SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
FEDERAL SIGNAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 36-1063330
(State of incorporation or organization) (I.R.S. Employer
Identification No.)
1415 W. 22nd Street Oak Brook, Illinois 60523
(Address of principal executive office) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange
Title of each Class on which each class
to be so registered is to be registered
Preferred Share Purchase Rights New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of class)
Item 1. Description of Registrant's Securities to be Registered
On July 9, 1998, the Board of Directors of Federal Signal
Corporation (the "Company") declared a dividend distribution of one
preferred share purchase right (a "Right") for each outstanding
share of common stock, par value $1.00 per share (the "Common
Shares"), of the Company. The dividend is payable as of the Close
of Business on August 18, 1998 to shareholders of record on that
date. Each Right entitles the registered holder to purchase from
the Company one one-hundredth of a share of a Series A Preferred
Stock, $1.00 par value, of the Company (the "Preferred Shares") at
a price of $100 per one one-hundredth of a Preferred Share (the
"Purchase Price"), subject to adjustment. The description and terms
of the Rights are set forth in a Rights Agreement (the "Rights
Agreement") dated as of July 9, 1998 between the Company and Harris
Trust and Savings Bank, as Rights Agent (the "Rights Agent").
Until the earlier to occur of (i) 10 days following a
public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") acquired or obtained the
right to acquire, beneficial ownership of 20% or more of the
outstanding Common Shares or (ii) 10 days following the
commencement or announcement of an intention to make a tender offer
or exchange offer the consummation of which would result in the
beneficial ownership by a person or group of 30% or more of such
outstanding Common Shares (the earlier of such dates being called
the "Distribution Date"), the Rights will be evidenced, with
respect to any of the Common Share certificates outstanding as of
August 18, 1998, by such Common Share certificate with a copy of
this Summary of Rights attached thereto. The Rights Agreement
provides that, until the Distribution Date, the Rights will be
transferred with and only with the Common Shares. Until the
Distribution Date (or earlier redemption or expiration of the
Rights), new Common Share certificates issued after the Close of
Business on August 18, 1998 upon transfer or new issuance of the
Common Shares will contain a notation incorporating the Rights
Agreement by reference. Until the Distribution Date (or earlier
redemption or expiration of the Rights), the surrender for transfer
of any certificates for Common Shares, outstanding as of the Close
of Business on August 18, 1998, even without such notation or a
copy of this Summary of Rights being attached thereto, will also
constitute the transfer of the Rights associated with the Common
Shares represented by such certificate. As soon as practicable
following the Distribution Date, separate certificates evidencing
the Rights ("Right Certificates") will be mailed to holders of
record of the Common Shares as of the close of business on the
Distribution Date and such separate Right Certificates alone will
then evidence the Rights.
As of July 9, 1998, there were 46,612,290 shares of Common
Stock outstanding and 2,172,814 shares of common stock reserved for
issuance pursuant to employee benefit plans. 500,000 shares of
Preferred Stock have been reserved for issuance upon exercise of
the Rights.
The Rights are not exercisable until the Distribution Date.
The Rights will expire on after the Close of Business on August 18,
1998, unless earlier redeemed by the Company as described below.
The Purchase Price payable, and the number of Preferred
Shares or other securities or property issuable, upon exercise of
the Rights are subject to adjustment from time to time to prevent
dilution (i) in the event of a stock dividend on, or a subdivision,
combination or reclassification of the Preferred Shares, (ii) upon
the grant to holders of the Preferred Shares of certain rights or
warrants to subscribe for or purchase Preferred Shares at a price,
or securities convertible into Preferred Shares with a conversion
price, less than the current market price of the Preferred Shares
or (iii) upon the distribution to holders of the Preferred Shares
of evidences of indebtedness or assets (excluding regular periodic
cash dividends out of earnings or retained earnings or dividends
payable in Preferred Shares) or of subscription rights or warrants
(other than those referred to above).
The number of outstanding Rights and the number of one
one-hundredths of a Preferred Share issuable upon exercise of each
Right are also subject to adjustment in the event of a stock split
of the Common Shares or a stock dividend on the Common Shares
payable in Common Shares or subdivisions, consolidations or
combinations of the Common Shares occurring, in any such case,
prior to the Distribution Date.
Each Preferred Share will be entitled to a minimum
preferential quarterly dividend payable of $25 per share but will
be entitled to an aggregate dividend of 100 times the dividend
declared per Common Share. In the event of liquidation, the holders
of the Preferred Shares will be entitled to a minimum preferential
liquidation payment of $100 per share but will be entitled to an
aggregate payment of 100 times the payment made per Common Share.
Each Preferred Share will have one hundred votes, voting together
with the Common Shares. Finally, in the event of any merger,
consolidation or other transaction in which Common Shares are
exchanged, each Preferred Share will be entitled to receive 100
times the amount received per Common Share. These rights are
protected by customary antidilution provisions.
In the event that the Company is acquired in a merger or
other business combination transaction or 50% or more of its
consolidated assets or earning power is sold, proper provision will
be made so that each holder of a Right will thereafter have the
right to receive, upon the exercise thereof at the then current
exercise price of the Right, that number of shares of common stock
of the acquiring company which at the time of such transaction
would have a market value of two times the exercise price of the
Right. In the event that the Company were the surviving corporation
in a merger and the Common Shares were not changed or exchanged, or
in the event that an Acquiring Person engages in one of a number of
self-dealing transactions specified in the Rights Agreement, proper
provision will be made so that each holder of a Right, other than
Rights that were beneficially owned by the Acquiring Person on the
earlier of the Distribution Date or the date an Acquiring Person
acquires 20% or more of the outstanding Common Shares (which will
thereafter be void), will thereafter have the right to receive upon
exercise that number of Common Shares having a market value of two
times the exercise price of the Right.
With certain exceptions, no adjustment in the Purchase
Price will be required until cumulative adjustments require an
adjustment of at least 1% in such Purchase Price. No fractional
Preferred Shares will be issued (other than fractions which are
integral multiples of one one-hundredth of a Preferred Share, which
may, at the election of the Company, be evidenced by depository
receipts) and in lieu thereof, an adjustment in cash will be made
based on the market price of the Preferred Shares on the last
trading date prior to the date of exercise.
The Board of Directors, under certain circumstances, is
entitled to redeem the Rights at $.10 per Right (payable in cash or
Common Shares) at any time prior to the expiration of 20 days
(subject to extension by the Board of Directors) following the
public announcement that a 20% position has been acquired.
Immediately upon the action of the Board of Directors ordering
redemption of the Rights, the right to exercise the Rights will
terminate and the only right of the holders of Rights will be to
receive the Redemption Price.
The terms of the Rights generally may be amended by the
Board of Directors of the Company without the consent of the
holders of the Rights except that no such amendment may adversely
affect the interests of the holders of the Rights.
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.
A copy of the Rights Agreement is available free of charge
from the Company. This summary description of the Rights does not
purport to be complete and is qualified in its entirety by
reference to the Rights Agreement, which is hereby incorporated
herein by reference.
The foregoing description of the Rights and the Preferred
Stock is qualified by reference to the Rights Agreement which is
attached as Exhibit A hereto and incorporated herein by reference
Item 2. Exhibits
(1) Rights Agreement, dated as of July 9, 1998, between
Federal Signal Corporation and Harris Trust and
Savings Bank. The Rights Agreement includes the form
of Certificate of Designation, Preferences and Rights
of the Preferred Stock as Exhibit A thereto and the
form of Right Certificate as Exhibit B thereto.
Pursuant to the Rights Agreement, printed Right
Certificates will not be mailed until 10 days after
the date of a public announcement that a person or
group has announced, or has made, a tender offer or
exchange offer for 30% or more of the Common Stock.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this
registration statement to be signed on its behalf by the
undersigned, thereto duly authorized.
Date: July 28, 1998 FEDERAL SIGNAL CORPORATION
By:_______________________
Kim A. Wehrenberg
Vice President, General Counsel
<PAGE>
RIGHTS AGREEMENT
Agreement, dated as of July 9, 1998, between Federal Signal
Corporation, a Delaware corporation (the "Company"), and Harris Trust and
Savings Bank, a national banking association, (the "Rights Agent").
The Board of Directors of the Company has authorized and declared a
dividend of one preferred share purchase right (a "Right") for each
Common Share (as hereinafter defined) of the Company outstanding as of
the Close of Business on August 18, 1998, each Right representing the
right to purchase one one-hundredth of a share of Series A Preferred
Stock, $1.00 par value per share, of the Company having the rights and
preferences set forth in the form of Certificate of Designation,
Preferences and Rights attached hereto as Exhibit A, upon the terms and
subject to the conditions herein set forth, and has further authorized
the issuance of one Right with respect to each Common Share that shall
become outstanding between August 18, 1998 and the earliest of the
Distribution Date, the Redemption Date and the Final Expiration Date (as
such terms are hereinafter defined).
Accordingly, 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 (as such term is
hereinafter defined) who or which, together with all Affiliates and
Associates (as such terms are hereinafter defined) of such Person,
shall be the Beneficial Owner (as such term is hereinafter defined)
of 20% or more of the Common Shares then outstanding, but shall not
include the Company, any wholly-owned Subsidiary (as such term is
hereinafter defined) of the Company or any employee benefit plan of
the Company or any Subsidiary of the Company, or any entity holding
Common Shares for or pursuant to the terms of any such plan.
(b) "Affiliate," "Associate" and "Control" 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 (the "Exchange Act"), as in effect on July 9, 1998.
(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 beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person's Affiliates
or Associates has (A) the right to acquire (whether such right
is exercisable immediately or only after the passage of time)
pursuant to any agreement, arrangement or understanding, or
upon the exercise of conversion rights, exchange rights, rights
(other than these Rights), warrants or options, or otherwise;
provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, securities
tendered pursuant to a tender or exchange offer made by or on
behalf of such Person or any of such Person's Affiliates or
Associates until such tendered securities are accepted for
purchase or exchange; or (B) the right to vote pursuant to any
agreement, arrangement or understanding; provided, however,
that a Person shall not be deemed the Beneficial Owner of, or
to beneficially own, any security under this Section
1(c)(ii)(B) if the agreement, arrangement or understanding to
vote such security (1) arises solely from a revocable proxy or
consent given to such Person in response to a public proxy or
consent solicitation made pursuant to, and in accordance with,
the applicable rules and regulations of the Exchange Act and
(2) is not also then reportable 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 for the purpose of acquiring, holding, voting
(except to the extent contemplated by the proviso to Section
1(c)(ii)(B)) or disposing of any securities of the Company.
(d) "Business Day" shall mean any day other than a Saturday,
Sunday, or a day on which banking institutions in the State of
Illinois 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.,
Chicago time, on such date; provided, however, that if such date is
not a Business Day it shall mean 5:00 P.M., Chicago time, on the
next succeeding Business Day.
(f) "Common Shares" when used with reference to the Company (or
without express reference to another Person) shall mean the shares
of Common Stock, par value $1.00 per share, of the Company or any
other shares of capital stock of the Company into which the Common
Shares are reclassified or changed. "Common Shares" when used with
reference to any Person other than the Company shall mean the
capital stock (or other equity or beneficial interest) of such other
Person with the greatest aggregate voting power.
(g) "Distribution Date" shall have the meaning set forth in
Section 3(a) hereof.
(h) "Final Expiration Date" shall have the meaning set forth in
Section 7(a) hereof.
(i) "Person" shall mean any individual, firm, corporation or
other entity, and shall include any successor (by merger or
otherwise) of such entity.
(j) "Preferred Shares" shall mean the shares of Series A
Preferred Stock, $1.00 par value per share, of the Company.
(k) "Redemption Date" shall have the meaning set forth in
Section 7(a) hereof.
(l) "Shares Acquisition Date" shall mean the first date of
public announcement by the Company or an Acquiring Person that an
Acquiring Person has become such.
(m) "Subsidiary" of any Person shall mean any corporation or
other entity of which a majority of the voting power of the voting
equity securities or equity or other beneficial interests is owned,
directly or indirectly, by such Person or which is otherwise
Controlled by such Person.
(n) "Tender Offer" shall mean a tender or exchange offer made
in accordance with the provisions of the Exchange Act and the rules
and regulations thereunder, including the payment of applicable
fees, announcement of a tender offer and the dissemination of tender
offer materials (as those terms are defined respectively in such
regulations), which the Board of Directors of the Company or the
Executive Committee or other duly authorized committee of such Board
shall not have determined to be frivolous or not made in good faith;
any such determination made promptly and in good faith to be
conclusive for the purposes of this Agreement.
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 Shares) 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. Issuance of Right Certificates.
(a) Until the earlier of (i) the Close of Business on the tenth
day after the Shares Acquisition Date or (ii) the Close of Business
on the tenth day after the date of the commencement of a Tender
Offer by any Person (other than the Company, any wholly-owned
Subsidiary of the Company, or any employee benefit plan of the
Company or of any wholly-owned Subsidiary of the Company or any
entity holding Common Shares for or pursuant to the terms of any
such plan) or the public announcement of the intention to commence a
Tender Offer the consummation of which offer would result in
beneficial ownership by a Person of 30% or more of the outstanding
Common Shares (including any such date which is after the date of
this Agreement and prior to the issuance of the Rights; the earlier
of such dates described in clauses (i) and (ii) above being herein
referred to as the "Distribution Date"), (x) the Rights will be
evidenced (subject to the Sections 3(b) and (c)) by the certificates
for Common Shares registered in the names of the holders thereof
(which certificates shall also be deemed to be Right certificates)
and not by separate Right certificates, and (y) the Rights will be
transferable only in connection with the transfer of the underlying
Common Shares. As soon as practicable after the Distribution Date,
the Rights Agent will, at the expense of the Company send by
first-class,
insured, postage-prepaid mail, to each record holder of Common Shares as
of the Close of Business on the Distribution Date, at the address of such
holder shown on the records of the Company, a Right certificate, in
substantially the form of Exhibit B hereto a "Right Certificate"),
evidencing one Right for each Common Share so held, subject to adjustment
as provided herein. As of the Distribution Date, the Rights will be
evidenced solely by such Right Certificates.
(b) As soon as practicable after August 18, 1998, the Company will
send a copy of a Summary of Rights to Purchase Preferred Shares, in
substantially the form of Exhibit C hereto (the "Summary of Rights"), by
first-class, postage-prepaid mail, to each record holder of Common Shares
as of the Close of Business on August 18, 1998, at the address of such
holder shown on the records of the Company. With respect tocertificates
for Common Shares outstanding as of August 18, 1998, until the
Distribution Date, the Rights will be evidenced by such certificates for
Common Shares registered in the names of the holders thereof together
with a copy of the Summary of Rights. Until the Distribution Date (or the
earlier of the Redemption Date or Final Expiration Date), the surrender
for transfer of any certificate for Common Shares outstanding on August
18, 1998, with or without a copy of the Summary of Rights attached
thereto, shall also constitute the transfer of the Rights associated with
the Common Shares represented thereby.
(c) Certificates issued for Common Shares which certificates become
outstanding after August 18, 1998 but prior to the earliest of the
Distribution Date, the Redemption Date and the Final Expiration Date
shall be deemed to be certificates for Rights and shall have impressed
on, printed on, written on or otherwise affixed to them the following
legend:
This certificate also evidences and entitles the holder hereof
to certain Rights as set forth in a Rights Agreement between
Federal Signal Corporation and Harris Trust and Savings Bank,
dated as of July 9, 1998 (the "Rights Agreement"), the terms of
which are hereby incorporated herein by reference and a copy of
which is on file at the principal executive offices of Federal
Signal Corporation. 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. Federal Signal Corporation will mail to the holder
of this certificate a copy of the Rights Agreement without
charge after receipt of a written request therefor. Under
certain circumstances, Rights beneficially owned by Acquiring
Persons or any Affiliates or Associates thereof (as such terms
are defined in the Rights Agreement) may become null and void.
With respect to such certificates containing the foregoing legend,
until the Distribution Date, the Rights associated with the Common
Shares represented by such certificates shall be evidenced by such
certificates alone and registered holders of such Common Shares
shall also be the registered holders of the associated Rights, and
the surrender for transfer of any such certificate shall also
constitute the transfer of the Rights associated with the Common
Shares represented thereby.
Section 4. Form of Right Certificates. The Right Certificates (and
the forms of election to purchase shares and of assignment and
certificates to be printed on the reverse thereof) shall be substantially
the same as 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 23 hereof, the Right Certificates, whenever issued,
shall be dated as of August 18, 1998, and on their face shall entitle the
holders thereof to purchase such number of one one-hundredths of a
Preferred Share as shall be set forth therein at the price per one
one-hundredth of a Preferred Share set forth therein (the "Purchase
Price"), but the number of such shares and the Purchase Price shall be
subject to adjustment as provided herein.
Section 5. Countersignature and Registration. The Right Certificates
shall be executed on behalf of the Company by its President and Chief
Executive Officer or any Vice President, and shall be attested by the
Secretary or an Assistant Secretary of the Company, in all cases either
manually or by facsimile signature, and shall have affixed thereto the
Company's seal or a facsimile thereof. The Right Certificates shall be
manually countersigned by the Rights Agent and shall not be valid for any
purpose unless so countersigned. In case any officer of the Company who
shall have signed any of the Right Certificates shall cease to be such
officer of the Company before countersignature by the Rights Agent and
issuance and delivery by the Company, such Right 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 Right Certificates had not ceased to be such
officer of the Company; and any Right Certificate may be signed on behalf
of the Company by any person who, at the actual date of the execution of
such Right Certificate, shall be a proper officer of the Company to sign
such Right Certificate, although at the date of the execution of this
Rights Agreement any such person was not such an officer.
Following the Distribution Date, the Rights Agent will keep or cause
to be kept, at its principal offices, books for registration and transfer
of the Right Certificates issued hereunder. Such books shall show the
names and addresses of the respective holders of the Right Certificates,
the number of Rights evidenced on its face by each of the Right
Certificates, the number of each Right Certificate and the date of each
of the Right Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates.
Subject to the provisions of 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 earlier of the Redemption Date or the Final Expiration
Date (as such terms are defined in Section 7 hereof), any Right
Certificate or Right Certificates may be transferred, split up, combined
or exchanged for another Right Certificate or Right Certificates,
entitling the registered holder to purchase a like number of Preferred
Shares as the Right Certificate or Right Certificates surrendered then
entitled such holder to purchase. Any registered holder desiring to
transfer, split up, combine or exchange any Right Certificate shall make
such request in writing delivered to the Rights Agent, and shall
surrender the Right Certificate or Right Certificates to be transferred,
split up, combined or exchanged at the principal office 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 Right Certificate until the
registered holder shall have completed and signed the certificate
contained in the form of assignment on the reverse side of such Right
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 countersign and deliver to the person
entitled thereto a Right Certificate or Right 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 Right
Certificates.
Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or
mutilation of a Right Certificate, and, in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to them,
and, at the Company's request, 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 Right Certificate
if mutilated, the Company will make and deliver a new Right Certificate
of like tenor to the Rights Agent for delivery to the registered owner in
lieu of the Right Certificate so lost, stolen, destroyed or mutilated.
<PAGE>
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights.
(a) The Rights shall not be exercisable prior to the
Distribution Date. The registered holder of any Right Certificate
may exercise the Rights evidenced thereby (except as otherwise
provided herein) in whole or in part at any time after the
Distribution Date upon surrender of the Right Certificate, with the
form of election to purchase and certificate on the reverse side
thereof duly executed, to the Rights Agent at the principal office
of the Rights Agent designated for such purpose, together with
payment of the Purchase Price for each one one-hundredth of a
Preferred Share as to which the Rights are exercised, at or prior to
the earlier of (i) the Close of Business on August 18, 1998 (the
"Final Expiration Date"), or (ii) the time at which the Rights are
redeemed as provided in Section 24 hereof (the "Redemption Date").
(b) The Purchase Price for each one one-hundredth of a
Preferred Share pursuant to the exercise of a Right shall initially
be $100, shall be subject to adjustment from time to time as
provided in Sections 11 and 13 hereof and shall be payable in lawful
money of the United States of America in accordance with paragraph
(c) below.
(c) Upon receipt of a Right Certificate representing
exercisable Rights, with the form of election to purchase duly
executed, accompanied by payment of the Purchase Price for the
shares to be purchased and an amount equal to any applicable
transfer tax required to be paid by the holder of such Right
certificate in accordance with Section 9 hereof in cash, or by
certified check or cashier's check payable to the order of the
Company, the Rights Agent shall thereupon promptly (i)(A)
requisition from any transfer agent of the Preferred Shares (or make
available, if the Rights Agent is a transfer agent) certificates for
the number of Preferred Shares to be purchased and the Company
hereby irrevocably authorizes its transfer agent to comply with all
such requests, or (B) requisition from the depositary agent
depositary receipts representing such number of one one-hundredths
of a Preferred Share as are to be purchased (in which case
certificates for the Preferred Shares represented by such receipts
shall be deposited by the transfer agent with the depositary agent)
and the Company hereby directs the depositary agent to comply with
such request, (ii) when appropriate, requisition from the Company
the amount of cash to be paid in lieu of issuance of fractional
shares in accordance with Section 15, (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 Right
Certificate, registered in such name or names as may be designated
by such holder and (iv) when appropriate, after receipt, promptly
deliver such cash to or upon the order of the registered holder of
such Right Certificate.
(d) In case the registered holder of any Right Certificate
shall exercise less than all the Rights evidenced thereby, a new
Right Certificate evidencing Rights equivalent to the Rights
remaining unexercised shall be issued by the Rights Agent to the
registered holder of such Right Certificate or to his duly
authorized assigns, subject to the provisions of Section 15 hereof.
Section 8. Cancellation and Destruction of Right Certificates. All
Right Certificates surrendered for the purpose of exercise, transfer,
split up, combination or exchange shall, if surrendered to the Company or
to 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 Right Certificates shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Rights Agreement. The Company shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall so cancel and
retire, any other Right Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights Agent shall deliver
all cancelled Right Certificates to the Company, or shall, at the written
request of the Company, destroy such cancelled Right Certificates, and in
such case shall deliver a certificate of destruction thereof to the
Company.
Section 9. Reservation and Availability of Preferred Shares. The
Company covenants and agrees that it will cause to be reserved and kept
available out of its authorized and unissued Preferred Shares or any
Preferred Shares held in its treasury the number of Preferred Shares that
will be sufficient to permit the exercise in full of all outstanding
Rights.
So long as the Preferred Shares issuable upon the exercise of 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.
The Company covenants and agrees that it will take all such action
as may be necessary to ensure that all Preferred Shares delivered upon
exercise of Rights shall, at the time of delivery of the certificates for
such Preferred Shares (subject to payment of the Purchase Price), be duly
and validly authorized and issued and fully paid and nonassessable
shares.
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 Right
Certificates or of any Preferred Shares 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 Right Certificates
to a Person other than, or the issuance or delivery of certificates or
depositary receipts for the Preferred Shares in a name other than that
of, the registered holder of the Right Certificate evidencing Rights
surrendered for exercise or to issue or deliver any certificates or
depositary receipts for Preferred Shares upon the exercise of any Rights
until any such tax shall have been paid (any such tax being payable by
the holder of such Right 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 Shares Record Date. Each Person in whose name
any certificate for Preferred Shares is issued upon the exercise of
Rights shall for all purposes be deemed to have become the holder of
record of the Preferred Shares represented thereby on, and such
certificate shall be dated, the date upon which the Right Certificate
evidencing such Rights was duly surrendered and payment of the Purchase
Price (and any applicable transfer taxes) was made; provided, however,
that if the date of such surrender and payment is a date upon which the
Preferred Shares transfer books of the Company are closed, such Person
shall be deemed to have become the record holder of such shares on, and
such certificate shall be dated, the next succeeding Business Day on
which the Preferred Shares transfer books of the Company are open. Prior
to the exercise of the Rights evidenced thereby, the holder of a Right
Certificate, as such, shall not be entitled to any rights of a holder of
Preferred 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 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
Shares payable in Preferred Shares, (B) subdivide the outstanding
Preferred Shares, (C) combine the outstanding Preferred Shares into
a smaller number of Preferred Shares or (D) issue any shares of its
capital stock in a reclassification of the Preferred Shares
(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), 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 capital stock issuable on such date, shall be proportionately
adjusted so that the holder of any Right exercised after such time
shall be entitled to receive the aggregate number and kind of shares
of capital stock which, if such Right had been exercised immediately
prior to such date and at a time when the Preferred Shares transfer
books of the Company were open, he would have owned upon such
exercise and been entitled to receive by virtue of such dividend,
subdivision, combination or reclassification. If an event occurs
which would require an adjustment under both this Section 11(a)(i)
and Section 11(a)(ii), 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).
(ii) In the event
A. any Acquiring Person or any Associate or Affiliate of
any Acquiring Person, at any time after the date of this
Agreement, directly or indirectly, (1) shall consolidate with
or merge into the Company or any of its Subsidiaries or
otherwise combine with the Company or any of its Subsidiaries
and the Company or such Subsidiary shall be the continuing or
surviving corporation of such consolidation, merger or
combination and the Common Shares of the Company shall remain
outstanding and not changed into or exchanged for stock or
other securities of any other Person or the Company or cash or
any other property, (2) shall, in one or more transactions,
other than in connection with the exercise of Rights or in
connection with the exercise or conversion of securities
exchangeable or convertible into capital stock of the Company
or any of its Subsidiaries, transfer any assets to the Company
or any of its Subsidiaries in exchange (in whole or in part)
for shares of any class of capital stock of the Company or any
of its Subsidiaries or for securities exercisable for or
convertible into shares of any class of capital stock of the
Company or any of its Subsidiaries or otherwise obtain from the
Company or any of its Subsidiaries, with or without
consideration, any additional shares of any class of capital
stock of the Company or any of its Subsidiaries or securities
exercisable for or convertible into shares of any class of
capital stock of the Company or any of its Subsidiaries (other
than as a part of a pro rata distribution to all holders of
such shares of any class of capital stock of the Company or any
of its Subsidiaries), (3) shall sell, purchase, lease,
exchange, mortgage, pledge, transfer or otherwise dispose of or
acquire (in one or more trans-actions), to, from, or with, as
the case may be, the Company or any of its Subsidiaries, assets
(including securities) on terms and conditions less favorable
to the Company than the Company would be able to obtain in
arm's-length negotiation with an unaffiliated third party, (4)
shall receive any compensation from the Company or any of its
Subsidiaries other than compensation for full-time employment
as a regular employee or for services as a director at rates in
accordance with the Company's (or its Subsidiaries') past
practices, or (5) shall receive the benefit, directly or
indirectly (except proportionately as a stockholder), of any
loans, advances, guarantees, pledges or other financial
assistance or any tax credits or other tax advantage provided
by the Company or any of its Subsidiaries, or
B. during such time as there is an Acquiring Person, there
shall be any reclassification of securities (including any
reverse stock split), or recapitalization of the Company, or
any merger or consolidation of the Company with any of its
Subsidiaries or any other transaction or series of transactions
involving the Company or any Subsidiaries of the Company
(whether or not with or into or otherwise involving an
Acquiring Person) which has the effect, directly or indirectly,
of increasing by more than 1% the proportionate share of the
outstanding shares of any class of equity securities or of
securities exercisable for or convertible into securities of
the Company or any of its Subsidiaries which is directly or
indirectly owned beneficially by any Acquiring Person or any
Associate or Affiliate of any Acquiring Person, then, and in
each such case, proper provision shall be made so that each
holder of a Right, except as provided below, shall thereafter
have a right to receive, upon exercise thereof at an aggregate
exercise price equal to the then current Purchase Price times
the number of one one-hundredths of a Preferred Share for which
such Right is then exercisable (without giving any effect to
the adjustment called for below in this sentence), in
accordance with the terms of this Agreement, in lieu of
Preferred Shares, such number of Common Shares as shall equal
the result obtained by (x) multiplying the then current
Purchase Price by the number of one one-hundredths of a
Preferred Share for which a Right is then exercisable and
dividing that product by (y) 50% of the current per share
market price of the Common Shares (determined pursuant to
Section 11(d)) on the fifth day after the earlier of the date
of the occurrence or the date of the first public announcement
of the applicable event listed above in this Section 11(a)(ii);
provided, however, that if the transaction that would otherwise
give rise to the foregoing adjustment is also subject to the
provisions of Section 13 hereof, then only the provisions of
Section 13 hereof shall apply and no adjustment shall be made
pursuant to this Section 11(a)(ii).
Notwithstanding the foregoing, upon the occurrence of any of the
events listed above in this Section 11(a)(ii), any Rights that are or
were on or after the earlier of the Distribution Date or the Shares
Acquisition Date beneficially owned by an Acquiring Person (or any
Associate or Affiliate of such Acquiring Person) shall become void and
any holder of such Rights shall thereafter have no right to exercise such
Rights under any provision of this Agreement. Any Right Certificate
issued pursuant to Section 3 hereof that represents Rights beneficially
owned by an Acquiring Person or any Associate or Affiliate thereof and
any Right Certificate issued at any time upon the transfer of any Rights
to an Acquiring Person or any Associate or Affiliate thereof or to any
nominee of such Acquiring Person, Associate or Affiliate, and any Right
Certificate issued pursuant to Section 6, 7(d) or 23 hereof or this
Section 11 upon transfer, exchange, replacement or adjustment of any
other Right Certificate referred to in this sentence, shall contain the
following legend:
The Rights represented by this Right Certificate were issued to
a Person who was an Acquiring Person or an Affiliate or an
Associate of an Acquiring Person (as such terms are defined in
the Rights Agreement). This Right Certificate and the Rights
represented hereby may become void in the circumstances
specified in Section 11(a)(ii) of the Rights Agreement.
(iii) In the event that there shall not be sufficient
issued but not outstanding, or authorized but unissued, Common
Shares to permit the exercise in full of the Rights in
accordance with Section 11(a)(ii), the Company shall take all
such action as may be necessary to authorize additional Common
Shares for issuance upon exercise of the Rights and shall not
consummate any of the transactions described in such Section
11(a)(ii) unless and until such additional Common Shares have
been authorized.
(b) In case the Company shall fix a record date for the
issuance of rights, options or warrants to all holders of Preferred
Shares entitling them (for a period expiring within 45 calendar days
after such record date) to subscribe for or purchase Preferred
Shares or shares having the same rights, privileges and preferences
as Preferred Shares ("equivalent preferred shares") (or securities
convertible into Preferred Shares or equivalent preferred shares) at
a price per Preferred Share or equivalent preferred share (or having
a conversion price per share, if a security convertible into
Preferred Shares or equivalent preferred shares) less than the then
current per share market price of the Preferred Shares (as defined
in Section 11(d)) 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 Preferred
Shares outstanding on such record date plus the number of Preferred
Shares which the aggregate offering price of the total number of
Preferred Shares and/or equivalent preferred shares so to be offered
(and/or the aggregate initial conversion price of the convertible
securities so to be offered) would purchase at such current market
price and the denominator of which shall be the number of Preferred
Shares outstanding on such record date plus the number of additional
Preferred Shares and/or equivalent preferred shares to be offered
for subscription or purchase (or into which the convertible
securities so to be offered are initially convertible). In case such
subscription price may be paid in a consideration part or all of
which shall 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. Preferred Shares owned by
or held for the account of the Company shall not be deemed
outstanding for the purpose of any such computation. Such adjustment
shall be made successively whenever such a record date is fixed; and
in the event that such rights or warrants are not so issued, the
Purchase Price shall be adjusted to be the Purchase Price which
would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for the making
of a distribution to all holders of the Preferred Shares (including
any such distribution made in connection with a consolidation or
merger in which the Company is the continuing or surviving
corporation) of evidences of indebtedness or assets (other than a
regular periodic cash dividend or a dividend payable in Preferred
Shares) or subscription rights or warrants (excluding those referred
to in Section 11(b)), 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 per share market price of
the Preferred shares (as defined in Section 11(d)) 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 assets or evidences of indebtedness so to be distributed or
of such subscription rights or warrants applicable to one Preferred
Share and the denominator of which shall be such current per share
market price of the Preferred Shares. 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
again be adjusted to be the Purchase Price which would then be in
effect if such record date had not been fixed.
(d) (i) For the purpose of any computation hereunder, the
"current per share market price" of the Common Shares on any date
shall be deemed to be the average of the daily closing prices per
share of such Common Shares for the 30 consecutive Trading Days (as
such term is hereinafter defined) immediately prior to such date;
provided, however, that in the event that the current per share
market price of the Common Shares is determined during a period
following the announcement by the issuer of such Common Shares of
(A) a dividend or distribution on such Common Shares payable in such
Common Shares or securities convertible into such Common Shares, or
(B) any subdivision, combination or reclassification of such Common
Shares and prior to the expiration of 30 Trading Days after the
ex-dividend date for such dividend or distribution, or the record
date for such subdivision, combination or reclassification, then,
and in each such case, the current market price shall be
appropriately adjusted to reflect the current market price per
Common Share equivalent. The closing price for each day shall be the
last sale price, regular way, or, in case no such sale takes place
on such day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities
listed or admitted to trading on the New York Stock Exchange or, if
the Common Shares are not listed or admitted to trading on the New
York Stock Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities listed on
the principal national securities exchange on which the Common
Shares are listed or admitted to trading or, if the Common Shares
are not listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the average of
the high bid and low asked prices in the over-the-counter market, as
reported by the National Association of Securities Dealers, Inc.
Automated Quotations System ("NASDAQ") or such other system then in
use, or, if on any such date the Common Shares are not quoted by any
such organization, the average of the closing bid and asked prices
as furnished by a professional market maker making a market in the
Common Shares selected by the Board of Directors of the Company. If
on any such date no market maker is making a market in the Common
Shares, the fair value of such shares on such date as determined in
good faith by the Board of Directors of the Company shall be used
and shall be conclusive for all purposes. The term "Trading Day"
shall mean a day on which the principal national securities exchange
on which the Common Shares are listed or admitted to trading is open
for the transaction of business or, if the Common Shares are not
listed or admitted to trading on any national securities exchange, a
Business Day. If the Common Shares are not publicly held or not so
listed or traded, "current per share market price" 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.
(ii) For the purpose of any computation hereunder, the
"current per share market price" of the Preferred Shares shall
be determined in the same manner as set forth above for Common
Shares in Section 11(d)(i) including, without limitation, by a
good faith determination by the Board of Directors of the
Company if the Preferred Shares are not publicly held or not so
listed or traded. Any such determination by the Board of
Directors of the Company shall be described in a statement
filed with the Rights Agent and shall be conclusive for all
purposes.
(e) No adjustment in the Purchase Price shall be required
unless such adjustment would require an increase or decrease of at
least 1% in such price; provided, however, that any adjustments
which by reason of this Section 11(e) are not required to be made
shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 11 shall be made to
the nearest cent or to the nearest ten-thousandth of a Common Share
or other share or one-millionth of a Preferred Share as the case may
be. Notwithstanding the first sentence of this Section 11(e), any
adjustment required by this Section 11 shall be made no later than
the earliest of (i) three years from the date of the transaction
which requires such adjustment, (ii) the Redemption Date or (iii)
the Final Expiration Date.
(f) If, as a result of an adjustment made pursuant to Section
11(a), the holder of any Right thereafter exercised shall become
entitled to receive any shares of capital stock of the Company other
than Preferred Shares, thereafter the number of such other shares so
receivable upon exercise of any Right 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 Shares
contained in Section 11(a) through (c), inclusive, and the
provisions of Sections 7, 9, 10 and 13 hereof with respect to the
Preferred Shares shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent to
any adjustment made to the Purchase Price hereunder shall evidence
the right to purchase, at the adjusted Purchase Price, the number of
one one-hundredths of a Preferred Share purchasable from time to
time hereunder upon exercise of the Rights, all subject to further
adjustment as provided herein.
(h) Unless the Company shall have exercised its election as
provided in Section 11(i), upon each adjustment of the Purchase
Price as a result of the calculations made in Sections 11(b) and
(c), each Right outstanding immediately prior to the making of such
adjustment shall thereafter evidence the right to purchase, at the
adjusted Purchase Price, that number of one one-hundredths of a
Preferred Share (calculated to the nearest one one-millionth of a
Preferred Share) obtained by (i) multiplying (x) the number of one
one-hundredths of a Preferred 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
substitution for any adjustment in the number of one one-hundredths
of a Preferred Share purchasable upon the exercise of a Right. Each
of the Rights outstanding after such adjustment of the number of
Rights shall be exercisable for the number of one one-hundredths of
a Preferred Share for which a Right was exercisable immediately
prior to such adjustment. Each Right held of record prior to such
adjustment of the number of Rights shall become that number of
Rights (calculated to the nearest one ten-thousandth) obtained by
dividing the Purchase Price in effect immediately prior to
adjustment of the Purchase Price by the Purchase Price in effect
immediately after adjustment of the Purchase Price. The Company
shall make a public announcement of its election to adjust the
number of Rights, indicating the record date for the adjustment,
and, if known at the time, the amount of the adjustment to be made.
This record date may be the date on which the Purchase Price is
adjusted or any day thereafter, but, if the Right Certificates have
been issued, shall be at least 10 days later than the date of the
public announcement. If Right 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 Right Certificates on such
record date Right Certificates evidencing, subject to Section 15
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 Right Certificates held by such
holders prior to the date of adjustment, and upon surrender thereof,
if required by the Company, new Right Certificates evidencing all
the Rights to which such holders shall be entitled after such
adjustment. Right 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
Right 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 Preferred Share
issuable upon the exercise of the Rights, the Right Certificates
theretofore and thereafter issued may continue to express the
Purchase Price and the number of one one-hundredths of a Preferred
Share which were expressed in the initial Right Certificates issued
hereunder.
(k) Before taking any action that would cause an adjustment
reducing the purchase Price below one one-hundredth of the then par
value, if any, of the Preferred Shares 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 Preferred
Shares 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 issuing to the holder of any Right
exercised after such record date of the Preferred Shares and other
capital stock or securities of the Company, if any, issuable upon
such exercise over and above the Preferred Shares and other capital
stock or securities of the Company, if any, issuable upon such
exercise on the basis of the Purchase Price in effect prior to such
adjustment; provided, however, that the Company shall deliver to
such holder a due bill or other appropriate instrument evidencing
such holder's right to receive such additional shares 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 it
in its sole discretion shall determine to be advisable in order that
any consolidation or subdivision of the Preferred Shares, issuance
wholly for cash of any of the Preferred Shares at less than the
current market price, issuance wholly for cash of Preferred Shares
or securities which by their terms are convertible into or
exchangeable for Preferred Shares, dividends on Preferred Shares
payable in Preferred Shares or issuance of rights, options or
warrants referred to hereinabove in Section 11(b), hereafter made by
the Company to holders of its Preferred Shares shall not be taxable
to such stockholders.
(n) In the event that at any time after the date of this
Agreement and prior to the Distribution Date, the Company shall (i)
declare or pay any dividend on the Common Shares payable in Common
Shares or (ii) effect a subdivision, combination or consolidation of
the Common Shares (by reclassification or otherwise than by payment
of dividends in Common Shares) into a greater or lesser number of
Common Shares, then in any such case (x) the number of one
one-hundredths of a Preferred Share purchasable after such event
upon proper exercise of each Right shall be determined by
multiplying the number of one one-hundredths of a Preferred Share so
purchasable immediately prior to such event by a fraction, the
numerator of which is the number of Common Shares outstanding
immediately before such event and the denominator of which is the
number of Common Shares outstanding immediately after such event,
and (y) each Common Share outstanding immediately after such event
shall have issued with respect to it that number of Rights which
each Common Share outstanding immediately prior to such event had
issued with respect to it. The adjustments provided for in this
Section 11(n) shall be made successively whenever such a dividend is
declared or paid or such a subdivision, combination or consolidation
is effected. If an event occurs which would require an adjustment
under Section 11(a)(ii) and this Section 11(n), the adjustments
provided for in this Section 11(n) shall be in addition and prior to
any adjustment required pursuant to Section 11(a)(ii).
Section 12. Certificate of Adjusted Purchase Price or Number of
Shares. Whenever an adjustment is made as provided in Sections 11 and 13
hereof, the Company shall promptly (a) prepare a certificate setting
forth such adjustment, and a brief statement of the facts accounting for
such adjustment, (b) file with the Rights Agent and with each transfer
agent for the Common Shares and the Preferred Shares a copy of such
certificate and (c) mail a brief summary thereof to each holder of a
Right Certificate in accordance with Section 26 hereof. The Rights Agent
shall be fully protected in relying on such Certificate and shall not be
obligated or responsible for calculating any adjustment, nor shall it be
deemed to have knowledge of any adjustment unless and until it shall have
received such Certificate.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power. (a) In the event, directly or indirectly, (1) the Company
shall consolidate with, or merge with and into, any other Person, and the
Company shall not be the continuing or surviving corporation of such
consolidation or merger, (2) any Person shall consolidate with the
Company, or merge with and into the Company and the Company shall be the
continuing or surviving corporation of such merger and, in connection
with such merger, all or part of the Common Shares shall be changed into
or exchanged for stock or other securities of any other Person (or the
Company) or cash or any other property, or (3) the Company shall sell or
otherwise transfer (or one or more of its Subsidiaries shall sell or
otherwise transfer), in one or more transactions, assets or earning power
aggregating more than 50% of the assets or earning power of the Company
and its Subsidiaries (taken as a whole) to any other Person or Persons
(other than the Company or one or more of its wholly-owned Subsidiaries),
then, and in each such case, proper provision shall be made so that (i)
each holder of a Right (except as otherwise provided herein) shall
thereafter have the right to receive, upon the exercise thereof at an
aggregate exercise price equal to the then current Purchase Price times
the number of one one-hundredths of a Preferred Share for which such
Right is then exercisable (without giving any effect to the adjustment
called for below in this sentence), in accordance with the terms of this
Agreement, such number of validly authorized and issued, fully paid and
nonassessable and freely tradeable Common Shares of the Principal Party
(as such term is hereinafter defined) free and clear of any liens,
encumbrances or other adverse claims and not subject to any rights of
call or first refusal, as shall be equal to the result obtained by (x)
multiplying the then current Purchase Price by the number of one
one-hundredths of a Preferred Share for which a Right is then exercisable
(without taking into account any adjustment previously made pursuant to
Section 11(a)(ii) hereof) and dividing that product by (y) 50% of the
current per share market price of the Common Shares of such Principal
Party (determined pursuant to Section 11(d)) on the date of consummation
of such consolidation, merger, sale or transfer; (ii) such Principal
Party shall thereafter be liable for, and shall assume, by virtue of such
consolidation, merger, sale or transfer, all the obligations and duties
of the Company pursuant to this Agreement; (iii) except for purposes of
Section 1(f) hereof the term "Company" shall thereafter be deemed to
refer to such Principal Party; and (iv) such Principal Party shall take
such steps (including, but not limited to, the reservation of a
sufficient number of its Common Shares in accordance with Section 9
hereof) in connection with such consummation as may be necessary to
assure that the provisions hereof shall thereafter be applicable, as
nearly as reasonably may be, in relation to its Common Shares thereafter
deliverable upon the exercise of the Rights.
(b) "Principal Party" shall mean:
(i) in the case of any transaction described in clause (1)
or (2) of the first sentence of Section 13(a), the Person that is
the issuer of any securities into which Common Shares of the Company
are converted in such 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
(3) 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, or, if
each Person that is a party to such transaction or transactions
receives the same portion of the assets or earning power so
transferred or if the Person receiving the greatest portion of the
assets or earning power cannot be determined, (X) whichever of such
Persons is the issuer of the Registered Common Shares (as such term
is hereinafter defined) having the greatest aggregate market value
or (Y) if no such Person has Registered Common Shares outstanding,
whichever of such Persons is the corporation having the greatest
stockholders' equity or (Z) if no such Person is a corporation,
whichever of such Persons is the entity having the greatest net
assets; provided, however, that in any such case, (1) if the Common
Shares of such Person are not at such time and have not been
continuously over the preceding twelve (12) month period registered
under Section 12 of the Exchange Act ("Registered Common Shares"),
or such Person is not a corporation, and such Person is a direct or
indirect Subsidiary of another Person which has Registered Common
Shares outstanding, "Principal Party" shall refer to such other
Person; (2) if the Common Shares of such Person are not Registered
Common Shares or such Person is not a corporation, and such Person
is a direct or indirect Subsidiary of another Person but is not a
direct or indirect Subsidiary of another Person which has Registered
Common Shares outstanding, "Principal Party" shall refer to the
ultimate parent entity of such first-mentioned Person; (3) if the
Common Shares of such Person are not Registered Common Shares or
such Person is not a corporation, and such Person is directly or
indirectly Controlled by more than one Person, and one or more of
such latter Persons have Registered Common Shares outstanding,
"Principal Party" shall refer to whichever of such latter Persons is
the issuer of the Registered Common Shares having the greatest
aggregate market value; and (4) if the Common Shares of such Person
are not Registered Common Shares or such Person is not a
corporation, and such Person is directly or indirectly Controlled by
more than one Person, and none of such latter Persons have
Registered Common Shares outstanding, "Principal Party" shall refer
to whichever ultimate parent entity is the corporation having the
greatest stockholders' equity or, if no such ultimate parent entity
is a corporation, shall refer to whichever ultimate parent entity is
the entity having the greatest net assets.
(c) Notwithstanding anything herein to the contrary, if the
Principal Party as determined pursuant to Section 13(b) above is not
a corporation, proper provision shall be made so that such Principal
Party shall create or otherwise make available for purposes of the
exercise of the Rights in accordance with the terms of this
Agreement, a type or types of securities having fair a market value
(as determined by a nationally recognized investment banking firm
selected by the Board of Directors of the Company) equal to at least
the value of the Common Shares which each holder of a Right would
have been entitled to receive if such Principal Party had been a
corporation.
(d) The Company shall not consummate any such consolidation,
merger, sale or transfer unless (1) at the time of such consummation
the Principal Party shall have sufficient Common Shares authorized
to permit the exercise in full of the Rights in accordance with this
Section 13 and (2) prior to such consummation 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
Sections 13(a), 13(b) and, if applicable, 13(c), and further
providing that, as soon as practicable after the date of any
consolidation, merger or sale or transfer of assets mentioned in
Section 13(a), the Principal Party will:
(i) prepare and file a registration statement under the
Securities Act of 1933, as amended (the "Securities Act"), with
respect to the Rights and the securities purchasable upon
exercise of the Rights on an appropriate form, and will use its
best efforts to cause such registration statement to (A) become
effective as soon as practicable after such filing and (B)
remain effective (with a prospectus at all times meeting the
requirements of the Securities Act) until the earlier of the
Redemption Date or the Final Expiration Date, and similarly
comply with applicable state securities laws; and
(ii) deliver to holders of the Rights historical financial
statements for the Principal Party and each of its
Affiliates which comply in all respects with the
requirements for registration on Form 10 under the
Exchange Act.
(e) The provisions of this Section 13 shall similarly apply to
successive mergers or consolidations or sales or other transfers.
Section 14. Additional Covenants.
(a) Except as expressly provided herein, no adjustment to the
Purchase Price, the number of Preferred Shares (or fractions of a
share) for which a Right is exercisable or the number of Rights
outstanding (except as permitted by Section 24 hereof) or any
similar adjustment shall be made or be effective if such adjustment
would have the effect of reducing or limiting the benefits the
holders of the Rights would have had absent such adjustment,
including, without limitation, the benefits under Section 11(a)(ii)
and Section 13 hereof, unless the terms of this Agreement are
amended so as to preserve such benefits.
(b) The Company covenants and agrees that, following the
earlier of the Shares Acquisition Date or the Distribution Date,
except as permitted by Sections 24 and 27 hereof, it shall not,
directly or indirectly, take any action the purpose or effect of
which is to eliminate or otherwise diminish in any material respect
the benefits intended to be afforded by the Rights.
(c) The Company covenants and agrees that it shall not
consummate any of the transaction described in Section 11(a)(ii)
hereof or clauses (1), (2) and (3) of the first sentence of Section
13(a) hereof if (i) at the time of or after such consummation there
would be any charter or by-law provisions or any rights, warrants or
other instruments or securities outstanding or agreements in effect
or any other action taken the purpose or effect of which is to
eliminate or otherwise diminish in any material respect the benefits
intended to be afforded by the Rights or (ii) in the case of a
transaction covered by Section 13(a) hereof, the stockholders of the
Principal Party shall have received, either prior to, simultaneously
with, or after the consummation of such transaction, a distribution
of Rights previously owned by the Principal Party or any of its
Affiliates and Associates.
(d) The Company further covenants and agrees that it shall not
consummate any of the transactions described in clauses (1), (2) and
(3) of the first sentence of Section 13(a) hereof unless prior
thereto the Company and the Principal Party shall have executed and
delivered to the Rights Agent a supplemental agreement evidencing
compliance with Section 14(c) above and further providing that the
Principal Party covenants and agrees that it shall not, directly or
indirectly, take any action the purpose or effect of which is to
eliminate or otherwise diminish in any material respect the benefits
intended to be afforded by the Rights. The provisions of this
Section 14(d) and Section 14(c) above shall similarly apply to
successive mergers, consolidations, sales or other transfers.
Section 15. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of
Rights or to distribute Right Certificates which evidence fractional
Rights. In lieu of such fractional Rights, there shall be paid to
the registered holders of the Right 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 the purposes of this Section 15(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 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 an 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 and shall be conclusive for all purposes.
(b) The Company shall not be required to issue fractions of
Preferred Shares (other than fractions which are integral multiples
of one one-hundredth of a Preferred Share) upon exercise of the
Rights or to distribute certificates which evidence fractional
Preferred Shares (other than fractions which are integral multiples
of one one-hundredth of a Preferred Share). Fractions of Preferred
Shares in integral multiples of one one-hundredth of a Preferred
Share may, at the election of the Company, be evidenced by
depositary receipts, pursuant to an appropriate agreement between
the Company and a depositary selected by it, provided that such
agreement shall provide that the holders of such depositary receipts
shall have all the rights, privileges and preferences to which they
are entitled as beneficial owners of the Preferred Shares
represented by such depositary receipts. In lieu of fractional
Preferred Shares that are not integral multiples of one
one-hundredth of a Preferred Share, the Company shall pay to the
registered holders of Right 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 Preferred Share. For
purposes of this Section 15(b), the current market value of a
Preferred Share shall be the closing price of a Preferred Share (as
determined pursuant to Section 11(d)(ii) hereof) for the Trading Day
immediately prior to the date of such exercise.
(c) The holder of a Right by the acceptance of the Right
expressly waives his right to receive any fractional Rights or any
fractional shares upon exercise of a Right (except as provided
above).
Section 16. Rights of Action. All rights of action in respect of
this Agreement, excepting any rights of action of the Rights Agent under
Section 19 hereof, are vested in the respective registered holders of the
Right Certificates (and, prior to the Distribution Date, the registered
holders of the Common Shares); and any registered holder of any Right
Certificate (or, prior to the Distribution Date, of the Common Shares),
without the consent of the Rights Agent or of the holder of any other
Right Certificate (or, prior to the Distribution Date, of the Common
Shares), may, in his own behalf and for his own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
to enforce, or otherwise act in respect of, his right to exercise the
Rights evidenced by such Right Certificate in the manner provided in such
Right Certificate and in this Agreement. Without limiting the foregoing
or any remedies available to the holders of Rights, it is specifically
acknowledged that the holders of Rights would not have an adequate remedy
at law for any breach of this Agreement and will be entitled to specific
performance of the obligations under, and injunctive relief against
actual or threatened violations of, the obligations of any Person subject
to this Agreement.
The Company or, in the case of the exercise of Rights pursuant to
Section 13 of this Agreement, the Principal Party, shall pay to the
registered holders of the Right Certificates, on demand, any and all
costs, fees, charges and other expenses (including, without limitation,
reasonable attorneys' fees and legal expenses), whether legal or
otherwise, incurred by such holders in enforcing or attempting to enforce
their right to exercise the Right evidenced by such Right Certificates.
Section 17. Agreement of Right Holders. Every holder and Beneficial
Owner of a Right, by accepting the same, consents and agrees with the
Company and the Rights Agent and with every other holder and Beneficial
Owner of a Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of the Common
Shares;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if
surrendered at the principal office of the Rights Agent duly
endorsed or accompanied by a proper instrument of transfer; and
(c) the Company and Rights Agent may deem and treat the person
in whose name the Right Certificate (or, prior to the Distribution
Date, the associated Common Shares certificate) is registered as the
absolute owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing on the Right
Certificates or the associated Common Shares certificate made by
anyone other than the Company or the Rights Agent) for all purposes
whatsoever, and neither the Company nor the Rights Agent shall be
affected by any notice to the contrary.
Section 18. Right Certificate Holder Not Deemed a Stockholder. No
holder or Beneficial Owner, as such, of any Right Certificate shall be
entitled to vote, receive dividends or be deemed for any purpose the
holder of the Preferred Shares 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 Right
Certificate be construed to confer upon the holder or Beneficial Owner of
any Right Certificate, as such, any of the rights of a stockholder of the
Company or any right to vote for the election of directors or upon any
matter submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of
meetings or other actions affecting shareholders (except as provided in
Section 25 hereof), or to receive dividends or subscription rights, or
otherwise, until the Right or Rights evidenced by such Right Certificate
shall have been exercised in accordance with the provisions hereof.
Section 19. Concerning the Rights Agent. 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 other disbursements incurred in
the administration and execution of this Agreement and the exercise and
performance of its duties hereunder. The Company also agrees to indemnify
the Rights Agent for, and to hold it harmless against, any loss,
liability, or expense, incurred without negligence, bad faith or willful
misconduct on the part of the Rights Agent, for anything done or omitted
by the Rights Agent in connection with the acceptance and administration
of this Agreement, including the costs and expenses of defending against
any claim of liability in the premises. The indemnity provided for herein
shall survive the expiration of the Rights, the termination of this
Agreement, and the resignation or removal of the Rights Agent. The costs
and expenses of enforcing this right of indemnification shall also be
paid by the Company.
The Rights Agent may conclusively rely upon and 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 Right Certificate or certificate for the
Preferred Shares or Common Shares 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, or otherwise upon the advice of counsel as set forth
in Section 21(a) hereof. Notwithstanding anything in this Agreement to
the contrary, in no event shall the Rights Agent be liable for special,
indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Rights Agent has
been advised of the likelihood of such loss or damage and regardless of
the form of the action.
Section 20. Merger or Consolidation or Change of Name of Rights
Agent. 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 that such corporation would be eligible for appointment as a
successor Rights Agent under the provisions of Section 22 hereof. In case
at the time such successor Rights Agent shall succeed to the agency
created by this Agreement, any of the Right Certificates shall have been
countersigned but not delivered, any such successor Rights Agent may
adopt the countersignature of the predecessor Rights Agent and deliver
such Right Certificates so countersigned; and in case at that time any of
the Right Certificates shall not have been countersigned, any successor
Rights Agent may countersign such Right Certificates either in the name
of the predecessor Rights Agent or in the name of the successor Rights
Agent; and in all such cases such Right Certificates shall have the full
force provided in the Right Certificates and in this Agreement.
In case at any time the name of the Rights Agent shall be changed
and at such time any of the Right Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Right Certificates so
countersigned; and in case at that time any of the Right Certificates
shall not have been countersigned, the Rights Agent may countersign such
Right Certificates either in its prior name or in its changed name; and
in all such cases such Right Certificates shall have the full force
provided in the Right Certificates and in this Agreement.
Section 21. Duties of Rights Agent. The Rights Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms
and conditions, and no implied duties or obligations shall be read into
this Agreement against the Rights Agent, by all of which the Company and
the holders of Right Certificates, by their acceptance thereof, shall be
bound:
(a) Before the Rights Agent acts or refrains from acting, 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 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 any one of the President and Chief
Executive Officer, any Vice President, the Treasurer or the
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 to the Company
and any other Person 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 Right Certificates (except its countersignature
thereof) or be required to verify the same, but all such statements
and recitals are and shall be deemed to have been made by the
Company only.
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and
delivery hereof (except the due execution hereof by the Rights
Agent) or in respect of the validity or execution of any Right
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 Right Certificate;
nor shall it be responsible for any change in the exercisability of
the Rights (including the Rights becoming void pursuant to Section
11(a)(ii) hereof) or any adjustment in the terms of the Rights
(including the manner, method or amount thereof) provided for in
Section 3, 11, 13, or 24, or the ascertaining of the existence of
facts that would require any such change or adjustment (except with
respect to the exercise of Rights evidenced by Right Certificates
after actual notice that such change or adjustment is required); nor
shall it by any act hereunder be deemed to make any representation
or warranty as to the authorization or reservation of any Preferred
Shares to be issued pursuant to this Agreement or any Right
Certificate or as to whether any Preferred Shares will, when 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 any one of the President and Chief Executive Officer,
any Vice President, the Secretary or the 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 by it in good faith in accordance with
instructions of any such officer. Any application by the Rights
Agent for written instructions from the Company may, at the option
of the Rights Agent, set forth in writing any action proposed to be
taken or omitted by the Rights Agent under this Rights Agreement and
the date on and/or after which such action shall be taken or such
omission shall be effective. The Rights Agent shall not be liable
for any action taken by, or omission of, the Rights Agent in
accordance with a proposal included in any such application on or
after the date specified in such application (which date shall not
be less than five Business Days after the date any such officer of
the Company actually receives such application, unless any such
officer shall have consented in writing to an earlier date) unless,
prior to taking any such action (or the effective date in the case
of an omission), the Rights Agent shall have received written
instructions in response to such application specifying the action
to be taken or omitted.
(h) The Rights Agent and any shareholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the
Rights or other securities of the Company or become pecuniarily
interested in any transaction in which the Company may be
interested, or contract with or lend money to the Company or
otherwise act as fully and freely as though it were not Rights Agent
under this Agreement. Nothing herein shall preclude the Rights Agent
from acting in any other capacity for the Company or for any other
legal entity.
(i) The Rights Agent may execute and exercise any of the rights
or powers hereby vested in it or perform any duty hereunder either
itself or by or through its attorneys or agents, and the Rights
Agent shall not be answerable or accountable for any act, default,
neglect or misconduct of any such attorneys or agents or for any
loss to the Company resulting from any such act, default, neglect or
misconduct, provided 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) The Rights Agent shall not be required to take notice or
be deemed to have notice of any fact, event or determination
(including, without limitation, any dates or events defined in this
Agreement or the designation of any Person as an Acquiring Person,
Affiliate or Associate) under this Agreement unless and until the
Rights Agent shall be specifically notified in writing by the
Company of such fact, event or determination.
Section 22. Change of Right Agent. The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this
Agreement upon 30 days' notice in writing mailed to the Company and to
each transfer agent of the Common Shares and Preferred Shares by
registered or certified mail, and, at the expense of the Company, to the
holders of the Right Certificates by first-class mail. The Company may
remove the Rights Agent or any successor Rights Agent upon 30 days'
notice in writing, mailed to the Rights Agent or successor Rights Agent,
as the case may be, and to each transfer agent of the Common Shares and
Preferred Shares by registered or certified mail, and to the holders of
the Right 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 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 Right Certificate (who shall, with such
notice, submit his Right Certificate for inspection by the Company), then
the registered holder of any Right 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 Commonwealth of Massachusetts or of the
State of New York or Illinois (or of any other state of the United States
so long as such corporation is authorized to do business as a banking
institution in The Commonwealth of Massachusetts or in the States of New
York or Illinois), in good standing, having a principal office in The
Commonwealth of Massachusetts or in the States of New York or Illinois
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 (A) has at the time of its
appointment as Rights Agent a combined capital and surplus of at least
$50 million, or (B) is a member of a bank holding company system, which
bank holding company system has an aggregate combined capital and surplus
of at least $50 million, provided that such corporation's separate
capital and surplus shall at all times be at least $10 million. 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 Shares and Preferred Shares, and mail a
notice thereof in writing to the registered holders of the Right
Certificates. Failure to give any notice provided for in this Section 22,
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 23. Issuance of New Right Certificates. Notwithstanding any
of the provisions of this Agreement or of the Rights to the contrary, the
Company may, at its option, issue new Right 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 Right Certificates made in accordance with the provisions of this
Agreement. In addition, the Company may, if deemed necessary or
appropriate by the Board of Directors of the Company, issue Right
Certificates in connection with the issuance of Common Shares following
the Distribution Date.
Section 24. Redemption.
(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
twentieth day following the Shares Acquisition Date, or (ii) the
Final Expiration Date, redeem all but not less than all the then
outstanding Rights at a redemption price of $.10 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") and the Company may, at its option, pay the
Redemption Price either in Common Shares (based on the "current per
share market price," as defined in Section 11(d)(i) hereof, of the
Common Shares at the time of redemption) or cash. If, following the
occurrence of a Shares Acquisition Date and following the expiration
of the right of redemption hereunder but prior to the occurrence of
any event described in Section 11(a)(ii) or Section 13(a) hereof (a
"Triggering Event"), (i) each Person who is an Acquiring Person
shall have transferred or otherwise disposed of a number of Common
Shares in one transaction or series of transactions, not directly or
indirectly involving the Company or any of its Subsidiaries, which
did not result in the occurrence of Triggering Event such that each
such Person is thereafter a Beneficial Owner of 10% or less of the
outstanding shares of Common Shares, and (ii) there are no other
Persons, immediately following the occurrence of the event described
in clause (i) of this sentence, who are Acquiring Persons, then the
right of redemption set forth in the preceding sentence shall be
reinstated and thereafter be subject to the provisions of this
Section 24.
Notwithstanding anything contained in this Agreement to the
contrary, the Rights shall not be exercisable after the first
occurrence of an event described in Section 11(a)(ii) hereof until
such time as the Company's right of redemption set forth in the
first sentence of this Section 24(a) has expired.
(b) Immediately upon the action of the Board of Directors of
the Company ordering the redemption of the Rights, 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. Within 10 days
after the action of the Board of Directors ordering the redemption
of the Rights, the Company shall give notice of such redemption to
the holders of the then outstanding Rights by mailing such notice to
all such holders at their last addresses as they appear 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
Shares. Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives the
notice. Each such notice of redemption will state the method by
which the payment of the Redemption Price will be made.
(c) Neither the Company nor any of its Subsidiaries, Affiliates
or Associates may redeem, acquire or purchase for value any Rights
at any time in any manner except (i) pursuant to a redemption in
accordance with Section 24(a) hereof or (ii) in connection with the
purchase of Common Shares prior to the Distribution Date.
Section 25. Notice of Certain Events. In case the Company shall
propose after the Distribution Date (a) to pay any dividend payable in
stock of any class to the holders of Preferred Shares or to make any
other distribution to the holders of Preferred Shares (other than a
regular periodic cash dividend), or (b) to offer to the holders of
Preferred Shares rights or warrants to subscribe for or to purchase any
additional Preferred Shares or shares of stock of any class or any other
securities, rights or options, or (c) to effect any reclassification of
its Preferred Shares (other than a reclassification involving only the
subdivision of outstanding Preferred Shares), or (d) to effect any
consolidation or merger into or with, 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 or more transactions, of 50% or more of the
assets or earning power of the Company and its Subsidiaries (taken as a
whole) to, any other Person or Persons, or (e) to effect the liquidation,
dissolution or winding up of the Company, or (f) to declare or pay any
dividend on the Common Shares payable in Common Shares or to effect a
subdivision, combination or consolidation of the Common Shares (by
reclassification or otherwise than by payment of dividends in Common
Shares), then, in each such case, the Company shall give to each holder
of a Right Certificate, in accordance with Section 26 hereof, a notice of
such proposed action, which shall specify the record date for the
purposes of such stock dividend, or 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 Common Shares
and/or Preferred Shares, if any such date is to be fixed, and such notice
shall be so given in the case of any action covered by clause (a) or (b)
above at least 20 days prior to the record date for determining holders
of the Preferred Shares for purposes of such action, and in the case of
any such other action, at least 20 days prior to the date of the taking
of such proposed action or the date of participation therein by the
holders of the Common Shares and/or Preferred Shares, whichever shall be
the earlier.
In case any of the events set forth in Section 11(a)(ii) of this
Agreement shall occur, then, in any such case, the Company shall as soon
as practicable thereafter give to each holder of a Right Certificate, in
accordance with Section 26 hereof, a notice of the occurrence of such
event, which shall specify the event and the consequences of the event to
holders of Rights under Section 11(a)(ii) hereof.
Section 26. Notices. Notices or demands authorized by this Agreement
to be given or made by the Rights Agent or by the holder of any Right
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:
Federal Signal Corporation
1415 West 22nd Street
Oak Brook, Illinois 60523
Attention: Secretary with another copy to the
attention of the President
Subject to the provisions of Section 22 hereof, any notice or demand
authorized by this Agreement to be given or made by the Company or by the
holder of any Right Certificate to or on the Rights Agent shall be sent
by registered or certified mail and shall be deemed given upon receipt,
addressed (until another address is filed in writing with the Company) as
follows:
Harris Trust and Savings Bank
311 W. Monroe St.
Chicago, IL 60606
Attn: Shareholder Services Division
Notices or demands authorized by this Agreement to be given or made by
the Company or the Rights Agent to the holder of any Right Certificate
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 27. Supplements and Amendments. Prior to the Distribution
Date and subject to the penultimate sentence of this Section 27, the
Company may 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 Common Shares. From and after
the Distribution Date and subject to the penultimate sentence of this
Section 27, the Company may and the Rights Agent shall, if the Company so
directs, supplement or amend this Agreement without the approval of any
holders of Right 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 adversely affect the
interests of the holders of Right 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 (other than any Acquiring Person
and its Affiliates and Associates). Upon the delivery of a certificate
from an appropriate officer of the Company which states that the proposed
supplement or amendment is in compliance with the terms of this Section
27, the Rights Agent shall execute such supplement or amendment.
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 Preferred Share for which a Right is exercisable.
Prior to the Distribution Date, the interests of the holders of Rights
shall be deemed coincident with the interests of the holders of Common
Shares. Notwithstanding anything in this Agreement to the contrary, no
supplement or amendment that changes the rights and duties of the Rights
Agent under this Agreement will be effective against the Rights Agent
without the execution of such supplement or amendment by the Rights
Agent.
Section 28. Successors. All the covenants and provisions
of this Agreement by or for the benefit of the Company or the
Rights Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.
Section 29. Benefits of this Agreement. Nothing in this Agreement
shall be construed to give to any person or corporation other than the
Company, the Rights Agent and the registered holders of the Right
Certificates (and, prior to the Distribution Date, the Common Shares) any
legal or equitable right, remedy or claim under this Agreement; but this
Agreement shall be for the sole and exclusive benefit of the Company, the
Rights Agent and the registered holders of the Right Certificates (and,
prior to the Distribution Date, the Common Shares).
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.
Section 31. Governing Law. This Agreement and each Right Certificate
issued hereunder shall be deemed to be a contract made under the laws of
the State of Delaware and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to
contracts to be made and performed entirely within such State, except for
Sections 19, 20, 21 and 22 which for all purposes shall be governed by
and construed in accordance with the laws of the State of Illinois.
Section 32. Counterparts. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all
purposes be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument.
Section 33. Descriptive Headings. Descriptive headings
of the several Sections of this Agreement are inserted for
convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
FEDERAL SIGNAL CORPORATION
Attest:
By: Kim A. Wehrenberg By: Joseph J. Ross
Secretary President and Chief
Executive Officer
HARRIS TRUST AND SAVINGS BANK,
Attest: as Rights Agent
By: ___________________________ By: _________________________
Senior Account Administrator Vice President
Exhibit A
FORM OF
CERTIFICATE OF DESIGNATION, PREFERENCES AND
RIGHTS OF SERIES A PREFERRED STOCK
of
FEDERAL SIGNAL CORPORATION
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
Joseph J. Ross, President, and Kim A. Wehrenberg, Secretary of
Federal Signal Corporation, a corporation organized and existing under
the General Corporation Law of the State of Delaware, in accordance with
the provisions of Section 103 thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of
Directors by the Restated Certificate of Incorporation of the said
Corporation, the said Board of Directors on July 9, 1998 adopted the
following resolution creating a series of five hundred thousand (500,000)
shares of Preferred Stock designated as Series A Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of this Corporation in accordance with the provisions of its
Restated Certificate of Incorporation, a series of Preferred Stock of the
Corporation be and it hereby is created, and that the designation and
amount thereof and the voting powers, preferences and relative,
participating, optional and other special rights of the shares of such
series, and the qualifications, limitations or restrictions thereof are
as follows:
Section 1. Designation and Amount. The shares of such series shall
be designated as "Series A Preferred Stock," with $1.00 par value, and
the number of shares constituting such series shall be 500,000. Such
number of shares may be increased or decreased by resolution of the Board
of Directors; provided, that no decrease shall reduce the number of
shares of Series A Preferred Stock to a number less than that of the
shares then outstanding plus the number of shares reserved for issuance
upon the exercise of outstanding options, rights or warrants or upon
conversion of any outstanding securities issued by the Corporation
convertible into Series A Preferred Stock.
Section 2. Dividends and Distributions.
(a) Subject to the prior rights of the holders of any series
of capital stock of the Corporation ranking prior and superior to the
shares of Series A Preferred Stock with respect to dividends, the holders
of shares of Series A Preferred Stock, in preference to the holders of
Common Stock, $1.00 par value, of the Corporation ("Common Stock"), and
of any other junior 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 fifteenth day of
January, April, July and October 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 Preferred Stock, in an amount
per share (rounded to the nearest cent) equal to the greater of (a) $25
or (b) subject to the provision for adjustment hereinafter set forth, 100
times the aggregate per share amount of all cash dividends, and 100 times
the aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions, other than a dividend payable in shares
of Common Stock or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on 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 Preferred Stock.
In the event the Corporation shall at any time declare or pay any
dividend on Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the amount to which
holders of shares of Series A 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 Preferred Stock as provided in paragraph (a) of this
Section immediately after it declares 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 $25 per share on the Series A 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 Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares of
Series A Preferred Stock, unless the date of issue of such shares is
prior to the record date for the first Quarterly Dividend Payment Date,
in which case dividends on such shares shall begin to accrue from the
date of issue of such shares, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A 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 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 Preferred
Stock entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be not more than 60 days prior to the
date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(a) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Preferred Stock shall entitle the holder
thereof to one hundred votes on all matters submitted to a vote of the
stockholders of the Corporation. In the event the Corporation shall at
any time declare or pay any dividend on Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or consolidation of
the outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) into a greater
or lesser number of shares of Common Stock, then in each such case the
number of votes per share to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event shall be
adjusted by multiplying-plying such number 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) Except as otherwise provided herein, in any other
Certificate of Designation establishing a series of Preference Stock or
any similar stock, or by law, the holders of shares of Series A Preferred
Stock and the holders of shares of Common Stock and any other capital
stock of the Corporation having general voting rights shall vote together
as one class on all matters submitted to a vote of stockholders of the
Corporation.
(c) Except as set forth herein, holders of Series A Preferred
Stock shall have no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of Series
A Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding
up) to the Series A 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 Preferred Stock, except
dividends paid ratably on the Series A Preferred Stock and
all such parity stock on which dividends are payable or in
arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as
to dividends or upon liquidation, dissolution or winding up)
with the Series A Preferred Stock, provided that the
Corporation may at any time redeem, purchase or otherwise
acquire shares of any such junior stock in exchange for
shares of any stock of the Corporation ranking junior (either
as to dividends or upon dissolution, liquidation or winding
up) to the Series A Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series A Preferred Stock, or any
shares of stock ranking on a parity with the Series A
Preferred Stock, except in accordance with a purchase offer
made in writing or by publication (as determined by the Board
of Directors) to all holders of such shares upon such terms
as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights
and preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable
treatment among the respective series or classes.
(b) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares
of stock of the Corporation unless the Corporation could, under paragraph
(a) of this Section 4, purchase or otherwise acquire such shares at such
time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their cancellation become authorized
but unissued shares of Preference Stock and may be reissued as part of a
new series of Preference Stock, subject to the conditions and
restrictions on issuance set forth herein, in the Restated Certificate of
Incorporation, in any other Certificate of Designation establishing a
series of Preference Stock or any similar stock or as otherwise required
by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (i) to the holders of shares of stock,
including Common Stock, ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock
unless, prior thereto, the holders of shares of Series A 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, provided that the holders of shares of Series A
Preferred Stock shall be entitled to receive an aggregate amount per
share, subject to the provision for adjustment hereinafter set forth,
equal to 100 times the aggregate amount to be distributed per share to
holders of Common Stock, or (ii) to the holders of stock ranking on a
parity (either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock, except distributions made
ratably on the Series A Preferred Stock and all other such parity stock
in proportion to the total amounts to which the holders of all such
shares are entitled upon such liquidation, dissolution or winding up. In
the event the Corporation shall at any time declare or pay any dividend
on Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the aggregate amount to
which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under the proviso in clause (i) 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.
Section 7. Consolidation, Merger, etc. In case the Corporation
shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or
changed into other stock or securities, cash and/or any other property,
then in any such case the shares of Series A Preferred Stock shall at the
same time be similarly exchanged or changed in an amount per share,
subject to the provision for adjustment hereinafter set forth, equal to
100 times the aggregate amount of stock, securities, cash and/or any
other property (payable in kind), as the case may be, into which or for
which each share of Common Stock is changed or exchanged. In the event
the Corporation shall at any time declare or pay any dividend on Common
Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock
(by reclassification or otherwise) into a greater or lesser number of
shares of Common Stock, then in each such case the amount set forth in
the preceding sentence with respect to the exchange or change of shares
of Series A Preferred Stock 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.
Section 8. No Redemption. The shares of Series A Preferred Stock
shall not be redeemable.
Section 9. Rank. The Series A Preferred Stock shall rank prior to
all Common Stock as to payment of dividends and distribution of assets,
but shall be junior to all other series of the Corporation's Preference
Stock as to payment of dividends and distribution of assets (except to
the extent a series is made pari passu with the Series A Preferred
Stock).
Section 10. Amendment. The Restated Certificate of Incorporation of
the Corporation, as amended, shall not be amended in any manner which
would materially alter or change the powers, preferences or special
rights of the Series A Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of two-thirds of the
outstanding shares of Series A Preferred Stock, voting together as a
single class.
<PAGE>
Exhibit B
[Form of Right Certificate]
Certificate No. R- _______________Rights
NOT EXERCISABLE AFTER THE CLOSE OF BUSINESS AUGUST 18, 2008 OR
EARLIER IF REDEMPTION OCCURS. THE RIGHTS ARE SUBJECT TO REDEMPTION
AT $.10 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.
UNDER CERTAIN CIRCUMSTANCES (SPECIFIED IN SECTION 11(a)(ii) OF THE
RIGHTS AGREEMENT), RIGHTS BENEFICIALLY OWNED BY ACQUIRING PERSONS
(AS DEFINED IN SECTION 11(a)(ii) OF THE RIGHTS AGREEMENT) OR ANY
SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE
RIGHTS REPRESENTED BY THIS RIGHT CERTIFICATE WERE ISSUED TO A
PERSON WHO WAS AN ACQUIRING PERSON OR AN AFFILIATE OR AN ASSOCIATE
OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS
AGREEMENT). THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED
HEREBY MAY BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION
11(a)(ii) OF THE RIGHTS AGREEMENT.]*
Right Certificate
Federal Signal Corporation
This certifies that ___________, or registered assigns, is the
registered owner of the number of Rights set forth above, each of which
entitles the owner thereof, subject to the terms, provisions and
conditions of the Rights Agreement dated as of July 9, 1998 (the "Rights
Agreement") between Federal Signal Corporation, a Delaware corporation
(the "Company"), and Harris Trust and Savings Bank, a national banking
association (the "Rights Agent"), to purchase from the Company at any
time after the Distribution Date (as such term is defined in the Rights
Agreement) and prior to 5:00 p.m. (Chicago time) on August 18, 2008 at
the office of the Rights Agent designated for such purpose, or at the
office of its successor as Rights Agent, one one-hundredth of a fully
paid _______ non-assessable share of Series A Preferred Stock, with $1.00
par value (the "Preferred Shares"), of the Company, at an initial
purchase price of $100 per one one-hundredth of a Preferred Share (the
"Purchase Price"), upon presentation and surrender of this Right
Certificate with the Form of Election to Purchase duly executed. The
number of Rights evidenced by this Right Certificate (and the number of
one one-hundredths of a Preferred Share which may be purchased upon
exercise thereof) set forth above, and the Purchase Price set forth
above, are the number and Purchase Price as of July 9, 1998, based on the
Preferred Shares as constituted at such date. As provided in the Rights
Agreement, the Purchase Price and the number of one one-hundredths of a
Preferred Share which may be purchased upon the exercise of the Rights
evidenced by this Right Certificate are subject to modification and
adjustment upon the happening of certain events.
* The portion of the legend in brackets shall be inserted only if applicable.
<PAGE>
This Right Certificate is subject to all of the terms, provisions
and conditions of the Rights Agreement which terms, provisions and
conditions are hereby incorporated herein by reference and made a part
hereof and to which Rights Agreement reference is hereby made for a full
description of the rights, limitations of rights, obligations, duties and
immunities hereunder of the Rights Agent, the Company and the holders of
the Right Certificates. Copies of the Rights Agreement are on file at the
principal executive offices of Federal Signal Corporation.
This Right Certificate, with or without other Right Certificates,
upon surrender at the principal office of the Rights Agent, or at its
office in New York, New York, may be exchanged for another Right
Certificate or Right Certificates of like tenor and date evidencing
Rights entitling the holder to purchase a like aggregate number of
Preferred Shares as the Rights evidenced by the Right Certificate or
Right Certificates surrendered shall have entitled such holder to
purchase. If this Right Certificate shall be exercised in part, the
holder shall be entitled to receive upon surrender hereof another Right
Certificate or Right Certificates for the number of whole Rights not
exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate may, but are not required to, be redeemed
by the Company at a redemption price of $.10 per Right, in cash or stock.
No fractional Preferred Shares (other than fractions which are
integral multiples of one one-hundredth of a Preferred Share, which may,
at the election of the Company, be evidenced by depository receipts) will
be issued upon the exercise of any Right or Rights evidenced hereby, but
in lieu thereof a cash payment will be made, as provided in the Rights
Agreement.
No holder of this Right Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of the
Preferred Shares or of any other securities of the Company which may at
any time be issuable on the exercise hereof, nor shall anything contained
in the Rights Agreement or herein be construed to confer upon the holder
hereof, as such, any of the rights of a shareholder of the Company or any
right to vote for the election of directors or upon any matter submitted
to shareholders at any meeting thereof, or to give or withhold consent to
any corporate action, or, to receive notice of meetings or other actions
affecting shareholders (except as provided in the Rights Agreement), or
to receive dividends or subscription rights, or otherwise, until the
Right or Rights evidenced by this Right Certificate shall have been
exercised as provided in the Rights Agreement.
This Right 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 [August 18, 1998].
ATTEST: FEDERAL SIGNAL CORPORATION
_________________________________ By:_______________________
Secretary [Name and Title]
Countersigned:
HARRIS TRUST AND SAVINGS BANK
By: _____________________________
[Authorized Officer]
<PAGE>
[Form of Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder
desires to transfer the Right Certificates.)
FOR VALUE RECEIVED __________ hereby sells, assigns and transfers unto
______________________________________________________________________
(Please print name and address of transferee)
this Right Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint
___________ attorney, to transfer the within Right Certificate on
the books of the within-named Company, with full power of
substitution.
Dated: ________,_____
_____________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of
Securities Dealers, Inc., or a commercial bank or trust company having an
office or correspondent in the United Stated States.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
(To be completed if applicable)
The undersigned hereby certifies that the Rights evidenced by this
Right Certificate are not beneficially owned by an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement).
_____________________
Signature
<PAGE>
[Form of Reverse Side of Right Certificate -- continued]
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Right Certificate.)
To: FEDERAL SIGNAL CORPORATION:
The undersigned hereby irrevocably elects to exercise
___________________ Rights represented by this Right Certificate to
purchase the Preferred Shares issuable upon the exercise of such
Rights and requests that certificates for such Preferred Shares be
issued in the name of:
Please insert social security
of other identifying number:____________
________________________________
(Please print name and address)
________________________________
If such number of Rights shall not be all the Rights evidenced by
this Right Certificate, a new Right Certificate for the balance
remaining 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 must conform in all respects to name of holder as
specified on the face of this Right Certificate in every
particular, without alteration or enlargement or any change
whatsoever)
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a
registered national securities exchange, a member of the National
Association of Securities Dealers, Inc., or a commercial bank or
trust company having an office or correspondent in the United
States.
<PAGE>
[Form of Reverse Side of Right Certificate -- continued]
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
(To be completed if applicable)
The undersigned hereby certifies that the Rights evidenced by
this Right Certificate are not beneficially owned by an Acquiring
Person or an Affiliate or Associate thereof (as defined in the
Rights Agreement).
_______________
Signature
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
NOTICE
The signatures in the foregoing Forms of Assignment and
Election must conform to the name as written upon the face of this
Right Certificate in every particular, without alteration or
enlargement or any change whatsoever.
In the event the certification set forth above in the Forms
of Assignment and Election is not completed, the Company will deem
the beneficial owner of the Rights evidenced by this Right
Certificate to be an Acquiring Person or an Affiliate or Associate
thereof (as defined in the Rights Agreement) and, in the case of an
Assignment, will affix a legend to that effect on any Right
Certificates issued in exchange for this Right Certificate.
<PAGE>
