blue sky" laws of the various states in connection
with the exercisability of the Rights. The Company may temporarily suspend,
for a period of time not to exceed ninety (90) days after the date set forth in
clause (i) of the first sentence of this Section 9(c), the exercisability of
the Rights in order to prepare and file such registration statement and permit
it to become effective. Upon any such suspension, the Company shall issue a
public announcement stating that the exercisability of the Rights has been
temporarily suspended, as well as a public announcement at such time as the
suspension is no longer in effect. 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.
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<PAGE> 17
(d) The Company covenants and agrees that it will
take all such action as may be necessary to ensure that all one one-hundredths
of a share of Preferred Stock (and, following the occurrence of a Triggering
Event, Common Stock and/or other securities) delivered upon exercise of Rights
shall, at the time of delivery of the certificates for such shares (subject to
payment of the Purchase Price), be duly and validly authorized and issued and
fully paid and nonassessable.
(e) The Company further covenants and agrees that
it will pay when due and payable any and all federal and state transfer taxes
and charges which may be payable in respect of the issuance or delivery of the
Rights Certificates and of any certificates for a number of one one-hundredths
of a share of Preferred Stock (or Common Stock and/or other securities, as the
case may be) upon the exercise of Rights. The Company shall not, however, be
required to pay any transfer tax which may be payable in respect of any
transfer or delivery of Rights Certificates to a Person other than, or the
issuance or delivery of a number of one one-hundredths of a share of Preferred
Stock (or Common Stock and/or other securities, as the case may be) in respect
of a name other than that of, the registered holder of the Rights Certificates
evidencing Rights surrendered for exercise or to issue or deliver any
certificates for a number of one one-hundredths of a share of Preferred Stock
(or Common Stock and/or other securities, as the case may be) in a name other
than that of the registered holder upon the exercise of any Rights until such
tax shall have been paid (any such tax being payable by the holder of such
Rights Certificate at the time of surrender) or until it has been established
to the Company's satisfaction that no such tax is due.
Section 10. Preferred Stock Record Date. Each person in
whose name any certificate for a number of one one-hundredths of a share of
Preferred Stock (or Common Stock and/or other securities, as the case may be)
is issued upon the exercise of Rights shall for all purposes be deemed to have
become the holder of record of such fractional shares of Preferred Stock (or
Common Stock and/or other securities, as the case may be) represented thereby
on, and such certificate shall be dated, the date upon which the Rights
Certificate evidencing such Rights was duly surrendered and payment of the
Purchase Price (and all applicable transfer taxes) was made; provided, however,
that if the date of such surrender and payment is a date upon which the
Preferred Stock (or Common Stock and/or other securities, as the case may be)
transfer books of the Company are closed, such Person shall be deemed to have
become the record holder of such shares (fractional or otherwise) on, and such
certificate shall be dated, the next succeeding Business Day on which the
Preferred Stock (or Common Stock and/or other securities, as the case may be)
transfer books of the Company are open. Prior to the exercise of the Rights
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<PAGE> 18
evidenced thereby, the holder of a Rights Certificate shall not be entitled to
any rights of a shareholder of the Company with respect to shares for which the
Rights shall be exercisable, including, without limitation, the right to vote,
to receive dividends or other distributions or to exercise any preemptive
rights, and shall not be entitled to receive any notice of any proceedings of
the Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number and Kind of
Shares or Number of Rights. The Purchase Price, the number and kind of shares
covered by each Right and the number of Rights outstanding are subject to
adjustment from time to time as provided in this Section 11.
(a)(i) In the event the Company shall at any time
after the date of this Agreement (A) declare a dividend on the
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 capital stock, as the case may be, issuable on such
date, shall be proportionately adjusted so that the holder of any
Right exercised after such time shall be entitled to receive, upon
payment of the Purchase Price then in effect, the aggregate number and
kind of shares of Preferred Stock or capital stock, as the case may
be, which, if such Right had been exercised immediately prior to such
date and at a time when the Preferred Stock transfer books of the
Company were open, he would have owned upon such exercise and been
entitled to receive by virtue of such dividend, subdivision,
combination or reclassification. If an event occurs which would
require an adjustment under both this Section 11(a)(i) and Section
11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i)
shall be in addition to, and shall be made prior to, any adjustment
required pursuant to Section 11(a)(ii) hereof.
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<PAGE> 19
(ii) In the event any Person becomes an Acquiring
Person, unless the event causing the 15% 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
tender offer or an exchange offer for all outstanding shares
of Common Stock at a price and on terms determined by at least
two-thirds (2/3) of the Continuing Directors, to be in the
best interests of the Company and its shareholders (a
"Qualifying Offer"), then, promptly following the occurrence
of such event, proper provision shall be made so that each
holder of a Right (except as provided below and in Section
7(e) hereof) shall thereafter have the right to receive, upon
exercise thereof at the then current Purchase Price in
accordance with the terms of this Agreement, in lieu of a
number of one one-hundredths of a share of Preferred Stock,
such number of shares of Common Stock of the Company as shall
equal the result obtained by (x) multiplying the then current
Purchase Price by the then number of one one-hundredths of a
share of Preferred Stock for which a Right was exercisable
immediately prior to the occurrence of the Section 11(a)(ii)
Event, and (y) dividing that product (which, following such
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 occurrence (such number of shares, the "Adjustment
Shares").
(iii) In the event that the number of shares of
Common Stock which are authorized by the Company's Articles of
Incorporation but not outstanding or reserved for issuance for
purposes other than upon exercise of the Rights are not
sufficient to permit the exercise in full of the Rights in
accordance with the foregoing subparagraph (ii) of this
Section 11(a), the Company shall: (A) determine the 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 (subject to Section 7(e) hereof), make
adequate provision to substitute for the Adjustment Shares,
upon the exercise of such Right and payment of the applicable
Purchase Price, (1) cash, (2) a reduction in the Purchase
Price, (3) Common Stock or other equity securities of the
Company (including, without limitation, shares or units of
shares, of preferred stock which the Board of Directors of
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<PAGE> 20
the Company has deemed to have the same value as shares of
Common Stock (such shares of preferred stock, "common stock
equivalents")), (4) debt securities of the Company, (5) other
assets, or (6) any combination of the foregoing, having an
aggregate value equal to the Current Value, where such
aggregate value has been determined by the Board of Directors
of the Company based upon the advice of a nationally
recognized investment banking firm selected by the Board of
Directors of the Company; 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 occurrence of the 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 Common Stock (to the
extent available) and then, if necessary, cash, which shares
and/or cash have an aggregate value equal to the Spread. If
the Board of Directors of the Company shall determine in good
faith that it is likely that sufficient additional shares of
Common Stock could be authorized for issuance upon exercise in
full of the Rights, the 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 each Adjustment Share shall
be the current market price (as determined pursuant to Section
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<PAGE> 21
11(d) hereof) per share of the Common Stock on the Section
11(a)(ii) Trigger Date and the per share or per unit value of
any "common stock equivalent" shall be deemed to be equal to
the current market price (as determined pursuant to Section
11(d) hereof) of 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 ("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 which the aggregate offering price of the total number of
shares of Preferred Stock and/or equivalent preferred stock so to be offered
(and/or the aggregate initial conversion price of the convertible securities so
to be offered) would purchase at such current market price, and the denominator
of which shall be the number of shares of Preferred Stock outstanding on such
record date, plus the number of additional shares of Preferred Stock and/or
equivalent preferred stock to be offered for subscription or purchase (or into
which the convertible securities so to be offered are initially convertible).
In case such subscription price may be paid by delivery of consideration part
or all of which may be in a form other than cash, the value of such
consideration shall be as determined in good faith by the Board of Directors of
the Company, whose determination shall be described in a statement filed with
the Rights Agent and shall be binding on the Rights Agent and the holders of
the Rights. Shares of Preferred Stock owned by or held for the account of the
Company shall not be deemed outstanding for the purpose of any such
computation. Such adjustment shall be made successively whenever such a record
date is fixed, and in the event that such rights or warrants are not so issued,
the Purchase Price shall be adjusted to be the Purchase Price which would then
be in effect if such record date had not been fixed.
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<PAGE> 22
(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 the Board of Directors of the Company, whose determination
shall be described in a statement filed with the Rights Agent) of the portion
of the cash, assets or evidences of indebtedness so to be distributed or of
such subscription rights or warrants applicable to a share of Preferred Stock
and the denominator of which shall be such current market price (as determined
pursuant to Section 11(d) hereof) per share of Preferred Stock. Such
adjustments shall be made successively whenever such a record date is fixed,
and in the event that such distribution is not so made, the Purchase Price
shall be adjusted to be the Purchase Price which would have been in effect if
such record date had not been fixed.
(d)(i) For the purpose of any computation hereunder,
other than computations made pursuant to Section 11(a)(iii) hereof,
the "current market price" per share of 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
such term is hereinafter defined) immediately prior to such date, and
for purposes of computations made pursuant to Section 11(a)(iii)
hereof, the "current market price" per 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
the ex-dividend date for such dividend or
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<PAGE> 23
distribution or the record date for such subdivision, combination or
reclassification shall not have occurred prior to the commencement of
the requisite thirty (30) Trading Day or ten (10) Trading Day period,
as set forth above, then, and in each such case, the "current market
price" shall be properly adjusted to take into account ex-dividend
trading. The closing price for each day shall be the last sale price,
regular way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in either
case as reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading on the
New York Stock Exchange or, if the shares of Common Stock are not
listed or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting system
with respect to securities listed on the principal national securities
exchange on which the shares of 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 selected
by the Board of Directors of the Company. 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 the Board of
Directors of the Company 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 Board of
Directors of the Company, whose determination shall be described in a
statement filed with the Rights Agent and shall be conclusive for all
purposes.
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<PAGE> 24
(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 the Board of Directors of the Company,
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 one
one-hundredth of a share of Preferred Stock 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 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
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<PAGE> 25
and the Purchase Price thereof shall be subject to adjustment from time to time
in a manner and on terms as nearly equivalent as practicable to the provisions
with respect to the Preferred Stock contained in Sections 11(a), (b), (c), (e),
(g), (h), (i), (j), (k) and (m), and the provisions of Sections 7, 9, 10, 13
and 14 hereof with respect to the Preferred Stock shall apply on like terms to
any such other shares.
(g) All Rights originally issued by the Company
subsequent to any adjustment made to the Purchase Price hereunder shall
evidence the right to purchase, at the adjusted Purchase Price, the number of
one one-hundredths of a share of Preferred Stock purchasable from time to time
hereunder upon exercise of the Rights, all subject to further adjustment as
provided herein.
(h) Unless the Company shall have exercised its
election as provided in Section 11(i), upon each adjustment of the Purchase
Price as a result of the calculations made in Sections 11(b) and (c), each
Right outstanding immediately prior to the making of such adjustment shall
thereafter evidence the right to purchase, at the adjusted Purchase Price, that
number of one one-hundredths of a share of Preferred Stock (calculated to the
nearest one-millionth) obtained by (i) multiplying (x) the number of one one-
hundredths of a share covered by a Right immediately prior to this adjustment,
by (y) the Purchase Price in effect immediately prior to such adjustment of the
Purchase Price, and (ii) dividing the product so obtained by the Purchase Price
in effect immediately after such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of
any adjustment of the Purchase Price to adjust the number of Rights, in lieu of
any adjustment in the number of one one-hundredths of a share of Preferred
Stock purchasable upon the exercise of a Right. Each of the Rights outstanding
after the adjustment in the number of Rights shall be exercisable for the
number of one one-hundredths of a share of Preferred Stock for which a Right
was exercisable immediately prior to such adjustment. Each Right held of
record prior to such adjustment of the number of Rights shall become that
number of Rights (calculated to the nearest one ten-thousandth) obtained by
dividing the Purchase Price in effect immediately prior to adjustment of the
Purchase Price by the Purchase Price in effect immediately after adjustment of
the Purchase Price. The 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.
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<PAGE> 26
If Rights Certificates have been issued, upon each adjustment of the number of
Rights pursuant to this Section 11(i), the Company shall, as promptly as
practicable, cause to be distributed to holders of record of Rights
Certificates on such record date Rights Certificates evidencing, subject to
Section 14 hereof, the additional Rights to which such holders shall be
entitled as a result of such adjustment, or, at the option of the Company,
shall cause to be distributed to such holders of record in substitution and
replacement for the Rights Certificates held by such holders prior to the date
of adjustment, and upon surrender thereof, if required by the Company, new
Rights Certificates evidencing all the Rights to which such holders shall be
entitled after such adjustment. Rights Certificates so to be distributed shall
be issued, executed and countersigned in the manner provided for herein (and
may bear, at the option of the Company, the adjusted Purchase Price) and shall
be registered in the names of the holders of record of Rights Certificates on
the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in
the Purchase Price or the number of one one-hundredths of a share of Preferred
Stock issuable upon the exercise of the Rights, the Rights Certificates
theretofore and thereafter issued may continue to express the Purchase Price
per one one-hundredth of a share and the number of one one-hundredths of a
share which were expressed in the initial Rights Certificates issued hereunder.
(k) Before taking any action that would cause an
adjustment reducing the Purchase Price below the then stated value, if any, of
the number of one one-hundredths of a share of Preferred Stock issuable upon
exercise of the Rights, the Company shall take any corporate action which may,
in the opinion of its counsel, be necessary in order that the Company may
validly and legally issue fully paid and nonassessable such number of one one-
hundredths of a share of Preferred Stock at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall
require that an adjustment in the Purchase Price be made effective as of a
record date for a specified event, the Company may elect to defer until the
occurrence of such event the issuance to the holder of any Right exercised
after such record date the number of one one-hundredths of a share of Preferred
Stock and other capital stock or securities of the Company, if any, issuable
upon such exercise over and above the number of one one-hundredths of a share
of Preferred Stock and other capital stock or securities of the Company, if
any, issuable upon such exercise on the basis of the Purchase Price in effect
prior to such adjustment; provided, however, that the Company shall deliver to
such holder a due bill or other appropriate instrument
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<PAGE> 27
evidencing such holder's right to receive such additional shares (fractional or
otherwise) or securities upon the occurrence of the event requiring such
adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such reductions in the
Purchase Price, in addition to those adjustments expressly required by this
Section 11, as and to the extent that in their good faith judgment the Board of
Directors of the Company shall determine to be advisable in order that any (i)
consolidation or subdivision of the Preferred Stock, (ii) issuance wholly for
cash of any shares of Preferred Stock at less than the current market price,
(iii) issuance wholly for cash of shares of Preferred Stock or securities which
by their terms are convertible into or exchangeable for shares of Preferred
Stock, (iv) stock dividends, or (v) issuance of rights, options or warrants
referred to in this Section 11, hereafter made by the Company to holders of its
Preferred Stock shall not be taxable to such shareholders.
(n) The Company covenants and agrees that it
shall not, at any time after the Distribution Date, (i) consolidate with any
other Person (other than a Subsidiary of the Company in a transaction which
complies with Section 11(o) hereof), (ii) merge with or into any other Person
(other than a Subsidiary of the Company in a transaction which complies with
Section 11(o) hereof), or (iii) sell or transfer (or permit any Subsidiary to
sell or transfer), in one transaction, or a series of related transactions,
assets or earning power aggregating more than 50% of the assets or earning
power of the Company and its Subsidiaries (taken as a whole) to any other
Person or Persons (other than the Company and/or any of its Subsidiaries in one
or more transactions each of which complies with Section 11(o) hereof), if (x)
at the time of or immediately after such consolidation, merger or sale there
are any rights, warrants or other instruments or securities outstanding or
agreements in effect which would substantially diminish or otherwise eliminate
the benefits intended to be afforded by the Rights or (y) prior to,
simultaneously with or immediately after such consolidation, merger or sale,
the shareholders of the Person who constitutes, or would constitute, the
"Principal Party" for purposes of Section 13(a) hereof shall have received a
distribution of Rights previously owned by such Person or any of its Affiliates
and Associates.
(o) The Company covenants and agrees that, after
the Distribution Date, it will not, except as permitted by Section 23 or
Section 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.
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(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 or cause the Rights Agent to 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, following the Stock
Acquisition Date, directly or indirectly, (x) the Company shall consolidate
with, or merge with and into, any other Person (other than a Subsidiary of the
Company in a transaction which complies with Section 11(o) hereof), and the
Company shall not be the continuing or surviving corporation of such
consolidation or merger, (y) any Person (other than a Subsidiary of the Company
in a transaction which complies with Section 11(o) hereof) 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
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or part of the outstanding shares of Common Stock shall be changed into or
exchanged for stock or other securities of any other Person or cash or any
other property, or (z) the Company shall sell or otherwise transfer (or one or
more of its Subsidiaries shall sell or otherwise transfer), in one transaction
or a series of related transactions, assets or earning power aggregating more
than 50% of the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to any Person or Persons (other than the Company or any
Subsidiary of the Company in one or more transactions each of which complies
with Section 11(o) hereof), then, and in each such case (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 validly authorized and issued, fully paid, nonassessable and freely
tradeable shares of Common Stock of the Principal Party (as such term is
hereinafter defined), not subject to any liens, encumbrances, rights of first
refusal or other adverse claims, as shall be equal to the result obtained by
(1) multiplying the then current Purchase Price by the number of one one-
hundredths of a share of Preferred Stock for which a Right is exercisable
immediately prior to the first occurrence of a Section 13 Event (or, if the
Section 11(a)(ii) Event has occurred prior to the occurrence of a Section 13
Event, multiplying the number of such one one-hundredths of a share for which a
Right was exercisable immediately prior to the occurrence of the Section
11(a)(ii) Event by the Purchase Price in effect immediately prior to such first
occurrence), and dividing that product (which, following the first occurrence
of a Section 13 Event, shall be referred to as the "Purchase Price" for each
Right and for all purposes of this Agreement) by (2) 50% of the current market
price (determined pursuant to Section 11(d)(i) hereof) per share of the Common
Stock of such Principal Party on the date of consummation of such Section 13
Event; (ii) such Principal Party shall thereafter be liable for, and shall
assume, by virtue of such Section 13 Event, all the obligations and duties of
the Company pursuant to this Agreement; (iii) the term "Company" shall
thereafter be 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.
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(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, (1) if the Common Stock of such
Person is not at such time and has not been continuously over the preceding
twelve (12) month period registered under Section 12 of the Exchange Act, and
such Person is a direct or indirect Subsidiary of another Person the Common
Stock of which is and has been so registered, "Principal Party" shall refer to
such other Person; and (2) in case such Person is a Subsidiary, directly or
indirectly, of more than one Person, the Common Stocks of two or more of which
are and have been so registered, "Principal Party" shall refer to whichever of
such Persons is the issuer of the Common Stock having the greatest aggregate
market value.
(c) The Company shall not consummate any such
consolidation, merger, sale or transfer unless the Principal Party shall have a
sufficient number of authorized shares of its Common Stock which have not been
issued or reserved for issuance to permit the exercise in full of the Rights in
accordance with this Section 13 and unless prior thereto the Company and such
Principal Party shall have executed and delivered to the Rights Agent a
supplemental agreement providing for the terms set forth in paragraphs (a) and
(b) of this Section 13 and further providing that, as soon as practicable after
the date of any consolidation, merger or sale of assets mentioned in paragraph
(a) of this Section 13, the Principal Party will
(i) prepare and file a registration statement under
the Act, with respect to the Rights and the securities purchasable
upon exercise of the Rights on an appropriate form, and will use its
best efforts to cause such registration statement to (A) become
effective as soon as practicable after such filing and (B) remain
effective (with a
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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 the 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 Qualifying Offer (or a wholly owned subsidiary of 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 tender
offer or exchange 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 tender offer or
exchange offer. Upon consummation of any such transaction contemplated by this
Section 13(d), all Rights hereunder shall expire.
Section 14. Fractional Rights and Fractional Shares.
(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
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asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange or, if the Rights are not
listed or admitted to trading on the New York Stock Exchange, as reported in
the principal consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on which the
Rights are listed or admitted to trading, or if the Rights are not listed or
admitted to trading on any national securities exchange, the last quoted price
or, if not so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by NASDAQ or such other system then in use
or, if on any such date the Rights are not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a professional
market maker making a market in the Rights selected by the Board of Directors
of the Company. If on any such date no such market maker is making a market in
the Rights the fair value of the Rights on such date as determined in good
faith by the Board of Directors of the Company shall be used.
(b) The Company shall not be required to issue
fractions of shares of Preferred Stock (other than fractions which are integral
multiples of one one-hundredth of a share of Preferred Stock, which may, at the
option of the Company, be evidenced by depositary receipts) upon exercise of
the Rights or to distribute certificates which evidence fractional shares of
Preferred Stock (other than fractions which are integral multiples of one one-
hundredth of a share of Preferred Stock). In lieu of fractional shares of
Preferred Stock that are not integral multiples of one one-hundredth of a share
of Preferred Stock, the Company may pay to the registered holders of Rights
Certificates at the time such Rights are exercised as herein provided an amount
in cash equal to the same fraction of the current market value of one one-
hundredth of a share of Preferred Stock. For purposes of this Section 14(b),
the current market value of one one-hundredth of a share of Preferred Stock
shall be one one-hundredth of the closing price of a share of Preferred Stock
(as determined pursuant to Section 11(d)(ii) hereof) for the Trading Day
immediately prior to the date of such exercise.
(c) Following the occurrence of a Triggering
Event, the Company shall not be required to issue fractions of shares of Common
Stock upon exercise of the Rights 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
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<PAGE> 33
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
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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
Shareholder. No holder, as such, of any Rights Certificate shall be entitled
to vote, receive dividends or be deemed for any purpose the holder of the
number of one one-hundredths of a share of Preferred Stock or any other
securities of the Company which may at any time be issuable on the exercise of
the Rights represented thereby, nor shall anything contained herein or in any
Rights Certificate be construed to confer upon the holder of any Rights
Certificate, as such, any of the rights of a shareholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
shareholders (except as provided in Section 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
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<PAGE> 35
of this Agreement and the exercise and performance of its duties hereunder. The
Company also agrees to indemnify the Rights Agent for, and to hold it harmless
against, any loss, liability, or expense, incurred without negligence, bad
faith or willful misconduct on the part of the Rights Agent, for anything done
or omitted by the Rights Agent in connection with the acceptance and
administration of this Agreement, including the costs and expenses of defending
against any claim of liability in the premises.
(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 or stock transfer 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.
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(b) In case at any time the name of the Rights
Agent shall be changed and at such time any of the Rights Certificates shall
have been countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Rights Certificates so
countersigned; and in case at that time any of the Rights Certificates shall
not have been countersigned, the Rights Agent may countersign such Rights
Certificates either in its prior name or in its changed name; and in all such
cases such Rights Certificates shall have the full force provided in the Rights
Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations imposed by this Agreement upon the
following terms and conditions, by all of which the Company and the holders of
Rights Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal
counsel (who may be legal counsel for the Company), and the opinion of such
counsel shall be full and complete authorization and protection to the Rights
Agent as to any action taken or omitted by it in good faith and in accordance
with such opinion.
(b) Whenever in the performance of its duties
under this Agreement the Rights Agent shall deem it necessary or desirable that
any fact or matter (including, without limitation, the identity of any
Acquiring Person and the determination of "current market price") be proved or
established by the Company prior to taking or suffering any action hereunder,
such fact or matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved and
established by a certificate signed by the Chairman of the Board, the
President, any Vice President, the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of the Company and delivered to the Rights
Agent; and such certificate shall be full authorization to the Rights Agent for
any action taken or suffered in good faith by it under the provisions of this
Agreement in reliance upon such certificate.
(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.
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(e) The Rights Agent shall not be under any
responsibility in respect of the validity of this Agreement or the execution
and delivery hereof (except the due execution hereof by the Rights Agent) or in
respect of the validity or execution of any Rights Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement or in any
Rights Certificate; nor shall it be responsible for any adjustment required
under the provisions of Section 11 or Section 13 hereof or responsible for the
manner, method or amount of any such adjustment or the ascertaining of the
existence of facts that would require any such adjustment (except with respect
to the exercise of Rights evidenced by Rights Certificates after actual notice
of any such adjustment); nor shall it by any act hereunder be deemed to make
any representation or warranty as to the authorization or reservation of 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 validly authorized and issued,
fully paid and nonassessable.
(f) The Company agrees that it will perform,
execute, acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts, instruments and
assurances as may reasonably be required by the Rights Agent for the carrying
out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and
directed to accept instructions with respect to the performance of its duties
hereunder from the Chairman of the Board, the President, any Vice President,
the Secretary, any Assistant Secretary, the Treasurer or any Assistant
Treasurer of the Company, and to apply to such officers for advice or
instructions in connection with its duties, and it shall not be liable for any
action taken or suffered to be taken by it in good faith in accordance with
instructions of any such officer.
(h) The Rights Agent and any shareholder,
director, officer or employee of the Rights Agent may buy, sell or deal in any
of the Rights or other securities of the Company or become pecuniarily
interested in any transaction in which the Company may be interested, or
contract with or lend money to the Company or otherwise act as fully and freely
as though it were not Rights Agent under this Agreement. Nothing herein shall
preclude the Rights Agent from acting in any other capacity for the Company or
for any other legal entity.
(i) The Rights Agent may execute and exercise any
of the rights or powers hereby vested in it or perform any duty hereunder
either itself or
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<PAGE> 38
by or through its attorneys or agents, and the Rights Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of any
such attorneys or agents or for any loss to the Company resulting from any such
act, default, neglect or misconduct; provided, however, reasonable care was
exercised in the selection and continued employment thereof.
(j) No provision of this Agreement shall require
the Rights Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder or in the
exercise of its rights if there shall be reasonable grounds for believing that
repayment of such funds or adequate indemnification against such risk or
liability is not reasonably assured to it.
(k) If, with respect to any Right Certificate
surrendered to the Rights Agent for exercise or transfer, the certificate
attached to the form of assignment or form of election to purchase, as the case
may be, has either not been completed or indicates an affirmative response to
clause 1 and/or 2 thereof, the Rights Agent shall not take any further action
with respect to such requested exercise of transfer without first consulting
with the Company.
Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under this
Agreement upon thirty (30) days' notice in writing mailed to the Company, and
to each transfer agent of the Common Stock and Preferred Stock, by registered
or certified mail, and to the holders of the Rights Certificates by first-class
mail. The Company may remove the Rights Agent or any successor Rights Agent
upon thirty (30) days' notice in writing, mailed to the Rights Agent or
successor Rights Agent, as the case may be, and to each transfer agent of the
Common Stock and Preferred Stock, by registered or certified mail, and to the
holders of the Rights Certificates by first-class mail. If the Rights Agent
shall resign or be removed or shall otherwise become incapable of acting, the
Company shall appoint a successor to the Rights Agent. If the Company shall
fail to make such appointment within a period of thirty (30) days after giving
notice of such removal or after it has been notified in writing of such
resignation or incapacity by the resigning or incapacitated Rights Agent or by
the holder of a Rights Certificate (who shall, with such notice, submit his
Rights Certificate for inspection by the Company), then any registered holder
of any Rights Certificate may apply to any court of competent jurisdiction for
the appointment of a new Rights Agent. Any successor Rights Agent, whether
appointed by the Company or by such a court, shall be a corporation organized
and doing business under the laws of the United States or of the State of Texas
(or of any other state of the United States so long as such corporation is
authorized to do business as a
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banking institution in the States of New York or Texas), in good standing,
having a principal office in the States of New York or Texas, which is
authorized under such laws to exercise corporate trust or stock transfer powers
and is subject to supervision or examination by federal or state authority and
which either has or is an affiliate of a corporation which has at the time of
its appointment as Rights Agent a combined capital and surplus of at least
$100,000,000. After appointment, the successor Rights Agent shall be vested
with the same powers, rights, duties and responsibilities as if it had been
originally named as Rights Agent without further act or deed; but the
predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver
any further assurance, conveyance, act or deed necessary for the purpose. Not
later than the effective date of any such appointment, the Company shall file
notice thereof in writing with the predecessor Rights Agent and each transfer
agent of the Common Stock and the Preferred Stock, and mail a notice thereof in
writing to the registered holders of the Rights Certificates. Failure to give
any notice provided for in this Section 21, however, or any defect therein,
shall not affect the legality or validity of the resignation or removal of the
Rights Agent or the appointment of the successor Rights Agent, as the case may
be.
Section 22. Issuance of New Rights Certificates.
Notwithstanding any of the provisions of this Agreement or of the Rights to the
contrary, the Company may, at its option, issue new Rights Certificates
evidencing Rights in such form as may be approved by its Board of Directors to
reflect any adjustment or change in the Purchase Price and the number or kind
or class of shares or other securities or property purchasable under the Rights
Certificates made in accordance with the provisions of this Agreement. In
addition, in connection with the issuance or sale of shares of Common Stock
following the Distribution Date and prior to the redemption or expiration of
the Rights, the Company (a) shall, with respect to shares of Common Stock so
issued or sold pursuant to the exercise of stock options or under any employee
plan or arrangement, granted or awarded as of the Distribution Date, or upon
the exercise, conversion or exchange of securities hereinafter issued by the
Company, and (b) may, in any other case, if deemed necessary or appropriate by
the Board of Directors of the Company, issue Rights Certificates representing
the appropriate number of Rights in connection with such issuance or sale;
provided, however, that (i) no such Rights Certificate shall be issued if, and
to the extent that, the Company shall be advised by counsel that such issuance
would create a significant risk of material adverse tax consequences to the
Company or the Person to whom such Rights Certificate would be issued, and (ii)
no such Rights Certificate shall be issued if, and to the extent that,
appropriate adjustment shall otherwise have been made in lieu of the issuance
thereof.
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Section 23. Redemption and Termination.
(a) The Board of Directors of the Company may, at
its option, at any time prior to the earlier of (i) the close of business on
the tenth 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 tenth day following the Record Date), or (ii) the Final
Expiration Date, redeem all but not less than all the then outstanding Rights
at a redemption price of $.01 per Right, as such amount may be appropriately
adjusted to reflect any stock split, stock dividend or similar transaction
occurring after the date hereof (such redemption price being hereinafter
referred to as the "Redemption Price"). Notwithstanding anything contained in
this Agreement to the contrary, the Rights shall not be exercisable after the
occurrence of the 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, 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 the Board of Directors.
(b) Immediately upon the action of the Board of
Directors of the Company ordering the redemption of the Rights, evidence of
which shall have been filed with the Rights Agent and without any further
action and without any notice, the right to exercise the Rights will terminate
and the only right thereafter of the holders of Rights shall be to receive the
Redemption Price for each Right so held. Promptly after the action of the
Board of Directors ordering the redemption of the Rights, the Company shall
give notice of such redemption to the Rights Agent and the holders of the then
outstanding Rights by mailing such notice to all such holders at each holder's
last address as it appears upon the registry books of the Rights Agent or,
prior to the Distribution Date, on the registry books of the transfer agent for
the Common Stock. Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives the notice. Each
such notice of 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
37
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retained earnings of the Company), or (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, or (iii) to effect any reclassification of its Preferred
Stock (other than a reclassification involving only the subdivision of
outstanding shares of Preferred Stock), or (iv) to effect any consolidation or
merger into or with any other Person (other than a Subsidiary of the Company in
a transaction which complies with Section 11(o) hereof), or to effect any sale
or other transfer (or to permit one or more of its Subsidiaries to effect any
sale or other transfer), in one transaction or a series of related
transactions, of more than 50% of the assets or earning power of the Company
and its Subsidiaries (taken as a whole) to any other Person or Persons (other
than the Company and/or any of its Subsidiaries in one or more transactions
each of which complies with Section 11(o) hereof), or (v) to effect the
liquidation, dissolution or winding up of the Company, then, in each such case,
the Company shall give to each holder of a Rights Certificate, to the extent
feasible and in accordance with Section 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 the Section 11(a)(ii) Event shall
occur, (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) all references in the preceding paragraph to
Preferred Stock shall be deemed thereafter to refer to Common Stock and/or, if
appropriate, 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 or on the Company shall be sufficiently given or made if
sent by first-class mail, postage prepaid, addressed (until another address is
filed in writing with the Rights Agent) as follows:
38
<PAGE> 42
Cooper Industries, Inc.
Texas Commerce Tower
600 Travis Street, Suite 5800
Houston, Texas 77002
Attention: Secretary
Subject to the provisions of Section 21, any notice or demand authorized by
this Agreement to be given or made by the Company or by the holder of any
Rights Certificate to or on the Rights Agent shall be sufficiently given or
made if sent by first-class mail, postage prepaid, addressed (until another
address is filed in writing with the Company) as follows:
First Chicago Trust Company
of New York
525 Washington Boulevard,
Suite 4660
Jersey City, New Jersey 07310
Attention: Tenders and Exchanges
Administration Department
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Rights Certificate (or, if
prior to the Distribution Date, to the holder of certificates representing
shares of Common Stock) shall be sufficiently given or made if sent by first-
class mail, postage prepaid, addressed to such holder at the address of such
holder as shown on the registry books of the Company.
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 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, or (iv) to change or supplement the provisions hereunder in any
manner which the Company may deem necessary or desirable and which shall not
39
<PAGE> 43
adversely affect the interests of the holders of Rights Certificates (other
than an Acquiring Person or an Affiliate or Associate of an Acquiring Person);
provided, this Agreement may not be supplemented or amended to lengthen,
pursuant to clause (iii) of this sentence, (A) a time period relating to when
the Rights may be redeemed at such time as the Rights are not then redeemable,
or (B) any other time period unless such lengthening is for the purpose of
protecting, enhancing or clarifying the rights of, and/or the benefits to, the
holders of Rights. Upon the delivery of a certificate from an appropriate
officer of the Company which states that the proposed supplement or amendment
is in compliance with the terms of this Section 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 one one-hundredths of a share of Preferred Stock for which a
Right is exercisable; provided, however, that at any time prior to (i) a Stock
Acquisition Date or (ii) the date that a tender or exchange offer by any Person
(other than the Company, any Subsidiary of the Company, any employee benefit
plan of the Company or any Subsidiary of the Company, or any Person or entity
organized, appointed or established by the Company for or pursuant to the terms
of any such plan) is first published or sent or given within the meaning of
Rule 14d-2(a) of the General Rules and Regulations under the Exchange Act, if
upon consummation thereof, such Person would be the Beneficial Owner of 15% or
more of the shares of Common Stock then outstanding, the Board of Directors of
the Company may amend this Agreement to increase the Purchase Price or extend
the Final Expiration Date. Prior to the Distribution Date, the interests of the
holders of Rights shall be deemed coincident with the interests of the holders
of Common Stock.
Section 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. The Board of Directors of the
Company (with, where specifically provided for herein, the concurrence of the
Continuing Directors) shall have the exclusive power and authority to
administer this Agreement and to exercise all rights
40
<PAGE> 44
and powers specifically granted to the Board (with, where specifically provided
for herein, the concurrence of the Continuing Directors) or to the Company, or
as may be necessary or advisable in the administration of this Agreement,
including, without limitation, the right and power to (i) interpret the
provisions of this Agreement, and (ii) make all determinations deemed necessary
or advisable for the administration of this Agreement (including a
determination to redeem or not redeem the Rights or to amend the Agreement).
All such actions, calculations, interpretations and determinations (including,
for purposes of clause (y) below, all omissions with respect to the foregoing)
which are done or made by the Board (with, where specifically provided for
herein, the concurrence of the Continuing Directors) in good faith, shall (x)
be final, conclusive and binding on the Company, the Rights Agent, the holders
of the Rights and all other parties, and (y) not subject the Board or the
Continuing Directors to any liability to the holders of the Rights.
Section 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 the Board of
Directors of the Company determines in its good faith judgment that severing
the invalid language from this Agreement would adversely affect the purpose or
effect of this Agreement, the right of redemption set forth in Section 23
hereof shall be reinstated and shall not expire until the close of business on
the tenth Business Day following the date of such determination by the Board of
Directors. Without limiting the foregoing, if any provision requiring a
majority of the Board of Directors of the Company to be Continuing Directors to
act is held by any court of competent jurisdiction or other authority to be
invalid, void or unenforceable, such determination shall then be made by the
Board of Directors
41
<PAGE> 45
of the Company in accordance with applicable law and the Company's Articles of
Incorporation and Regulations.
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 Ohio 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.
42
<PAGE> 46
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
Attest: COOPER INDUSTRIES, INC.
By /s/ Diane K. Schumacher By /s/ H. John Riley, Jr.
------------------------------ -----------------------------
Name: Diane K. Schumacher Name: H. John Riley, Jr.
Title: Senior Vice President Title: President
Attest: FIRST CHICAGO TRUST COMPANY
OF NEW YORK
By /s/ Achille Retolatto By /s/ Gerard J. O'Leary
------------------------------ -----------------------------
Name:Achille Retolatto Name: Gerard J. O'Leary
Title: Vice President Title: Vice President
43
<PAGE> 47
EXHIBIT A
CERTIFICATE OF AMENDMENT
TO THE TWENTY-SIXTH
AMENDED ARTICLES OF INCORPORATION
BY DIRECTORS OF
COOPER INDUSTRIES, INC.
Diane K. Schumacher, who is Senior Vice President, General Counsel and
Secretary and Karen E. Herbert, who is Senior Counsel and Assistant Secretary
of the above named Ohio corporation organized for profit, do hereby certify
that at a meeting of the Board of Directors of the Corporation held on August
5, 1997, at which a quorum was present, the Directors duly adopted the
following resolutions:
(See attached)
IN WITNESS WHEREOF, the above named officers, acting for and on behalf
of the Corporation, have hereunto subscribed their names this ______ day of
____________ 1997.
By
------------------------------------
Diane K. Schumacher
Senior Vice President, General
Counsel and Secretary
By
------------------------------------
Karen E. Herbert
Senior Counsel and Assistant
Secretary
<PAGE> 48
Amendment of Articles of Incorporation
WHEREAS, the purpose for the current series of Preferred Stock
designated as Series A Participating Preferred Stock has expired without the
issuance of any shares of such series;
WHEREAS, pursuant to Section 1701.70(B)(1) of the Ohio General
Corporation Law and the Corporation's Twenty-Sixth Amended Articles of
Incorporation (the "Articles") the Board of Directors is authorized to amend
the Articles to terminate the designation of the current Series A Participating
Preferred Stock, return such shares to the authorized but undesignated
Preferred Stock, no par value, and designate one or more new series from such
shares.
NOW THEREFORE, BE IT RESOLVED, that the proper officers are authorized
to amend the Articles to terminate the designation of the current Series A
Participating Preferred Stock and return such shares to the authorized but
undesignated Preferred Stock, no par value, and to designate a new series of
Preferred Stock, no par value as Series A Participating Preferred Stock and to
provide the terms of such stock (insofar as such terms supplement the general
provisions applicable to all no par value Preferred Shares now authorized as
set forth in Section A of Article IV), which amendment shall consist of
deleting the present Section B of Article IV and adding as a new Section B, the
"Express Terms of the Series A Participating Preferred Stock" presented to this
meeting; and
RESOLVED, that the officers of this Corporation be, and they hereby
are, authorized and directed, jointly and severally, for and in the name and on
behalf of this Corporation, to execute and deliver any and all certificates,
agreements and other documents, take any and all steps and do any and all
things which they may deem necessary or advisable in order to effectuate the
purposes of each and all of the foregoing resolutions.
(See attached Express Terms of the Series A Participating Preferred Stock)
<PAGE> 49
B. EXPRESS TERMS OF THE SERIES A PARTICIPATING PREFERRED STOCK
SECTION 4.1B--Designation and Amount--The shares of such series shall
be designated as "Series A Participating Preferred Stock" and the number of
shares constituting such series shall initially be 1,340,750, no par value,
such number of shares to be subject to increase or decrease by action of the
Board of Directors.
SECTION 4.2B--Dividends and Distributions--(a) Subject to the prior
and superior rights of the holders of any shares of any series of Preferred
Stock ranking prior and superior to the shares of Series A Participating
Preferred Stock with respect to dividends, the holders of shares of Series A
Participating Preferred Stock shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the last day of March, June,
September and December in each year (each such date being referred to herein as
a "Quarterly Dividend Payment Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or fraction of a
share of Series A Participating Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (a) $10.00 or (b) subject
to the provision for adjustment hereinafter set forth, 100 times the aggregate
per share amount of all cash dividends, and 100 times the aggregate per share
amount (payable in kind) of all noncash dividends or other distributions other
than a dividend payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise), declared
on the Common Stock, par value $5.00 per share, of the Corporation (the "Common
Stock") since the immediately preceding Quarterly Dividend Payment Date, or,
with respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A Participating
Preferred Stock. In the event the Corporation shall at any time after August
5, 1997 (the "Rights Declaration Date")(i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding Common
Stock, or (iii) combine the outstanding Common Stock into a smaller number of
shares, then in each such case the amount to which holders of shares of Series
A Participating Preferred Stock were entitled immediately prior to such event
under clause (b) of the preceding sentence shall be adjusted by multiplying
such amount by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
(b) The Corporation shall declare a dividend or distribution on the
Series A Participating Preferred Stock as provided in paragraph (a) above
concurrently with its declaration of a dividend or distribution on the Common
Stock (other than a dividend payable in shares of Common Stock); provided that,
in the event no dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly Dividend Payment
1
<PAGE> 50
Date and the next subsequent Quarterly Dividend Payment Date, a dividend of
$10.00 per share of the Series A Participating Preferred Stock shall
nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Participating Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares unless the date of
issue of such shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such shares shall begin to
accrue from the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A Participating Preferred Stock
entitled to receive a quarterly dividend and before such Quarterly Dividend
Payment Date, in either of which events such dividends shall begin to accrue
and be cumulative from such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall not bear interest. Dividends paid on the shares of
Series A Participating Preferred Stock in an amount less than the total amount
of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the
determination of holders of shares of Series A Participating Preferred Stock
entitled to receive payment of a dividend or distribution declared thereon,
which record date shall be no more than thirty (30) days prior to the date
fixed for the payment thereof.
SECTION 4.3B--Voting Rights--The holders of shares of Series A
Participating Preferred Stock shall have voting rights as set forth in Section
4.6A of the Corporation's Articles of Incorporation.
SECTION 4.4B--Certain Restrictions--(a) Whenever quarterly dividends
or other dividends or distributions payable on the Series A Participating
Preferred Stock as provided in Section 4.2B are in arrears, thereafter and
until all accrued and unpaid dividends and distributions, whether or not
declared, on shares of Series A Participating Preferred Stock outstanding shall
have been paid in full, the Corporation shall not
(i) declare or pay dividends on, make any other distributions
on, or redeem or purchase or otherwise acquire for consideration any
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Participating
Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up) with the
Series A Participating Preferred Stock, except dividends paid ratably
on the Series A Participating Preferred Stock and all such parity
stock on which dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such shares are then
entitled;
2
<PAGE> 51
(iii) purchase or otherwise acquire for consideration any
shares of Series A Participating Preferred Stock, except in accordance
with a purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of such shares
upon such terms as the Board of Directors, after consideration of the
annual dividend rates and other rights and preferences of the series,
shall determine in good faith will result in fair and equitable
treatment to the holders of such series.
(b) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (a) of this Section
4.4B, purchase or otherwise acquire such shares at such time and in such
manner.
SECTION 4.5B--Reacquired Shares--Any shares of Series A Participating
Preferred Stock purchased or otherwise acquired by the Corporation in any
manner whatsoever shall be retired promptly after the acquisition thereof.
SECTION 4.6B--Liquidation, Dissolution or Winding Up--(a) Upon any
liquidation (voluntary or otherwise), dissolution or winding up of the
Corporation, no distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Participating Preferred Stock unless, prior
thereto, the holders of shares of Series A Participating Preferred Stock shall
have received $100 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment (the "Series A Liquidation Preference").
(b) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference and
the liquidation preferences of all other series of preferred stock, if any,
which rank on a parity with the Series A Participating Preferred Stock then
such remaining assets shall be distributed ratably to the holders of such
parity shares in proportion to their respective liquidation preferences.
SECTION 4.7B--No Redemption--The shares of Series A Participating
Preferred Stock shall not be redeemable.
SECTION 4.8B--Ranking--The Series A Participating Preferred Stock
shall rank equal to all other series of the Corporation's Preferred Stock as to
the payment of dividends and the distribution of assets.
SECTION 4.9B--Amendment--The Restated Articles of Incorporation of the
Corporation shall not be further amended in any manner which would materially
alter or change the powers, preferences or special rights of the Series A
Participating Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of two-thirds (2/3) or more of the outstanding
shares of the Series A Participating Preferred Stock, voting separately as a
class.
3
<PAGE> 52
SECTION 4.1OB--Fractional Shares--Series A Participating Preferred
Stock may be issued in fractions of a share which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the benefit of all
other rights of holders of Series A Participating Preferred Stock.
4
<PAGE> 53
EXHIBIT B
[Form of Rights Certificate]
Certificate No. R- ________Rights
NOT EXERCISABLE AFTER AUGUST 5, 2007 OR EARLIER IF REDEEMED BY THE
COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE
COMPANY, AT $.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY
AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT)
AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID.
[THE RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE ARE OR WERE
BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON
OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE
DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE
AND THE RIGHTS REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE
CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF SUCH AGREEMENT.(1)
Rights Certificate
COOPER INDUSTRIES, INC.
This certifies that , or registered
assigns, is the registered owner of the number of Rights set forth above, each
of which entitles the owner thereof, subject to the terms, provisions and
conditions of the Rights Agreement, dated as of August 5, 1997 (the "Rights
Agreement"), between Cooper
- ---------------------------
(1) The portion of the legend in brackets shall be inserted only if
applicable and shall replace the preceding sentence.
<PAGE> 54
Industries, Inc., an Ohio corporation (the "Company"), and First Chicago Trust
Company of New York, a New York trust company (the "Rights Agent"), to purchase
from the Company at any time prior to 5:00 P.M. (Houston, Texas time) on August
5, 2007 at the office or offices of the Rights Agent designated for such
purpose, or its successors as Rights Agent, one one-hundredth of a fully paid,
nonassessable share of Series A Participating Preferred Stock (the "Preferred
Stock") of the Company, at a purchase price of $225 per one one-hundredth of a
share (the "Purchase Price"), upon presentation and surrender of this Rights
Certificate with the Form of Election to Purchase and related Certificate duly
executed. The Purchase Price shall be paid, at the election of the holder, in
cash or shares of Common Stock of the Company having an equivalent value. The
number of Rights evidenced by this Rights Certificate (and the number of shares
which may be purchased upon exercise thereof) set forth above, and the Purchase
Price per share set forth above, are the number and Purchase Price as of August
5, 1997 based on the Preferred Stock as constituted at such date.
Upon the occurrence of the Section 11(a)(ii) Event (as such
term is defined in the Rights Agreement), if the Rights evidenced by this
Rights Certificate are beneficially owned by (i) an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person (as such terms are defined
in the Rights Agreement), (ii) a transferee of any such Acquiring Person,
Associate or Affiliate, or (iii) under certain circumstances specified in the
Rights Agreement, a transferee of a person who, after such transfer, became an
Acquiring Person, or an Affiliate or Associate of an Acquiring Person, such
Rights shall become null and void and no holder hereof shall have any right
with respect to such Rights from and after the occurrence of the Section
11(a)(ii) Event.
As provided in the Rights Agreement, the Purchase Price and
the number and kind of shares of Preferred Stock or other securities, which may
be purchased upon the exercise of the Rights evidenced by this Rights
Certificate are subject to modification and adjustment upon the happening of
certain events, including Triggering Events.
This Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms, provisions and
conditions are hereby incorporated herein by reference and made a part hereof
and to which Rights Agreement reference is hereby made for a full description
of the rights, limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent, which limitations of rights include the
temporary suspension of the exercisability of such Rights under the specific
circumstances set forth in the Rights Agreement. Copies
B-2
<PAGE> 55
of the Rights Agreement are on file at the above-mentioned office of the Rights
Agent and are also available upon written request to the Rights Agent.
This Rights Certificate, with or without other Rights
Certificates, upon surrender at the principal office or offices of the Rights
Agent designated for such purpose, may be exchanged for another Rights
Certificate or Rights Certificates of like tenor and date evidencing Rights
entitling the holder to purchase a like aggregate number of one one-hundredths
of a share of Preferred Stock as the Rights evidenced by the Rights Certificate
or Rights Certificates surrendered shall have entitled such holder to purchase.
If this Rights Certificate shall be exercised in part, the holder shall be
entitled to receive upon surrender hereof another Rights Certificate or Rights
Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate may be redeemed by the Company at its option at a
redemption price of $.01 per Right at any time prior to the earlier of the
close of business on (i) the tenth business day following the Stock Acquisition
Date (as such time period may be extended pursuant to the Rights Agreement),
and (ii) the Final Expiration Date.
The Company is not required to issue fractional shares of
Preferred Stock upon the exercise of any Right or Rights evidenced hereby
(other than fractions which are integral multiples of one one-hundredth of a
share of Preferred Stock, which may, at the election of the Company, be
evidenced by depositary receipts), but in lieu thereof a cash payment may be
made, as provided in the Rights Agreement.
No holder of this Rights Certificate shall be entitled to vote
or receive dividends or be deemed for any purpose the holder of shares of
Preferred Stock or of any other securities of the Company which may at any time
be issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a shareholder of the Company or any right to vote for the
election of directors or upon any matter submitted to shareholders at any
meeting thereof, or to give or withhold consent to any corporate action, or, to
receive notice of meetings or other actions affecting shareholders (except as
provided in the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this Rights
Certificate shall have been exercised as provided in the Rights Agreement.
B-3
<PAGE> 56
This Rights Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal.
Dated as of ________ ___, ____
ATTEST: COOPER INDUSTRIES, INC.
- ---------------------- By
Secretary ---------------------------
Name:
Title:
Countersigned:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
By
---------------------
Authorized Signature
B-4
<PAGE> 57
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED
-------------------------------------------------------------
hereby sells, assigns and transfers unto
----------------------------------------
- --------------------------------------------------------------------------------
(Please print name and address of transferee)
- -------------------------------------------------------------------------------
this Rights Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint _________________ Attorney,
to transfer the within Rights Certificate on the books of the within-named
Company, with full power of substitution.
Dated: ,
------------------- -----
--------------------------------
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the appropriate boxes that:
(1) this Rights Certificate [ ] is [ ] is not being sold,
assigned and transferred by or on behalf of a Person who is or was an Acquiring
Person or an Affiliate or Associate of any such Acquiring Person (as such terms
are defined pursuant to the Rights Agreement); and
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights evidenced by this
Rights Certificate from any Person who is, was or subsequently became an
Acquiring Person or an Affiliate or Associate of an Acquiring Person.
Dated: ,
------------------- ------ -----------------------------
Signature
Signature Guaranteed:
B-5
<PAGE> 58
NOTICE
The signature to the foregoing Assignment and Certificate must correspond
to the name as written upon the face of this Rights Certificate in every
particular, without alteration or enlargement or any change whatsoever.
B-6
<PAGE> 59
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise Rights represented by the
Rights Certificate.)
To: COOPER INDUSTRIES, INC.:
The undersigned hereby irrevocably elects to exercise __________ Rights
represented by this Rights Certificate to purchase the shares of Preferred
Stock issuable upon the exercise of the Rights (or such other securities of the
Company or of any other person which may be issuable upon the exercise of the
Rights) and requests that certificates for such shares be issued in the name of
and delivered to:
Please insert social security
or other identifying number
- --------------------------------------------------------------------------------
(Please print name and address)
- --------------------------------------------------------------------------------
If such number of Rights shall not be all the Rights evidenced by this
Rights Certificate, a new Rights Certificate for the balance of such Rights
shall be registered in the name of and delivered to:
Please insert social security
or other identifying number
- --------------------------------------------------------------------------------
(Please print name and address)
- --------------------------------------------------------------------------------
Dated: ,
--------------- ---- ------------------------
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the appropriate boxes that:
B-7
<PAGE> 60
(1) the Rights evidenced by this Rights Certificate [ ] are [ ] are not
being exercised by or on behalf of a Person who is or was an Acquiring Person
or an Affiliate or Associate of any such Acquiring Person (as such terms are
defined pursuant to the Rights Agreement); and
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate
from any Person who is, was or became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated:
------------ ----------------------
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Election to Purchase and Certificate must
correspond to the name as written upon the face of this Rights Certificate in
every particular, without alteration or enlargement or any change whatsoever.
B-8
<PAGE> 61
EXHIBIT C
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED STOCK
On August 5, 1997, the Board of Directors of Cooper Industries, Inc. (the
"Company") declared a dividend distribution of one Right for each share of
Company Common Stock to shareholders of record at the close of business on
August 15, 1997. Each Right entitles the registered holder to purchase from
the Company one one-hundredth of a share of Series A Participating Preferred
Stock, no par value (the "Preferred Stock"), at a Purchase Price of $225 per
one one-hundredth of a share, subject to adjustment. The description and terms
of the Rights are set forth in the Rights Agreement (the "Rights Agreement")
between the Company and First Chicago Trust Company of New York, as Rights
Agent.
Initially, the Rights will be attached to all Common Stock certificates
representing shares then outstanding, and no separate Rights Certificates will
be distributed. The Rights will separate from the Common Stock and a
"Distribution Date" will occur upon the earlier of (i) 10 business days
following a public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") has acquired, or obtained the right
to acquire, beneficial ownership of 15% or more of the outstanding shares of
Common Stock (the "Stock Acquisition Date"), or (ii) 10 business days (or such
later date as the Board of Directors shall determine) following the
commencement of a tender offer or exchange offer that would result in a person
or group beneficially owning 15% or more of such outstanding shares of Common
Stock. Until the Distribution Date, (i) the Rights will be evidenced by the
Common Stock certificates and will be transferred with and only with such
Common Stock certificates, (ii) new Common Stock certificates issued after
August 15, 1997 will contain a notation incorporating the Rights Agreement by
reference, and (iii) the surrender for transfer of any certificates for Common
Stock outstanding will also constitute the transfer of the Rights associated
with the Common Stock represented by such certificates. Pursuant to the Rights
Agreement, the Company reserves the right to require prior to the occurrence of
a Triggering Event (as defined below) that, upon any exercise of Rights, a
number of Rights be exercised so that only whole shares of Preferred Stock will
be issued.
The Rights are not exercisable until the Distribution Date and will
expire at the close of business on August 5, 2007 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
<PAGE> 62
on the Distribution Date and, thereafter, the separate Rights Certificates
alone will represent the Rights. Except as otherwise determined by the Board
of Directors, only shares of Common Stock outstanding prior to the Distribution
Date will be issued with Rights.
In the event that an Acquiring Person becomes the beneficial owner of 15%
or more of the then outstanding shares of Common Stock (unless such acquisition
is made pursuant to a tender or exchange offer for all outstanding shares of
the Company, upon terms and conditions determined by a majority of the
Continuing Directors (as defined below) to be in the best interests of the
Company and its shareholders (a "Qualifying Offer")), each holder of a Right
will thereafter have the right to receive, upon exercise, Common Stock (or, in
certain circumstances, cash, property or other securities of the Company),
having a value equal to two times the Exercise Price of the Right. The
Exercise Price is the Purchase Price times the number of shares of Common Stock
associated with each Right (initially, one). Notwithstanding any of the
foregoing, following the occurrence of the event set forth in this paragraph,
all Rights that are, or (under certain circumstances specified in the Rights
Agreement) were, beneficially owned by any Acquiring Person will be null and
void.
For example, at an exercise price of $50 per Right, each Right not owned
by an Acquiring Person (or by certain related parties or transferees) following
the event set forth in the preceding paragraph would entitle its holder to
purchase $100 worth of Common Stock (or other consideration, as noted above)
for $50. Assuming that the Common Stock had a per share market price of $10 at
such time, the holder of each valid Right would be entitled to purchase 10
shares of Common Stock for $50.
In the event that at any time following the Stock Acquisition Date, (i)
the Company is acquired in a merger or business combination transaction in
which the Company is not the surviving corporation (other than a merger
consummated pursuant to a Qualifying Offer); (ii) the Company is the surviving
corporation in a consolidation or merger pursuant to which all or part of the
outstanding shares of Common Stock are changed or exchanged for stock or other
securities of any other person or cash or any other property; or (iii) more
than 50% of the combined assets or earning power is sold or transferred (in
each case other than certain consolidations with, mergers with and into, or
sales of assets or earning power by or to subsidiaries of the Company as
specified in the Rights Agreement), each holder of a Right (except Rights which
have previously been voided as set forth above) shall thereafter have the right
to receive, upon exercise thereof, Common Stock of the acquiring company having
a value equal to two times the Exercise Price of the Right. The events
described in this paragraph and in the second preceding paragraph are referred
to as the "Triggering Events."
C-2
<PAGE> 63
The Purchase Price payable, the number and kind of shares covered by each
Right and the number of Rights outstanding 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 securities convertible into Preferred Stock at
less than the current market price of the Preferred Stock, or (iii) upon the
distribution to holders of the Preferred Stock of evidences of indebtedness,
cash (excluding regular quarterly cash dividends), assets (other than dividends
payable in Preferred Stock) or of subscription rights or warrants (other than
those referred to in (ii) immediately above).
With certain exceptions, no adjustments in the Purchase Price will be
required until cumulative adjustments amount to at least 1% of the Purchase
Price. No fractional shares of Preferred Stock are required to be issued
(other than fractions which are integral multiples of one one-hundredth of a
share of Preferred Stock) and, in lieu thereof, the Company may make an
adjustment in cash based on the market price of the Preferred Stock on the last
trading date prior to the date of exercise.
At any time until ten 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, shares of Common Stock or other consideration
deemed appropriate by the Board of Directors). Immediately upon the action of
the Board of 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 "Continuing Director" means any member of the Board of Directors
of the Company who was a member of the Board prior to the date of the Rights
Agreement, and any person who is subsequently elected to the Board if such
person is recommended or approved by a majority of the Continuing Directors,
but shall not include an Acquiring Person, or an affiliate or associate of an
Acquiring Person, or any representative of the foregoing entities.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of the Company, including, without limitation, the
right to vote or to receive dividends. While the distribution of the Rights
will not be taxable to shareholders or to the Company, shareholders may,
depending upon the circumstances, recognize taxable income in the event that
the Rights become exercisable for Common Stock (or other consideration) of the
Company as set forth above or in the event that the Rights are redeemed.
Other than those provisions relating to the principal economic terms of
the Rights, any of the provisions of the Rights Agreement may be amended by the
Board of Directors of the Company prior to the Distribution Date. After the
Distri-
C-3
<PAGE> 64
bution Date, the provisions of the Rights Agreement may be amended by the Board
in order to cure any ambiguity, to make changes which do not adversely affect
the interests of holders of Rights or to shorten or lengthen any time period
under the Rights Agreement; provided, however, that no amendment to adjust the
time period governing redemption shall be made at such time as the Rights are
not redeemable. Under certain circumstances, the Board of Directors may amend
the Rights Agreement to increase the Purchase Price or extend the Final
Expiration Date.
A copy of the Rights Agreement is being filed with the Securities and
Exchange Commission as an Exhibit to a Registration Statement on Form 8-A. A
copy of the Rights Agreement is available free of charge from the Rights Agent.
This summary description of the Rights does not purport to be complete and is
qualified in its entirety by reference to the Rights Agreement, which is
incorporated herein by reference.
C-4
<PAGE> 1
[COOPER INDUSTRIES LETTERHEAD]
H. JOHN RILEY, JR. [COOPER LOGO]
Chairman, President and Chief Executive Officer
EXHIBIT 20.1
August 21, 1997
Dear Shareholder:
To ensure our ability to protect the interests of our shareholders in the event
of a hostile takeover attempt, your Board of Directors has adopted a
Shareholder Rights Plan, which provides for the granting of Rights to holders
of Cooper Industries common stock. The Board of Directors declared a dividend
distribution of one preferred share purchase Right for each share of common
stock held on August 15, 1997.
WE BELIEVE THIS PLAN WILL SERVE YOUR INTERESTS IF SHAREHOLDERS ARE CONFRONTED
WITH UNFAIR TAKEOVER TACTICS OR ATTEMPTS TO ACQUIRE CONTROL OF THE COMPANY AT
AN INADEQUATE PRICE. Like hundreds of other companies, Cooper Industries has
adopted a Shareholder Rights Plan to assure that any acquisition or change in
control of the Company would take place under circumstances in which your Board
of Directors can secure the best available transaction for all shareholders.
THE ADOPTION OF THE PLAN IS NOT IN RESPONSE TO ANY KNOWN EFFORT TO ACQUIRE
CONTROL OF THE COMPANY.
THIS PLAN IS NOT INTENDED TO PREVENT THE ACQUISITION OF THE COMPANY ON TERMS
THAT ARE IN THE BEST INTERESTS OF ALL SHAREHOLDERS. The mere granting of the
Rights should not deter any prospective buyer willing to negotiate with your
Board of Directors or make an offer for all shares at a fair price.
A more detailed description of the Plan is enclosed for your information. No
Rights certificates will be issued until they are exercisable. YOU ARE NOT
REQUIRED TO TAKE ANY ACTION AT THIS TIME WITH RESPECT TO THE RIGHTS AND YOU
SHOULD NOT RETURN ANY SHARE CERTIFICATES WHICH YOU MAY HOLD.
Sincerely,
/s/ H. John Riley, Jr.
Enclosure
<PAGE> 2
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED STOCK
On August 5, 1997, the Board of Directors of Cooper Industries, Inc.
(the "Company") declared a dividend distribution of one Right for each share of
Company Common Stock to shareholders of record at the close of business on
August 15, 1997. Each Right entitles the registered holder to purchase from
the Company one one-hundredth of a share of Series A Participating Preferred
Stock, no par value (the "Preferred Stock"), at a Purchase Price of $225 per
one one-hundredth of a share, subject to adjustment. The description and terms
of the Rights are set forth in the Rights Agreement (the "Rights Agreement")
between the Company and First Chicago Trust Company of New York, as Rights
Agent.
Initially, the Rights will be attached to all Common Stock certificates
representing shares then outstanding, and no separate Rights Certificates will
be distributed. The Rights will separate from the Common Stock and a
"Distribution Date" will occur upon the earlier of (i) 10 business days
following a public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") has acquired, or obtained the right
to acquire, beneficial ownership of 15% or more of the outstanding shares of
Common Stock (the "Stock Acquisition Date"), or (ii) 10 business days (or such
later date as the Board of Directors shall determine) following the
commencement of a tender offer or exchange offer that would result in a person
or group beneficially owning 15% or more of such outstanding shares of Common
Stock. Until the Distribution Date, (i) the Rights will be evidenced by the
Common Stock certificates and will be transferred with and only with such
Common Stock certificates, (ii) new Common Stock certificates issued after
August 15, 1997 will contain a notation incorporating the Rights Agreement by
reference, and (iii) the surrender for transfer of any certificates for Common
Stock outstanding will also constitute the transfer of the Rights associated
with the Common Stock represented by such certificates. Pursuant to the Rights
Agreement, the Company reserves the right to require prior to the occurrence of
a Triggering Event (as defined below) that, upon any exercise of Rights, a
number of Rights be exercised so that only whole shares of Preferred Stock will
be issued.
The Rights are not exercisable until the Distribution Date and will
expire at the close of business on August 5, 2007 unless earlier redeemed by
the Company as described below.
As soon as practicable after the Distribution Date, Rights Certificates
will be mailed to holders of record of the Common Stock as of the close of
business on the Distribution Date and, thereafter, the separate Rights
Certificates alone will represent the Rights. Except as otherwise determined
by the Board of Directors, only shares of Common Stock outstanding prior to the
Distribution Date will be issued with Rights.
In the event that an Acquiring Person becomes the beneficial owner of
15% or more of the then outstanding shares of Common Stock (unless such
acquisition is made pursuant to a tender or exchange offer for all outstanding
shares of the Company, upon terms and conditions determined by a majority of
the Continuing Directors (as defined below) to be in the best interests of the
Company and its shareholders (a "Qualifying Offer")), each holder of a Right
will thereafter have the right to receive, upon exercise, Common Stock (or, in
certain circumstances, cash, property or other securities of the Company),
having a value equal to two times the Exercise Price of the Right. The
Exercise Price is the Purchase Price times the number of shares of Common Stock
associated with each Right (initially, one). Notwithstanding any of the
foregoing, following the occurrence of the event set forth in this paragraph,
all Rights that are, or (under certain circumstances specified in the Rights
Agreement) were, beneficially owned by any Acquiring Person will be null and
void.
For example, at an exercise price of $50 per Right, each Right not owned
by an Acquiring Person (or by certain related parties or transferees) following
the event set forth in the preceding paragraph would entitle its holder to
purchase $100 worth of Common Stock (or other consideration, as noted above)
for $50. Assuming that the Common Stock had a per share market price of $10 at
such time, the holder of each valid Right would be entitled to purchase 10
shares of Common Stock for $50.
<PAGE> 3
In the event that at any time following the Stock Acquisition Date, (i)
the Company is acquired in a merger or business combination transaction in
which the Company is not the surviving corporation (other than a merger
consummated pursuant to a Qualifying Offer); (ii) the Company is the surviving
corporation in a consolidation or merger pursuant to which all or part of the
outstanding shares of Common Stock are changed or exchanged for stock or other
securities of any other person or cash or any other property; or (iii) more
than 50% of the combined assets or earning power is sold or transferred (in
each case other than certain consolidations with, mergers with and into, or
sales of assets or earning power by or to subsidiaries of the Company as
specified in the Rights Agreement), each holder of a Right (except Rights which
have previously been voided as set forth above) shall thereafter have the right
to receive, upon exercise thereof, Common Stock of the acquiring company having
a value equal to two times the Exercise Price of the Right. The events
described in this paragraph and in the second preceding paragraph are referred
to as the "Triggering Events."
The Purchase Price payable, the number and kind of shares covered by
each Right and the number of Rights outstanding 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 securities convertible into Preferred Stock at
less than the current market price of the Preferred Stock, or (iii) upon the
distribution to holders of the Preferred Stock of evidences of indebtedness,
cash (excluding regular quarterly cash dividends), assets (other than dividends
payable in Preferred Stock) or of subscription rights or warrants (other than
those referred to in (ii) immediately above).
With certain exceptions, no adjustments in the Purchase Price will be
required until cumulative adjustments amount to at least 1% of the Purchase
Price. No fractional shares of Preferred Stock are required to be issued
(other than fractions which are integral multiples of one one-hundredth of a
share of Preferred Stock) and, in lieu thereof, the Company may make an
adjustment in cash based on the market price of the Preferred Stock on the last
trading date prior to the date of exercise.
At any time until ten 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, shares of Common Stock or other
consideration deemed appropriate by the Board of Directors). Immediately upon
the action of the Board of 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 "Continuing Director" means any member of the Board of
Directors of the Company who was a member of the Board prior to the date of the
Rights Agreement, and any person who is subsequently elected to the Board if
such person is recommended or approved by a majority of the Continuing
Directors, but shall not include an Acquiring Person, or an affiliate or
associate of an Acquiring Person, or any representative of the foregoing
entities.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of the Company, including, without limitation, the
right to vote or to receive dividends. While the distribution of the Rights
will not be taxable to shareholders or to the Company, shareholders may,
depending upon the circumstances, recognize taxable income in the event that
the Rights become exercisable for Common Stock (or other consideration) of the
Company as set forth above or in the event that the Rights are redeemed.
Other than those provisions relating to the principal economic terms of
the Rights, any of the provisions of the Rights Agreement may be amended by the
Board of Directors of the Company prior to the Distribution Date. After the
Distribution Date, the provisions of the Rights Agreement may be amended by the
Board in order to cure any ambiguity, to make changes which do not adversely
affect the interests of holders of Rights or to shorten or lengthen any time
period under the Rights Agreement; provided, however, that no amendment to
adjust the time period governing redemption shall be made at such time as the
Rights are not redeemable. Under certain circumstances, the Board of Directors
may amend the Rights Agreement to increase the Purchase Price or extend the
Final Expiration Date.
A copy of the Rights Agreement is being filed with the Securities and
Exchange Commission as an Exhibit to a Registration Statement on Form 8-A. A
copy of the Rights Agreement is available free of charge from the Rights Agent.
This summary description of the Rights does not purport to be complete and is
qualified in its entirety by reference to the Rights Agreement, which is
incorporated herein by reference.
<PAGE> 1
[COOPER INDUSTRIES LETTERHEAD]
EXHIBIT 99.1
News
Release [COOPER LOGO]
FOR IMMEDIATE RELEASE
August 5, 1997
Contacts: John Breed Phyllis Piano
713-209-8835 713-209-8415
COOPER INDUSTRIES' BOARD DECLARES DIVIDENDS
HOUSTON, TEXAS, August 5, 1997 -- The board of directors of Cooper Industries,
Inc. (NYSE-CBE) today declared quarterly dividends on the company's outstanding
shares.
A regular quarterly dividend of 33 cents on each common share is payable
October 1, 1997, to shareholders of record on September 15, 1997.
The board of directors also adopted a Shareholder Rights Plan and
declared a dividend distribution of one preferred share purchase Right for each
share of common stock held of record as of the close of business on August 15,
1997.
Like hundreds of other companies, Cooper Industries has adopted a
Shareholder Rights Plan to deter coercive takeover tactics and prevent an
acquirer from gaining control of the company without offering a fair price to
all of the company's shareholders. The adoption of the plan is not in response
to any known effort to acquire control of the company.
The Rights become exercisable only if a person or group acquires
beneficial ownership of 15% or more of Cooper's common stock or commences a
tender or exchange offer for 15% or more of Cooper's common stock, unless the
tender or exchange offer is for all outstanding shares of the company upon
terms determined by Cooper's continuing directors to be in the best interests
of the company and its shareholders.
When exercisable, the Rights would entitle the holders (other than the
acquirer) to buy shares of Cooper common stock having a market value equal to
two times the Right's exercise price, or, in certain circumstances, to buy
shares of the acquiring company having a market value equal to two times the
Right's exercise price.
<PAGE> 2
COOPER INDUSTRIES, INC. PAGE 2
The Plan provides that Cooper may redeem the Rights for $.01 per Right
at any time before the 10th business day after a public announcement that a 15%
position has been acquired. The Rights expire on August 5, 2007.
Cooper Industries, with 1996 revenues of $5.3 billion, is a diversified,
worldwide manufacturer of electrical products, tools and hardware, and
automotive products. Additional information about Cooper is available on the
company's World Wide Web site: www.cooperindustries.com.
# # #
