SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Church & Dwight Co., Inc.
(Exact name of registrant as specified in its charter)
Delaware 134996950
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
469 North Harrison Street
Princeton, New Jersey 08543
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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Preferred Stock Purchase Rights New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
(None)
<PAGE>
CHURCH & DWIGHT CO., INC.
and
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
Rights Agent
RIGHTS AGREEMENT
Dated as of August 20, 1999
<PAGE>
TABLE OF CONTENTS
Section Page
1. Certain Definitions.....................................................1
2. Appointment of Rights Agent.............................................7
3. Issue of Right Certificates.............................................7
4. Form of Right Certificates.............................................10
5. Countersignature and Registration......................................11
6. Transfer, Split Up, Combination and Exchange of Right Certificates;
Mutilated, Destroyed, Lost or Stolen Right Certificates ............12
7. Exercise of Rights; Purchase Price; Expiration Date of Rights..........13
8. Cancellation and Destruction of Right Certificates.....................17
9. Reservation and Availability of Capital Stock..........................17
10. Preferred Stock Record Date...........................................19
11. Adjustment of Purchase Price, Number and Kind of Shares or
Number of Rights................................................20
12. Certificate of Adjusted Purchase Price or Number of Shares............37
13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power..38
14. Fractional Rights and Fractional Shares...............................40
15. Rights of Action......................................................42
16. Agreement of Right Holders............................................42
17. Right Certificate Holder Not Deemed a Shareholder.....................44
18. Concerning the Rights Agent...........................................44
19. Mercer or Consolidation or Change of Name of Rights Agent.............45
20. Duties of Rights Agent................................................46
21. Change of Rights Agent................................................50
22. Issuance of New Right Certificates....................................51
23. Redemption............................................................52
24. Notice of Certain Events..............................................54
25. Notices...............................................................55
26. Supplements and Amendments............................................56
27. Successors............................................................57
28. Determinations and Actions by the Board of Directors, etc.............57
29. Benefits of this Agreement............................................58
30. Severability..........................................................59
31. Governing Law.........................................................59
32. Counterparts..........................................................60
33. Descriptive Headings..................................................60
Exhibit A - Certificate of Designation, Preferences and Rights
Exhibit B - Form of Right Certificate
Exhibit C - Form of Summary of Rights
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* The portion of the legend in brackets shall be inserted only if applicable.
<PAGE>
RIGHTS AGREEMENT
This Agreement, dated as of August 20, 1999 between Church &
Dwight Co. Inc., a Delaware corporation (the "Company"), and ChaseMellon
Shareholder Services, L.L.C., a New Jersey limited liability company (the
"Rights Agent").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company has authorized
and declared a dividend distribution (the "Distribution") of one Right for each
share of Common Stock, par value $1.00 per share, of the Company outstanding at
the close of business on September 13, 1999 (the "Record Date"), each Right
representing the right to purchase one one-hundredth (1/100th) of a share of
Junior Participating Cumulative Preferred Stock, par value $1.00 per share, of
the Company having the rights and preferences set forth in the form of
Certificate of Designation attached hereto as Exhibit A (a "Right"), and has
further authorized the issuance of one Right with respect to each share of
Common Stock of the Company issued between the Record Date and the earliest of
the Distribution Date, the Expiration Date and the Final Expiration Date (as
such terms are hereinafter defined);
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the
following terms have the meanings indicated:
<PAGE>
(a) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall be
the Beneficial Owner of securities of the Company constituting a
Substantial Block, but shall not include the Company, any Subsidiary of
or other Person controlled by the Company, any employee benefit plan of
the Company or any Subsidiary of the Company or any Person holding
Common Stock and organized, appointed or established by the Company or
such Subsidiary for or pursuant to the terms of any such employee
benefit plan.
(b) "Adverse Person" shall mean any person declared to be an
Adverse Person by the Board of Directors upon a determination that the
criteria set forth in Section 11(a)(ii)(B) apply to such Person.
(c) "Affiliate" and "Associate," when used with reference to
any Person, 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
the date of this Agreement.
(d) A Person shall be deemed the "Beneficial Owner" of and shall
be deemed to "beneficially own" any securities:
(i) which such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly;
<PAGE>
(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 (whether
or not in writing), 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
payment or exchange, and provided further, that a Person shall
not be deemed a Beneficial Owner of, or to beneficially own,
securities issuable upon exercise of Rights at any time prior to
the occurrence of either a Section 11(a)(ii) Event or a Section
13 Event; or (B) the right (whether sole or shared) to vote or
dispose of pursuant to any agreement, arrangement or
understanding (whether or not in writing), provided, however,
that a Person shall not be deemed the Beneficial Owner of, or to
beneficially own, any security under this clause (B) if the
agreement, arrangement or understanding to vote such security (1)
arises solely from a revocable proxy or consent given in response
to a public proxy or consent solicitation made pursuant to, and
in accordance with, the Exchange Act and the applicable rules and
regulations thereunder and (2) is not also then reportable by
such Person on Schedule 13D under the Exchange Act (or any
comparable or successor report);
(iii) which are beneficially owned, directly or indirectly,
by any other Person (or any Affiliate or Associate thereof) with
which such Person or any of such Person's Affiliates or
Associates has any agreement, arrangement or understanding
(whether or not in writing) for the purpose of acquiring,
holding, voting (except pursuant to a revocable proxy as
described in clause (B) of subparagraph (ii) of this paragraph
(d)) or disposing of any securities of the Company;
<PAGE>
provided, however, that nothing in this paragraph (d) shall cause a
person engaged in business as an underwriter of securities to be the
"Beneficial Owner" of, or to "beneficially own", any securities
acquired through such person's participation in good faith in a firm
commitment underwriting until the expiration of forty days after such
acquisition.
(e) "Business Day" shall mean any day other than a Saturday,
Sunday or a day on which banking institutions in the State of New York
are authorized or obligated by law or executive order to close.
(f) "Certificate of Designation" shall mean the Certificate of
Designation of Junior Participating Cumulative Preferred Stock setting
forth the powers, preferences, rights, qualifications, limitations and
restrictions of such series of preferred stock of the Company, a form
of which is attached hereto as Exhibit A.
(g) "Close of Business" on any given date shall mean 5:00
P.M., New York City time, on such date; provided, however, that if such
date is not a Business Day it shall mean 5:00 P.M., New York City time,
on the next succeeding Business Day.
<PAGE>
(h) "Common Stock" when used with reference to the Company
shall mean the Common Stock, par value $1.00 per share, of the Company.
"Common Stock" when used with reference to any Person other than the
Company which is organized in corporate form shall mean the capital
stock with the greatest voting power, or the equity securities or other
equity interest having power to control or direct the management, of
such Person or, if such Person is a subsidiary of another Person, the
Person which ultimately controls such first-mentioned Person and which
has issued any such outstanding capital stock, equity securities or
equity interests. "Common Stock" when used with reference to any Person
which is not organized in corporate form shall mean units of beneficial
interest which (i) shall represent the right to participate generally
in the profits and losses of such Person (including, without
limitation, any flow-through tax benefits resulting from an ownership
interest in such Person) and which (ii) shall be entitled to exercise
the greatest voting power of such Person or, in the case of a limited
partnership, shall have the power to remove the general partner or
partners.
(i) "Common Stock Equivalents" shall have the meaning set
forth in Section 11(a)(iii).
(j) "Current market price" shall have the meaning set forth in
Section 11(d).
(k) "Distribution Date" shall have the meaning specified in
Section 3(a).
(l) "Equivalent Preference Stock" shall have the meaning set
forth in Section 11(b).
(m) "Expiration Date" shall have the meaning specified in
Section 7(a).
(n) "Final Expiration Date" shall have the meaning specified
in Section 7(a).
(o) "Person" shall mean any individual, firm, corporation,
partnership, limited liability company, trust or other entity and shall
include any successor (by merger or otherwise) of such entity, but
shall not include the Company or a Subsidiary of the Company.
(p) "Preferred Stock" shall mean shares of Junior
Participating Cumulative Preferred Stock, par value $1.00 per share, of
the Company, having the rights, preferences and limitations set forth
in the form of Certificate of Designation attached to this Agreement as
Exhibit A, and, to the extent there are not a sufficient number of
shares of Junior Participating Cumulative Preferred Stock authorized to
permit the full exercise of the then outstanding Rights, any other
series of preferred stock of the Company designated for such purpose by
the Board of Directors of the Company containing terms substantially
similar to the terms of the Junior Participating Cumulative Preferred
Stock.
<PAGE>
(q) "Purchase Price" shall have the meaning set forth in
Section 4(a).
(r) "Redemption Price" shall have the meaning set forth in
Section 23(a).
(s) "Rights" shall have the meaning set forth in the WHEREAS
Clause at the beginning of this Agreement.
(t) "Right Certificate" shall have the meaning set forth in
Section 3(a).
(u) "Section 11(a)(ii) Event" shall mean any event described
in Section 11(a)(ii).
(v) "Section 11(a)(ii) Trigger Date" shall have the meaning
set forth in Section 11(a)(iii).
(w) "Section 13 Event" shall mean any event described in
Section 13(a), (b) or (c).
(x) "Stock Acquisition Time" shall mean the time of occurrence
of whichever of the following first occurs: (i) the first public
announcement by the Company or an Acquiring Person that an Acquiring
Person has become such; or (ii) the communication to the Company
(including without limitation to the Company directors) of any notice
(including without limitation any written consent or notice related
thereto) from the Acquiring Person indicating or reflecting that the
Acquiring Person has become such.
(y) "Subsidiary" shall mean, with respect to any Person, any
corporation or other entity of which securities or other ownership
interests having ordinary voting power sufficient, in the absence of
contingencies, to elect a majority of the board of directors or other
persons performing similar functions are at the time beneficially
owned, directly or indirectly, by such Person or any corporation
otherwise controlled by such Person.
<PAGE>
(z) "Substantial Block" shall mean a number of shares of
Common Stock of the Company which equals or exceeds 20% of the number
of such shares of Common Stock then outstanding.
(aa) "Summary of Rights" shall have the meaning set forth in
Section 3(b).
Section 2. Appointment of Rights Agent. The Company hereby
appoints the Rights Agent to act as agent for the Company in accordance with the
terms and conditions hereof, and the Rights Agent hereby accepts such
appointment. The Company may from time to time act as Co-Rights Agent or appoint
such Co-Rights Agents as it may deem necessary or desirable. Any actions which
may be taken by the Rights Agent pursuant to the terms of this Agreement may be
taken by any such Co-Rights Agent. The Rights Agent shall have no duty to
supervise, and in no event shall be liable for, the acts or omissions of any
such Co-Rights Agent.
<PAGE>
Section 3. Issue of Right Certificates. (a) Until the earlier
of the Close of Business on (i) the tenth Business Day after the date on which
the Stock Acquisition Time occurs, (ii) the tenth Business Day after the earlier
of the commencement (as determined by reference to Rule 14d-2(a), as now in
effect under the Exchange Act) of, or the date of public announcement of the
intent of any Person (other than the Company, any wholly-owned Subsidiary of the
Company, or any employee benefit plan of the Company or of any Subsidiary of the
Company or any Person appointed or established by the Company or such Subsidiary
pursuant to the terms of any such employee benefit plan) to commence (which
intention to commence remains in effect for five Business Days after such
announcement), a tender or exchange offer for an amount of Common Stock of the
Company which, together with the shares of such stock already owned by such
Person, constitutes 20% or more of the outstanding Common Stock of the Company
(including any such date which is after the date of this Agreement and prior to
the issuance of the Rights) or (iii) the close of business on the tenth Business
Day after the date that the Board of Directors of the Company determines,
pursuant to the criteria set forth in Section 11(a)(ii)(B) hereof, that a Person
is an Adverse Person (the earliest of such dates being herein referred to as the
"Distribution Date"), (x) the Rights will be evidenced (subject to the
provisions of paragraph (b) of this Section 3) by the certificates for shares of
Common Stock registered in the names of the holders of Common Stock (which
certificates for Common Stock shall be deemed also to be certificates for
Rights) and not by separate Right Certificates, and (y) the right to receive
Right Certificates will be transferable only in connection with the transfer of
the underlying Common Stock (including a transfer by the Company). As soon as
practicable after the Distribution Date, the Company shall promptly notify the
Rights Agent thereof and provide the Rights Agent with a shareholders list of
the Company's Common Stock, and the Rights Agent will send, by first-class,
insured, postage-prepaid mail, to each record holder of Common Stock as of the
Close of Business on the Distribution Date, at the address of such holder shown
on the records of the Company, a Right Certificate, in substantially the form of
Exhibit B hereto (a "Right Certificate"), evidencing one Right for each share of
Common Stock so held. As of and after the Distribution Date, the Rights will be
evidenced solely by such Right Certificates.
<PAGE>
(b) Prior to or as promptly as practicable after, the Record
Date, the Company will send a copy of a Summary of Rights to Purchase Preferred
Stock, in substantially the form attached hereto as Exhibit C (the "Summary of
Rights"), by first-class, postage-prepaid mail, to each record holder of Common
Stock as of the Close of Business on the Record Date, at the address of such
holder shown on the records of the Company. With respect to certificates for
Common Stock outstanding as of the Record Date, until the earlier of the
Distribution Date or the Expiration Date, the Rights will be evidenced by such
certificates for Common Stock registered in the names of the holders of Common
Stock with a copy of the Summary of Rights attached thereto. Until the
Distribution Date (or the earlier of the Expiration Date or Final Expiration
Date (as such terms are defined in Section 7 hereof)), the surrender for
transfer of any of the certificates for Common Stock outstanding on the Record
Date, even without a copy of the Summary of Rights attached thereto, shall also
constitute the transfer of the Rights associated with the Common Stock
represented by such certificate.
(c) Certificates for Common Stock issued (or delivered from
the Company's treasury) after the Record Date but prior to the earliest of the
Distribution Date or the Expiration Date or the Final Expiration Date 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
the Corporation and ChaseMellon Shareholder Services, L.L.C.,
dated as of August 20, 1999, (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 the 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. The Corporation will mail to the holder of this
certificate a copy of the Rights Agreement without charge
promptly after receipt of a written request therefor. Under
certain circumstances set forth in the Rights Agreement,
Rights beneficially owned by an Acquiring Person, an Adverse
Person or any Associate or Affiliate thereof (as such terms
are defined in the Rights Agreement) or by any subsequent
holder, may be null and void.
With respect to such certificates containing the foregoing legend until the
earlier of (i) the Distribution Date or (ii) the Final Expiration Date, the
Rights associated with the Common Stock represented by such certificates shall
be evidenced by such certificates alone, and the surrender for transfer of any
of such certificates shall also constitute the transfer of the Rights associated
with the Common Stock represented by such certificates.
<PAGE>
Section 4. Form of Right Certificates. (a) The Right
Certificates (and the forms of election to purchase, certification and
assignment to be printed on the reverse thereof) shall each be substantially in
the form set forth in Exhibit B hereto and may have such marks of identification
or designation and such legends, summaries or endorsements printed thereon as
the Company may deem appropriate (but which do not affect the rights, duties or
responsibilities of the Rights Agent) 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 Sections 11
and 22 hereof, the Right Certificates, whenever distributed, which are
distributed in respect of shares of Common Stock which were issued and
outstanding as of the Record Date, shall be dated as of the Record Date, and all
Right Certificates which are distributed in respect of other shares of Common
Stock shall be dated as of the respective dates of issuance of such Common
Stock, and in each such case on their face shall entitle the holders thereof to
purchase such number of one one-hundredths of a share of Preferred Stock as
shall be set forth therein at the price per one one-hundredth of a share of
Preferred Stock set forth therein (the "Purchase Price"), but the amount and
type of securities purchasable upon the exercise of each Right and the Purchase
Price thereof shall be subject to adjustment as provided in this Agreement.
<PAGE>
(b) Any Right Certificate issued pursuant to Section 3(a) or
Section 22 hereof that represents Rights beneficially owned by: (i) an Acquiring
Person or an Adverse Person or any Associate or Affiliate of an Acquiring Person
or an Adverse Person, (ii) a transferee of an Acquiring Person or an Adverse
Person (or any such Associate or Affiliate) who becomes a transferee after the
Acquiring Person or the Adverse Person becomes such, or (iii) a transferee of an
Acquiring Person or an Adverse Person (or of any such Associate or Affiliate)
who becomes a transferee prior to or concurrently with the Acquiring Person or
Adverse Person becoming such and receives such Rights pursuant to either (A) a
transfer (whether or not for consideration) from the Acquiring Person or the
Adverse Person to holders of equity interests in such Acquiring Person or
Adverse Person or to any Person with whom the Acquiring Person or the Adverse
Person has any continuing agreement, arrangement or understanding regarding the
transferred Rights or (B) a transfer which the Board of Directors of the Company
has determined is part of an agreement, arrangement or understanding which has
as a primary purpose or effect the avoidance of the provisions of Section
11(a)(ii) or of Section 13 with respect to the limitation of the Rights
beneficially owned by an Acquiring Person or an Adverse Person (or any Associate
or Affiliate thereof), and, provided that the Company shall have notified the
Rights Agent that this Section 4(b) applies, any Right Certificate issued
pursuant to Section 6 or Section 11 hereof upon transfer, exchange, replacement
or adjustment of any other Right Certificate referred to in this sentence, shall
contain (to the extent feasible) the following legend modified as necessary to
apply to such Person:
The Rights represented by this Certificate are or were
beneficially owned by a Person who was or became an Acquiring
Person, Adverse Person or an Affiliate or Associate thereof
(as such terms are defined in the Rights Agreement).
Accordingly, this Certificate and the Rights represented
hereby may become null and void in the circumstances specified
in Section 7(e) of the Rights Agreement.
<PAGE>
Section 5. Countersignature and Registration. (a) The Right
Certificates shall be executed on behalf of the Company manually or by facsimile
by the Chairman of the Board, any Vice Chairman, the President (if any) or any
Vice President and also by the Secretary or any Assistant Secretary. The Right
Certificates shall be countersigned by the Rights Agent manually 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.
(b) Following the Distribution Date and receipt by the Rights
Agent of all relevant information, the Rights Agent will keep or cause to be
kept, at its office designated pursuant to Section 25 hereof 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 and the date and certificate number of each of the Right
Certificates.
<PAGE>
Section 6. Transfer, Split Up, Combination and Exchange of
Right Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates. (a)
Subject to the provisions of Sections 4(b) and 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 Expiration Date or the Final Expiration Date (as
such terms are defined in Section 7 hereof) or prior to the time the Rights are
redeemed as provided in Section 23, 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 shares of Preferred Stock (or other securities, cash, and/or
assets, as the case may be) 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, with the form of assignment and certificates
appropriately executed, at the office of the Rights Agent designated for such
purpose. 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 from the holders of Right
Certificates 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 such Right Certificates. The Rights Agent shall have no duty or
obligation under this Section 6 unless and until it is satisfied that all such
taxes and/or charges have been paid in full.
(b) Upon receipt by the Company and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft, destruction or
mutilation of a valid Right Certificate, and, in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to them, and, if
requested by the Company or the Rights Agent, 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 execute and deliver a new Right Certificate of like
tenor to the Rights Agent for countersignature and 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) Subject to Section 7(e) hereof, 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 office of the Rights Agent designated for such purpose, together with
payment of the Purchase Price for each one one-hundredth of a share of Preferred
Stock as to which the Rights are exercised, at or prior to the earlier of (i)
the Close of Business on September 13, 2009 (the "Final Expiration Date"), or
(ii) the time on which the Rights are redeemed as provided in Section 23 (such
earlier time being herein referred to as the "Expiration Date").
(b) The Purchase Price for each one one-hundredth of a share
of Preferred Stock issued pursuant to the exercise of a Right shall initially be
$200.00, 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.
<PAGE>
(c) Upon receipt of a Right Certificate representing
exercisable Rights, with the form of election to purchase and certificate duly
executed, accompanied by payment (in cash, or by certified bank check or money
order payable to the order of the Company) of the Purchase Price for the
Preferred Stock (or other shares, securities, cash or other assets, as the case
may be) to be purchased and an amount equal to any applicable tax or
governmental charge required to be paid by the holder of the Rights pursuant
hereto in cash, or by certified check or money order payable to the order of the
Company, the Rights Agent shall thereupon promptly (i)(A) requisition from any
transfer agent of the Preferred Stock (or make available, if the Rights Agent is
the transfer agent) certificates for the number of shares of Preferred Stock to
be purchased (and the Company hereby irrevocably authorizes its transfer agent
to comply with all such requests), or (B) if the Company shall have elected to
deposit the total number of shares of Preferred Stock issuable upon exercise of
the Rights hereunder with a depositary agent, requisition from the depositary
agent depositary receipts representing such number of one one-hundredths of a
share of Preferred Stock as are to be purchased (in which case certificates for
the shares of Preferred Stock represented by such receipts shall be deposited by
the transfer agent with the depositary agent) and the Company 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 14, (iii) promptly 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 and delivered to the registered holder of
such Right Certificate or to his duly authorized assigns, subject to the
provisions of Section 6 and Section 14 hereof.
<PAGE>
(e) Notwithstanding anything in this Agreement to the
contrary, from and after the first occurrence of a Section 11(a)(ii) Event, any
Rights beneficially owned by (i) an Acquiring Person or an Adverse Person, or an
Associate or Affiliate of an Acquiring Person or an Adverse Person, (ii) a
transferee of an Acquiring Person or an Adverse Person (or of any of such
Associate or Affiliate) who becomes a transferee after the Acquiring Person or
Adverse Person becomes such, or (iii) a transferee of an Acquiring Person or an
Adverse Person (or of any such Associate or Affiliate) who becomes a transferee
prior to or concurrently with the Acquiring Person or Adverse Person becoming
such and receives such Rights pursuant to either (A) a transfer (whether or not
for consideration) from the Acquiring Person or Adverse Person to holders of
equity interests in such Acquiring Person or Adverse Person or to any Person
with whom the Acquiring Person or Adverse Person has any continuing agreement,
arrangement or understanding regarding the transferred Rights or (B) a transfer
which the Board of Directors of the Company has determined is part of an
agreement, arrangement or understanding which has as a primary purpose or effect
the avoidance of this Section 7(e), shall become null and void without any
further action and no holder of such Right shall have any rights whatsoever with
respect to such Rights, whether under any provision of this Agreement or
otherwise. The Company shall notify the Rights Agent when this Section 7(e)
applies and shall use all reasonable efforts to insure that the provisions of
this Section 7(e) and Section 4(b) hereof are complied with but neither the
Company nor the Rights Agent shall have any liability to any holder of Rights,
Certificates or any other Person as a result of the Company's failure to make
any determinations with respect to an Acquiring Person or Adverse Person or any
of their respective Affiliates, Associates or transferees hereunder.
(f) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Company shall be obligated to
undertake any action with respect to a registered holder of any Right
Certificate upon the occurrence of any purported transfer or exercise as set
forth in this Section 7 unless such registered holder shall have (i) properly
completed and signed the certificate following the form of assignment or
election to purchase set forth on the reverse side of the Right Certificate
surrendered for such assignment or exercise, and (ii) provided such additional
evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or
Affiliates or Associates thereof as the Company or the Rights Agent shall
reasonably request.
<PAGE>
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 Capital Stock. (a)
The Company covenants and agrees that it will cause to be reserved and kept
available out of its authorized and unissued shares of Preferred Stock or any
authorized and issued shares of Preferred Stock held in its treasury (and will
use its best efforts, following the occurrence of a Section 11(a)(ii) Event, out
of its authorized and unissued shares of Common Stock and/or other securities or
out of its authorized and issued shares held in its treasury), the number of
shares of Preferred Stock (and, following the occurrence of a Section 11(a)(ii)
Event, Common Stock and/or other securities) that will be sufficient to permit
the exercise in full of all outstanding Rights.
<PAGE>
(b) The Company shall use its best efforts to (i) file, as
soon as practicable following the earliest date after the first occurrence of a
Section 11(a)(ii) Event on which the consideration to be delivered by the
Company upon exercise of the Rights has been determined in accordance with
Section 11(a)(iii) hereof, or as soon as is required by law following the
Distribution Date, as the case may be, a registration statement under the
Securities Act of 1933, as amended (the "Act"), with respect to the securities
purchasable upon exercise of the Rights on an appropriate form, (ii) cause such
registration statement to become effective as soon as practicable after such
filing, and (iii) cause such registration statement to remain effective (with a
prospectus at all times meeting the requirements of the Act) until the earlier
of (A) the date as of which the Rights are no longer exercisable for such
securities, and (B) the Expiration Date. The Company will also take such action
as may be appropriate under, or to ensure compliance with, the securities or
"blue-sky" laws of the various states in connection with the exercisability of
the Rights. The Company may, acting by resolution of its Board of Directors,
temporarily suspend, for a period of time not to exceed ninety (90) days after
the date set forth in clause (i) of the first sentence of this Section 9(c), the
exercisability of the Rights in order to prepare and file such registration
statement and permit it to become effective. Upon any such suspension, the
Company shall issue a public announcement stating that the exercisability of the
Rights has been temporarily suspended, as well as a public announcement at such
time as the suspension is no longer in effect and shall promptly notify the
Rights Agent of each such announcement. Notwithstanding any provision of this
Agreement to the contrary, the Rights shall not be exercisable in any
jurisdiction unless the requisite qualifications in such jurisdiction shall have
been obtained.
<PAGE>
(c) The Company covenants and agrees that it will take all
such action as may be necessary to ensure that all one one-hundredths of a share
of Preferred Stock (and, following the occurrence of a Section 11(a)(ii) Event,
Common Stock and/or other securities) delivered upon exercise of Rights shall,
at the time of delivery of the certificates for such shares (subject to payment
of the Purchase Price), be duly and validly authorized and issued and fully paid
and nonassessable shares.
(d) The Company further covenants and agrees that it will pay
when due and payable any and all taxes and governmental charges which may be
payable in respect of the issuance or delivery of the Right Certificates or of
any shares of Preferred Stock (or shares of Common Stock and/or other
securities, as the case may be) upon the exercise of Rights. The Company shall
not, however, be required to pay any tax or charge 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 a
number of one one-hundredths of a share of Preferred Stock (or shares of Common
Stock and/or other securities, as the case may be), 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 for shares of Preferred
Stock (or Common Stock and/or other securities, as the case may be) or
depositary receipts for Preferred Stock upon the exercise of any Rights until
any such tax or charge shall have been paid (any such tax or charge 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 or
charge is due.
<PAGE>
Section 10. Preferred Stock Record Date. Each Person in whose
name any certificate for a number of one one-hundredths of a share of Preferred
Stock (or shares of Common Stock and/or other securities, as the case may be) is
issued upon the exercise of Rights shall for all purposes be deemed to have
become the holder of record of shares of Preferred Stock (or shares of Common
Stock and/or other securities, as the case may be) represented thereby on, and
such certificate shall be dated, the date upon which the Right Certificate
evidencing such Rights was duly surrendered and payment of the Purchase Price
(and any applicable taxes and governmental charges) was made; provided, however,
that if the date of such surrender and payment is a date upon which the
Preferred Stock (or shares of Common Stock and/or other securities, as the case
may be) transfer books of the Company are closed, such person shall be deemed to
have become the record holder of such shares (fractional and otherwise) on, and
such certificate shall be dated, the next succeeding Business Day on which the
Preferred Stock (or shares of Common Stock and/or other securities, as the case
may be) transfer books of the Company are open. Prior to the exercise of the
Rights evidenced thereby, the holder of a Right Certificate shall not be
entitled to any rights of a stockholder of the Company with respect to shares
for which the Rights shall be exercisable, including, without limitation, the
right to vote, to receive dividends or other distributions or to exercise any
preemptive rights, and shall not be entitled to receive any notice of any
proceedings of the Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number and Kind of
Shares or Number of Rights. (a) The Purchase Price, the number and kind of
shares, or fractions thereof, covered by each Right and the number of Rights
outstanding are subject to adjustment from time to time as provided in this
Section 11.
<PAGE>
(i) In the event the Company shall at any time after the date of
this Agreement (A) declare or pay a dividend on the Preferred Stock
payable in shares of Preferred Stock, (B) subdivide the outstanding
Preferred Stock into a greater number of shares, (C) combine or
consolidate the outstanding Preferred Stock into a smaller number of
shares, or (D) issue any shares of its capital stock in a
reclassification of the Preferred Stock (including any such
reclassification in connection with a consolidation or merger in which
the Company is the continuing or surviving corporation), except as
otherwise provided in this Section 11(a), the Purchase Price in effect
at the time of the record date for such dividend or of the effective
date of such subdivision, combination or reclassification, and the
number and kind of shares of Preferred Stock or capital stock, as the
case may be, issuable on such date, shall be proportionately adjusted
so that the holder of any Right exercised after such time shall be
entitled to receive, upon payment of the Purchase Price then in
effect, the aggregate number and kind of shares of Preferred Stock or
capital stock, as the case may be, which, if such Right had been
exercised immediately prior to such date and at a time when the
Preferred Stock transfer books of the Company were open, the holder
would have owned upon such exercise and been entitled to receive by
virtue of such dividend, subdivision, combination or reclassification;
provided, however, that in no event shall the consideration to be paid
upon the exercise of the Right be less than the aggregate par value of
the shares of capital stock of the Company issuable upon the exercise
of one Right.
If an event occurs which would require an adjustment under both
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 "Section 11(a)(ii) Event") that:
<PAGE>
(A) any Person (other than the Company, any
Subsidiary of or other Person controlled by the Company, any
employee benefit plan of the Company or any Subsidiary of the
Company or any Person holding Common Stock and organized,
appointed or established by the Company or such Subsidiary for
or pursuant to the terms of any such employee benefit plan),
alone or together with its Affiliates and Associates, shall
become the Beneficial Owner of securities representing 20% or
more of the shares of Common Stock then outstanding, unless
the event causing the 20% threshold to be crossed is a Section
13 Event or is an acquisition of shares of Common Stock
pursuant to a tender offer for all outstanding shares of
Common Stock at a price and on terms determined by at least a
majority of the members of the Board of Directors who are not
officers of the Company or of any of its Subsidiaries and who
are not representatives, nominees, Affiliates or Associates of
an Acquiring Person, after receiving advice from one or more
investment banking firms, to be (1) at a price which is fair
to stockholders (taking into account all factors which such
members of the Board deem relevant, including, without
limitation, prices which could reasonably be achieved if the
Company or its assets were to be sold on an orderly basis
designed to realize maximum value) and (2) otherwise in the
best interests of the Company and its stockholders, or
<PAGE>
(B) the Board of Directors of the Company shall
declare any Person to be an Adverse Person upon a
determination that such Person, alone or together with
Affiliates and Associates, has, at any time after the Record
Date, become the Beneficial Owner of an amount of Common Stock
that the Board of Directors determines to be substantial
(which amount shall in no event be less than 10% of the shares
of Common Stock then outstanding) and the determination by at
least a majority of members of the Board of Directors who are
not officers of the Company, after reasonable inquiry and
investigation, including consultation with such Person as the
Directors deem appropriate, that (1) such Beneficial Ownership
of such Person is intended to cause the Company to repurchase
the Common Stock beneficially owned by such Person or to cause
pressure on the Company to take action or enter into a
transaction or series of transactions intended to provide such
Person with short-term financial gain under circumstances
where the Board of Directors determines that the best
long-term interests of the Company and its stockholders would
not be served by taking such action or entering into such
transaction or series of transaction at that time, or (2) such
Beneficial Ownership is causing or is reasonably likely to
cause a material adverse impact (including, but not limited
to, impairment of relationships with the Company's customers,
impairment of the Company's or any of its Subsidiary's
regulatory status, or impairment of the Company's ability to
maintain its competitive position) on the business or
prospects of the Company,
<PAGE>
then, promptly following five Business Days after the date of the
occurrence of an event described in Section 11(a)(ii)(A) hereof and
promptly following the occurrence of any event described in Section
11(a)(ii)(B) hereof, proper provision shall be made to adjust the
Rights so that each holder of a Right, (except as provided below and in
Section 7(e) hereof), shall thereafter have the right to receive, upon
exercise thereof at the then current Purchase Price in accordance with
the terms of this Agreement, in lieu of a number of one-hundredths of a
share of Preferred Stock, such number of shares of Common Stock of the
Company as shall equal the result obtained by (x) multiplying the
then-current Purchase Price by the then number of one one-hundredths of
a share of Preferred Stock for which a Right was exercisable
immediately prior to the first occurrence of such Section 11(a)(ii)
Event, and (y) dividing that product (which, following such first
occurrence, shall thereafter be referred to as the "Purchase Price" for
each Right and for all purposes of this Agreement) by 50% of the
current market price per share of the Common Stock of the Company
(determined pursuant to Section 11(d) hereof) on the date of such first
occurrence (such number of shares being hereinafter referred to as the
"Adjustment Shares"). The Company shall notify the Rights Agent as to
any Persons who are deemed by the Company to be Acquiring Persons,
Adverse Persons or any Associates or Affiliates thereof and shall
identify any Rights pertaining thereto. In case the Acquiring Person or
Adverse Person or any Affiliate or any Associate thereof which is to be
a party to a transaction referred to in this Section 11(a) has
provision in any of its authorized securities or in its Certificate of
Incorporation or By-laws or other instrument governing its corporate
affairs, which provision would have the effect of (i) causing the
Company to issue, in connection with, or as a consequence of, the
consummation of a transaction referred to in this Section 11(a), shares
of Preferred Stock or Common Stock of the Company at less than the then
Current Market Price (other than to the holders of Rights pursuant to
this Section 11(a)(ii)), or to issue securities exercisable for, or
convertible into, Preferred Stock or Common Stock of the Company at
less than such then current market price (other than to the holders of
Rights pursuant to this Section 11(a)(ii)) or (ii) providing for any
special payment, tax or similar provisions in connection with the
issuance of the Preferred Stock at less than the current market price
pursuant to the provisions of this Section 11(a)(ii); then, in such
event, the Company agrees with each holder of the Rights that it shall
not consummate any such transaction unless prior thereto the Company
and such Acquiring Person or Adverse Person or Affiliate or Associate
thereof shall have executed and delivered to the Rights Agent a
supplemental agreement providing that the provision in question of the
Acquiring Person or Adverse Person or Affiliate or Associate thereof
shall have been cancelled, waived or amended, or that the authorized
securities shall be redeemed, so that the applicable provision will
have no effect in connection with, or as a consequence of, the
consummation of the proposed transaction.
<PAGE>
(iii) In lieu of issuing shares of Common Stock in accordance
with Section 11(a)(ii) hereof, the Company may, acting by resolution
of its Board of Directors, (and, in the event that the number of
shares of Common Stock which are authorized by the Company's
Certificate of Incorporation but not outstanding or reserved for
issuance for purposes other than upon exercise of the Rights are not
sufficient to permit the exercise in full of the Rights in accordance
with Section 11(a)(ii), the Company shall): (A) determine the excess
of (1) the value of the Adjustment Shares issuable upon the exercise
of a Right (the "Current Value"), over (2,) the Purchase Price
attributable to each Right (such excess, the "Spread") and (B) with
respect to each Right, make adequate provision to substitute for the
Adjustment Shares, upon payment of the applicable Purchase Price, (1)
cash, (2) a reduction in the Purchase, Price, (3) Common Stock or
other equity securities of the Company (including, without limitation,
shares, or units of shares, of preferred stock which the Board of
Directors of the Company has deemed to have the same value as shares
of Common Stock (such shares or units of preferred stock hereinafter
called "Common Stock Equivalents")), (4) debt securities of the
Company, (5) other assets, or (6) any combination of the foregoing
having an aggregate value equal to the Current Value, where such
aggregate value has been determined by action of the Board of
Directors of the Company; provided, however, if the Company shall not
have made adequate provision to deliver value pursuant to clause (B)
above within thirty (30) days following the later of (x) the
occurrence of a Section 11(a)(ii) Event and (y) the first date that
the right to redeem the Rights pursuant to Section 23 hereof, as such
date may be amended pursuant to Section 26 hereof, shall expire (the
later of (x) and (y) being referred to herein as the "Section
11(a)(ii) Trigger Date"), then the Company shall be obligated to
deliver, upon the surrender for exercise of a Right and without
requiring payment of the Purchase Price, shares of Common Stock (to
the extent available) and then, if necessary, cash, securities and/or
assets that in the aggregate have a value equal to the Spread. If the
Company, acting by resolution of its Board of Directors, shall
determine in good faith that it is likely that sufficient additional
shares of Common Stock could be authorized for issuance upon exercise
in full of the Rights, the thirty (30) day period set forth above may
be extended to the extent necessary, but not more than ninety (90)
days after the Section 11(a)(ii) Trigger Date, in order that the
Company may seek shareholder approval for the authorization of such
additional shares (such period as it may be extended, the
"Substitution Period"). To the extent that the Company determines that
some action is to be taken pursuant to the terms of this Section
11(a)(iii), the Company (x) shall provide that such action shall apply
uniformly to all outstanding Rights, and (y) may suspend the
exercisability of the Rights until the expiration of the Substitution
Period in order to seek any authorization of additional shares and/or
to decide the appropriate form of distribution to be made pursuant to
such first sentence and to determine the value thereof. In the event
of any such suspension, the Company shall issue a public announcement
stating that the exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time as the
suspension is no longer in effect and shall promptly notify the Rights
Agent of each such announcement. For purposes of this Section
11(a)(iii), the value of the Common Stock shall be the current market
price per share of Common Stock (as determined pursuant to Section
11(d) hereof) on the date of the first occurrence of the Section
11(a)(ii) Event, and the value of any Common Stock Equivalents shall
be deemed to have the same value as the Common Stock on such date.
<PAGE>
(b) In the event that the Company shall fix a record date for
the issuance of rights, options or warrants to all holders of shares of
Preferred Stock entitling them (for a period expiring within 45 calendar days
after such record date) to subscribe for or purchase Preferred Stock (or shares
having the same rights, privileges and preferences as the shares of Preferred
Stock ("Equivalent Preference Stock")) or securities convertible into shares of
Preferred Stock or Equivalent Preference Stock at a price per share of Preferred
Stock or Equivalent Preference Stock (or having a conversion price per share, if
a security convertible into shares of Preferred Stock or Equivalent Preference
Stock) less than the current market price per share of the Preferred Stock (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, of which
the numerator shall be the number of shares of Preferred Stock outstanding on
such record date plus the number of additional shares of Preferred Stock and/or
Equivalent Preference Stock which the aggregate subscription or purchase price
of the total number of such 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 of which the denominator shall be the
number of shares of Preferred Stock outstanding on such record date plus the
number of additional shares of Preferred Stock and/or Equivalent Preference
Stock to be offered for subscription or purchase (or into which the convertible
securities so to be offered are initially convertible). In case such
subscription price may be paid 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.
Such adjustment shall be made successively whenever such a record date is fixed;
and in the event that such rights, options 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 Preferred Stock (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 Stock) or subscription rights or warrants (excluding those referred to
in Section 11(b)), the Purchase Price to be in effect after such record date
shall be determined by multiplying the Purchase Price in effect immediately
prior to such record date by a fraction, of which the numerator shall be the
Current Market Price per share of Preferred Stock (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 share of Preferred Stock, and of which the
denominator shall be such current market price per share of Preferred Stock.
Such adjustments shall be made successively whenever such a record date is
fixed, and in the event that such distribution is not so made, the Purchase
Price shall again be adjusted to be the Purchase Price which would then be in
effect if such record date had not been fixed.
<PAGE>
(d) (i) For the purpose of any computation hereunder other
than computations made pursuant to Section 11(a)(iii) hereof, the "Current
Market Price" per share of Common Stock on any date shall be deemed to be the
average of the daily closing prices per share of such Common Stock for the 30
consecutive Trading Days (as such term is hereinafter defined) immediately prior
to but not including such date and for purposes of computations made pursuant to
Section 11(a)(iii) hereof, the "current market price" per share of Common Stock
on any date shall be deemed to be the average of the daily closing prices per
share of such Common Stock for the ten (10) consecutive Trading Days immediately
following but not including such date; provided, however, that in the event that
the current market price per share of Common Stock is determined during a period
following the announcement by the issuer of such Common Stock of (a) a dividend
or distribution on such Common Stock payable in shares of such Common Stock or
securities convertible into such Common Stock (other than the Rights) or (b) any
subdivision, combination or reclassification of such Common Stock, and prior to
the expiration, of the 30 Trading Days or 10 Trading Days period, as set forth
above, after the ex-dividend date for such dividend or distribution, or the
record date for such subdivision, combination or reclassification, as the case
may be, then, and in each such case, the "current market price" shall be
appropriately adjusted to take into account the ex-dividend trading. The closing
price for each day shall be the last sale price, regular way, or, in case no
such sale takes place on such day, the average of the closing bid and asked
prices, regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on the New York Stock Exchange or, if the shares of Common Stock are not
listed or admitted to trading on the New York Stock Exchange, as reported in the
principal consolidated transaction reporting system with respect to securities
listed on the principal national securities exchange on which the shares of
Common Stock are listed or admitted to trading or, if the shares of Common Stock
are not listed or admitted to trading on any national securities exchange, the
last quoted price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated Quotation System ("NASDAQ") or
such other system then in use, or, if on any such date the shares of Common
Stock are not quoted by any such organization, the average of the closing bid
and asked prices as furnished by a professional market maker making a market in
shares of Common Stock selected by the Company, acting by resolution of the
Board of Directors of the Company. If on any such date no market maker is making
a market in shares of Common Stock, the fair value of such shares on such date
as determined in good faith by the Company, acting by resolution of the Board of
Directors of the Company shall be used. The term "Trading Day" shall mean a day
on which the principal national securities exchange on which the shares of
Common Stock are listed or admitted to trading is open for the transaction of
business or, if the shares of Common Stock are not listed or admitted to trading
on any national securities exchange, a Monday, Tuesday, Wednesday, Thursday or
Friday on which banking institutions in the State of New York are not authorized
or obligated by law or executive order to close. If the current per share market
price of the Common Stock cannot be determined in the manner provided above, or
if the Common Stock is not publicly held or not so listed or traded, "current
market price" per share of Common Stock shall mean the fair value per share as
determined in good faith by the Company, acting by resolution of 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.
<PAGE>
(ii) For the purpose of any computation hereunder, the "current
market price" per share of Preferred Stock shall be determined in the same
manner as set forth for the Common Stock in Section 11(d)(i) hereof (other than
the last sentence thereof). If the current market price per share of Preferred
Stock cannot be determined in the manner provided above or if the Preferred
Stock is not publicly held or listed or traded in a manner described in Section
11(d)(i) hereof, the "current market price" per share of Preferred Stock shall
be conclusively deemed to be an amount equal to 100 (as such number may be
appropriately adjusted for such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock occurring after the date of
this Agreement) multiplied by the current market price per share of the Common
Stock. If neither the Common Stock nor the Preferred Stock is publicly held or
so listed or traded, the "current market price" per share of Preferred Stock
shall mean the fair value per share as determined in good faith by the Company,
acting by resolution of its Board of Directors, whose determination shall be
described in a statement filed with Rights Agent and shall be conclusive for all
purposes. For all purposes of this Agreement, the "current market price" of one
one-hundredth of a share of Preferred Stock shall be equal to the "current
market price" of one share of Preferred Stock divided by 100.
<PAGE>
(e) Anything herein to the contrary notwithstanding, no
adjustment in the Purchase Price shall be required unless such adjustment would
require an increase or decrease of at least 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 share of Common Stock or other share
or the nearest one-millionth of a share of Preferred Stock, as the case may be.
Notwithstanding the first sentence of this Section 11(e), any adjustment
required by this Section 11 shall be made no later than the earlier of (i) three
years from the date of the transaction which mandates such adjustment or (ii)
the Expiration Date.
(f) If as a result of an adjustment made pursuant to Section
11(a) hereof, the holder of any Right thereafter exercised shall become entitled
to receive any shares of capital stock of the Company other than Preferred
Stock, thereafter the Purchase Price and the number of such other shares so
receivable upon exercise of any Right and the number of Rights outstanding shall
be subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Preferred Stock
contained in Sections 11(a), (b), (c), (e), (g), (h), (i), (j), (k), and (m)
inclusive, and the provisions of Sections 7, 9, 10, 13 and 14 hereof with
respect to the Preferred Stock shall apply on like terms to any such other
shares, provided, however, that the Company shall not be liable for its
inability to reserve and keep available for issuance upon exercise of the Rights
pursuant to Section 11(a)(ii) a number of shares of Common Stock greater than
the number then authorized by the Certificate of Incorporation of the Company
but not outstanding or reserved for any other purpose.
(g) All Rights originally issued by the Company subsequent to
any adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of one one-hundredths of a
share of Preferred Stock purchasable from time to time hereunder upon exercise
of the Rights, all subject to further adjustment as provided herein.
<PAGE>
(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 Section 11(b) and (c), each Right outstanding
immediately prior to the making of such adjustment shall thereafter evidence the
right to purchase, at the adjusted Purchase Price, that number of one
one-hundredths of a share of Preferred Stock (calculated to the nearest one
ten-thousandth of a share of Preferred Stock) obtained by (i) multiplying (A)
the number of one one-hundredths of a share covered by a Right immediately prior
to such adjustment of the Purchase Price by (B) the Purchase Price in effect
immediately prior to such adjustment of the Purchase Price and (ii) dividing the
product so obtained by the Purchase Price in effect immediately after such
adjustment of the Purchase Price.
<PAGE>
(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 share of Preferred
Stock 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 share of Preferred Stock for which a Right was
exercisable immediately prior to such adjustment. Each Right held of record
prior to such adjustment of the number of Rights shall become that number of
Rights (calculated to the nearest 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 (with prompt notice thereof
to the Rights Agent) 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 14 hereof, the additional Rights to which such holders shall be entitled
as a result of such adjustment, or, at the option of the Company, shall cause to
be distributed to such holders of record in substitution and replacement for,
the 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 shares of Preferred Stock, or fraction thereof, issuable
upon the exercise of the Rights, the Right Certificates theretofore and
thereafter issued may continue to express the Purchase Price per one
one-hundredth of a share and the number of shares 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 the then par value, if any, of the one
one-hundredths of a share of Preferred Stock issuable upon exercise of the
Rights, the Company shall take any corporate action which may, in the opinion of
its counsel, be necessary in order that the Company may validly and legally
issue fully paid and nonassessable shares of Preferred Stock at such adjusted
Purchase Price.
<PAGE>
(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 (with prompt notice of such
election to the Rights Agent) until the occurrence of such event the issuing to
the holder of any Right exercised after such record date the Preferred Stock, or
a fraction thereof, and other capital stock or securities of the Company, if
any, issuable upon such exercise over and above the Preferred Stock and other
capital stock or securities of the Company, if any, issuable upon such exercise
on the basis of the Purchase Price in effect prior to such adjustment; provided,
however, that the Company shall deliver to such holder a due bill or other
appropriate instrument evidencing such holder's right to receive such additional
shares (fractional or otherwise) or securities upon the occurrence of the event
requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company, acting by resolution of its Board of Directors
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 Stock, issuance wholly for cash of
any Preferred Stock at less than the current market price, issuance wholly for
cash of Preferred Stock or securities which by their terms are convertible into
or exchangeable for Preferred Stock, stock dividends or issuance of rights,
options or warrants referred to hereinabove in this Section 11, hereafter made
by the Company to holders of its Preferred Stock shall not be taxable to such
shareholders.
<PAGE>
(n) The Company covenants and agrees that it shall not, at any
time after the Distribution Date, (i) consolidate with any other Person (other
than a Subsidiary of the Company in a transaction that complies with Section
11(o) hereof), (ii) merge with or into any other Person (other than a Subsidiary
of the Company in a transaction which complies with Section 11(o) hereof), or
(iii) sell or transfer (or permit any Subsidiary to sell or transfer), in one
transaction or in a series of related transactions, assets representing over 50%
of the value of the Company or 50% of the cash flow or earning power of the
Company and its Subsidiaries (taken as a whole) to any other Person or Persons
(other than the Company and/or any of its Subsidiaries) in one or more
transaction each of which complies with Section 11(o) hereof, if at the time of
or immediately after such consolidation, merger or sale there are any rights,
warrants or other instruments or securities outstanding or agreements in effect
that would substantially diminish or otherwise eliminate the benefits intended
to be afforded by the Rights.
(o) The Company covenants and agrees that, after the
Distribution Date, it will not, except as permitted by Section 23 or Section 26
hereof, take (or permit any Subsidiary to take) any action if at the time such
action is taken it is reasonably foreseeable that such action will diminish
substantially or otherwise eliminate the benefits intended to be afforded by the
Rights.
<PAGE>
(p) Anything in this Agreement to the contrary
notwithstanding, in the event the Company shall at any time after the date of
this Agreement and prior to the Distribution Date (i) declare or pay any
dividend on the Common Stock of the Company payable in such Common Stock or (ii)
subdivide the outstanding Common Stock of the Company into a greater number of
shares (by reclassification or otherwise than by payment of dividends in such
Common Stock) or (iii) combine or consolidate the outstanding Common Stock of
the Company into a smaller number of shares, then in any such case, (x) the
number of one one-hundredths of a share of Preferred Stock purchasable after
such event upon proper exercise of each Right shall be determined by multiplying
the number of one one-hundredths of a share of Preferred Stock so purchasable
immediately prior to such event by a fraction, the numerator of which is the
number of shares of Common Stock of the Company outstanding immediately before
such event and the denominator of which is the number of shares of such Common
Stock outstanding immediately after such event and (y) action shall be taken
such that each share of Common Stock of the Company outstanding immediately
after such event shall have issued with respect to it that number of Rights
which each share of such Common Stock outstanding immediately prior to such
event had issued with respect to it. The adjustments provided for in this
Section 11(p) 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(p), the adjustments provided for in this Section 11(p) shall be in
addition and prior to any adjustment required pursuant to Section 11(a)(ii).
(q) The failure by the Company's Board of Directors to declare
a Person to be an Adverse Person following such Person becoming the Beneficial
Owner of 10% or more of the outstanding Common Stock shall not imply that such
Person is not Adverse Person or limit such Board of Director's right at any time
in the future to declare such Person to be an Adverse Person.
<PAGE>
Section 12. Certificate of Adjusted Purchase Price or Number
of Shares. Whenever an adjustment is made as provided in Sections 11 or 13, the
Company shall (a) promptly prepare a certificate setting forth such adjustment,
and a brief, reasonably detailed statement of the facts and computations
accounting for such adjustment, (b) promptly file with the Rights Agent and with
each transfer agent for the Common Stock and Preferred Stock a copy of such
certificate and (c) mail a brief summary thereof to each holder of a Right
Certificate (or if prior to the Distribution Date, to each holder of a
certificate representing shares of Common Stock) in accordance with Section 25
of this Agreement. Notwithstanding the foregoing sentence, the failure of the
Company to make such certificates or give such notice shall not affect the
validity or the force or effect of the requirement for such adjustment. The
Rights Agent shall be fully protected in relying on any such certificate and on
any adjustment therein contained, and shall have no duty with respect to and
shall not be deemed to have knowledge of any such adjustment unless and until it
shall have received such a certificate. Any adjustment to be made pursuant to
Sections 11 and 13 shall be effective as of the date of the event giving rise to
such adjustment.
<PAGE>
Section 13. Consolidation, Merger or Sale or Transfer of
Assets or Earning Power. In the event (a "Section 13 Event") that, following the
Stock Acquisition Time, directly or indirectly, (a) the Company shall merge into
or consolidate or otherwise combine with, or merge with and into, any other
Person (other than a Subsidiary of the Company, any employee benefit plan of the
Company or any entity holding capital stock of the Company for or pursuant to
the terms of any such plan) and the Company shall not be the surviving or
continuing corporation of such merger, consolidation or combination, (b) any
Person (other than a Subsidiary of the Company, any employee benefit plan of the
Company or any entity holding capital stock of the Company for or pursuant to
the terms of any such plan) shall merge into or consolidate, or otherwise
combine with and into the Company and the Company shall be the surviving or
continuing corporation of such merger, consolidation or combination and, in
connection therewith, all or part of the Common Stock shall be changed into or
exchanged for stock or other securities of any other Person or cash or any other
property, or (c) 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 and calculated on the
basis of the Company's most recent regularly prepared financial statement) or
assets in the aggregate representing more than 50% of the cash flow of the
Company and its Subsidiaries (taken as a whole and calculated on the basis of
the Company's most recent regularly prepared financial statements) to any other
Person or Persons (other than the Company or any Subsidiary of the Company),
then, and in each such case, proper provision shall be made so that (i)
following the Distribution Date, each holder of a Right (except as otherwise
provided in this Agreement) shall thereafter have the right to receive, upon the
exercise thereof at the then-current Purchase Price in accordance with the terms
of this Agreement, such number of shares of validly authorized and issued, fully
paid, nonassessable and freely tradable shares of Common Stock of such other
Person (or, if such Person is a Subsidiary of or controlled by another Person,
the Person (other than an individual) which ultimately controls such
first-mentioned Person), not subject to any rights of call or rights of first
refusal, as shall be equal to the result obtained by (A) multiplying the
then-current Purchase Price by the number of one one-hundredths of a share of
Preferred Stock for which a Right is then exercisable and dividing that product
by (B) 50% of the current market price per share of Common Stock of such other
Person (determined pursuant to Section 11(d)) on the date of consummation of
such merger, consolidation, sale or transfer; (ii) the issuer of such Common
Stock shall thereafter be liable for, and shall assume, by virtue of such
merger, consolidation, sale or transfer, all the obligations and duties of the
Company pursuant to this Agreement; (iii) the term "Company" shall thereafter be
deemed to refer to such issuer; (iv) such issuer shall take such steps
(including, but not limited to, the reservation of a sufficient number of shares
of its Common Stock 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 possible, in relation
to its Common Stock thereafter deliverable upon the exercise of the Rights; and
(y) the provisions of Section 11(a)(ii) hereof shall be of no effect following
the first occurrence of any Section 13 Event. The Company shall not consummate
any such merger, consolidation, sale or transfer unless prior thereto the
Company and such issuer shall have executed and delivered to the Rights Agent a
supplemental agreement containing the provisions required by this Section 13.
The provisions of this Section 13 shall similarly apply to successive mergers or
consolidations or sales or other transfers. The Company covenants and agrees
that it will not, after the Stock Acquisition Time, engage in any Section 13
Event if at the time of or after such event there are any charter or by-law
provisions or any rights, warrants or other instruments outstanding or any other
action taken which would diminish or otherwise eliminate the benefits intended
to be afforded by the Rights.
<PAGE>
Section 14. 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 fractions of 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 14(a), the current market value of a
whole Right shall be the closing price of the Rights for the Trading Day
immediately prior to the date on which such fractional Rights would have been
otherwise issuable. The closing price of the Rights for any day shall be the
last sale price, regular way, or, in case no such sale takes place on such day,
the average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed 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
Company, acting by resolution of its Board of Directors). If on any such date no
such market maker is making a market in the Rights, the fair value of the Rights
on such date as determined in good faith by the Company, acting by resolution of
its Board of Directors shall be used.
<PAGE>
(b) The Company shall not be required to issue fractions of
shares of Preferred Stock (other than fractions which are integral multiples of
one one-hundredths of a share of Preferred Stock) upon exercise of the Rights or
to distribute certificates which evidence fractional shares (other than
fractions which are integral multiples of one one-hundredths of a share of
Preferred Stock). Fractions of Preferred Stock in integral multiples of one
one-hundredths of a share of Preferred Stock 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 depositary receipts shall have
all the rights, privileges and preferences to which they are entitled as
beneficial owners of the Preferred Stock. In lieu of fractional shares which are
not integral multiples of one one-hundredths of a share of Preferred Stock, the
Company shall pay to the registered holders of Right Certificates at the time
such Right Certificates are exercised as herein provided an amount in cash equal
to the same fraction of the current market value of one share of Preferred
Stock. For purposes of this Section 14(b), the current market value of a share
of Preferred Stock shall be the closing price of a share of Preferred Stock (as
determined pursuant to the second sentence of Section 11(d)(ii)) for the Trading
Day immediately prior to the date of such exercise.
(c) The holder of a Right by the acceptance of the Rights
expressly waives his right to receive any fractional Rights or any fractional
shares upon exercise of a Right except as permitted by this Section 14.
Section 15. Rights of Action. All rights of action in respect
of this Agreement are vested in the respective registered holders of the Right
Certificates (and, prior to the Distribution Date, the registered holders of
Common Stock); and any registered holder of any Right Certificate (or, prior to
the Distribution Date, of Common Stock), without the consent of the Rights Agent
or of any holder of any other Right Certificate (or, prior to the Distribution
Date, of Common Stock), may, in his own behalf and for his own benefit, enforce,
and may institute and maintain any suit, action or proceeding against the
Company to enforce, or otherwise act in respect of, his right to exercise the
Rights evidenced by such 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 hereunder, and injunctive relief against actual or threatened
violations of the obligations of any Person subject to this Agreement.
Section 16. Agreement of Right Holders. Every holder of a
Right by accepting such Right consents and agrees with the Company and with
every other holder of a Right that:
<PAGE>
(a) prior to the Close of Business on the Distribution Date,
the Rights shall be evidenced by the certificates for shares of Common
Stock registered in the name of the holders of such shares (which
certificates for shares of Common Stock shall also constitute
Certificates for Rights) and each Right will be transferable only in
connection with the transfer of Common Stock;
(b) after the Close of Business on the Distribution Date, the
Right Certificates are transferable only on the registry books of the
Rights Agent if surrendered at the office of the Rights Agent
designated for such purpose, duly endorsed or accompanied by a proper
instrument of transfer;
(c) subject to Section 6(a) hereof, the Company and the Rights
Agent may deem and treat the Person in whose name the Right Certificate
(or, prior to the Distribution Date, the associated Common Stock
certificate) is registered as the absolute owner thereof and of the
Rights evidenced thereby (notwithstanding any notations of ownership or
writing on the Right Certificates or the associated Common Stock
certificate made by anyone other than the Company or the Rights Agent)
for all purposes whatsoever, and neither the Company nor the Rights
Agent shall be affected by any notice to the contrary; and
<PAGE>
(d) notwithstanding anything in this Agreement to the
contrary, neither the Company nor the Rights Agent shall have any
liability to any holder of a Right or other Person as a result of its
inability to perform any of its obligations under this Agreement by
reason of any preliminary or permanent injunction or other order,
decree, judgment or ruling (whether interlocutory or final) issued by a
court of competent jurisdiction or by a governmental, regulatory or
administrative agency or commission, or any statute, rule, regulation
or executive order promulgated or enacted by any governmental
authority, prohibiting or otherwise restraining performance of such
obligation; provided, however, the Company must use its best efforts to
have any such order, decree, judgment or ruling lifted or otherwise
overturned as soon as possible.
Section 17. Right Certificate Holder Not Deemed a Shareholder.
No holder, as such, of any Right or Right Certificate shall be entitled to vote,
receive dividends or be deemed for any purpose the holder of one one-hundredth
of a share of Preferred Stock or any other securities of the Company which may
at any time be issuable on the exercise of the Rights represented thereby, nor
shall anything contained herein or in any Right Certificate be construed to
confer upon the holder of any Right or 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 stockholders (except as provided in Section
24), 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.
<PAGE>
Section 18. Concerning the Rights Agent. (a) The Company
agrees to pay to the Rights Agent reasonable compensation for all services
rendered by it hereunder and, from time to time, on demand of the Rights Agent,
its reasonable expenses and counsel fees and other disbursements incurred in the
preparation, delivery, administration, execution and amendment 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, damage, judgment, fine, penalty, claim, demand, settlement,
cost or expense, incurred without gross negligence, bad faith or willful
misconduct (as finally determined by a court of competent jurisdiction) on the
part of the Rights Agent, for any action taken, suffered or omitted by the
Rights Agent in connection with the acceptance and administration of this
Agreement, including, without limitation, the costs and expenses of defending
against any claim of liability in the premises.
(b) The Rights Agent shall be authorized to rely on, shall be
protected and shall incur no liability for or in respect of any action taken,
suffered or omitted by it in connection with the acceptance and administration
of this Agreement in reliance upon any Right Certificate or certificate for
Preferred Stock or Common Stock or for other securities of the Company,
instrument of assignment or transfer, power of attorney, endorsement, affidavit,
letter, notice, direction, consent, certificate, statement, or other paper or
document believed by it to be genuine and to be signed, executed and, where
necessary, verified or acknowledged, by the proper Person or Persons.
(c) Anything in this Agreement to the contrary
notwithstanding, in no event shall the Rights Agent be liable for special,
punitive, indirect, incident 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 possibility of such loss or damage.
<PAGE>
Section 19. Mercer or Consolidation or Change of Name of
Rights Agent. (a) Any Person into which the Rights Agent or any successor Rights
Agent may be merged or with which it may be consolidated, or any Person
resulting from any merger or consolidation to which the Rights Agent or any
successor Rights Agent shall be a party, or any Person succeeding to the
shareholder services business of the Rights Agent or any successor Rights Agent,
shall be the successor to the Rights Agent under this Agreement without the
execution or filing of any paper or any further act on the part of any of the
parties hereto; provided, however, that such Person would be eligible for
appointment as a successor Rights Agent under the provisions of Section 21. The
purchase of all or substantially all of the Rights Agent's assets employed in
the performance of transfer agent activities shall be deemed a merger or
consolidation for purposes of this Section 19. 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.
(b) 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 20. Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations, and only the duties and obligations,
expressly imposed by this Agreement (and no implied duties or obligations) upon
the following terms and conditions, by all of which the Company and the holders
of Right Certificates, by their acceptance thereof, shall be bound:
<PAGE>
(a) The Rights Agent may consult with legal counsel selected
by it (which may be legal counsel for the Company), and the advice or
opinion of such counsel shall be full and complete authorization and
protection to the Rights Agent, and the Rights Agent shall incur no
liability for or in respect of any action taken, suffered or omitted by
it in good faith and in accordance with such advice or opinion.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent shall deem it necessary or desirable that
any fact or matter (including, without limitation, the identity of an
Acquiring Person and the determination of the "Current Market Price"
per share of Preferred Stock and Common Stock) be proved or established
by the Company prior to taking, suffering or omitting any action
hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a certificate signed by the
Chairman of the Board, or the President (if any) or any Vice President
and by the Treasurer or the Secretary of the Company and delivered to
the Rights Agent; and such certificate shall be full authorization and
protection to the Rights Agent, and the Rights Agent shall incur no
liability for or in respect of any action taken, suffered or omitted in
good faith by it under the provisions of this Agreement in reliance
upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its
own gross negligence, bad faith or willful misconduct (as finally
determined by a court of competent jurisdiction).
(d) The Rights Agent shall not have any liability, nor 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.
<PAGE>
(e) The Rights Agent shall not have any liability for, nor 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 adjustment required under the
provisions of Sections 11 or 13 or responsible for the manner, method
or amount of any such adjustment or the ascertaining of the existence
of facts that would require any such adjustment (except with respect to
the exercise of Rights evidenced by Right Certificates after actual
notice of any such adjustment), nor shall it be responsible for any
determination by the Board of Directors of the Company of the Current
Market Price of the Rights or Preferred Stock or Common Stock, nor
shall it by any act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any shares of Common
Stock or Preferred Stock or other securities to be issued pursuant to
this Agreement or any Right Certificate or as to whether any shares of
Preferred Stock or Common Stock or other securities 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.
<PAGE>
(g) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties
hereunder from the Chairman of the Board, the President (if any), any
Vice President, the Secretary, any Assistant Secretary, the Treasurer
or any Assistant Treasurer of the Company, and to apply to such
officers for instructions in connection with its duties, and such
instructions shall be full authorization and protection to the Rights
Agent and the Rights Agent shall incur no liability for or in respect
of any action taken, suffered or omitted by it in good faith in
accordance with instructions of any such officer.
(h) The Rights Agent and any shareholder, affiliate, 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 Person.
(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, omission,
default, neglect or misconduct of any such attorneys or agents or for
any loss to the Company, holders of the Rights or any other Person
resulting from any such act, omission, default, neglect or misconduct,
absent gross negligence, bad faith or willful misconduct in the
selection and continued employment thereof.
<PAGE>
(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 it reasonably believes that repayment of such
funds or adequate indemnification against such risk or liability is not
assured to it.
(k) If, with respect to any Right Certificate surrendered to
the Rights Agent for exercise or transfer, the certificate attached to
the form of assignment or form of election to purchase, as the case may
be, has either not been completed or indicates an affirmative response
to clause 1 and/or 2 thereof, the Rights Agent shall not take any
further action with respect to such requested exercise or transfer
without first consulting with the Company.
<PAGE>
Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under this
Agreement upon 30 days' notice in writing mailed to the Company and to each
transfer agent of the Common Stock and Preferred Stock by registered or
certified mail, and, at the Company's expense 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 Stock and Preferred Stock by registered or certified mail, and, at
the Company's expense, 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 (i) a Person organized and doing
business under the laws of the United States or of the State of New York (or of
any other state of the United States so long as such Person is authorized to do
business in the State of New York), in good standing, having an office in the
State of New York, which is subject to supervision or examination by federal or
state authority and which has at the time of its appointment as Rights Agent a
combined capital and surplus of at least $50 million or (ii) any affiliate
thereof. After appointment, the successor Rights Agent shall be vested with the
same powers, rights, duties and responsibilities as if it had been originally
named as Rights Agent without further act or deed; but the predecessor Rights
Agent shall deliver and transfer to the successor Rights Agent any property at
the time held by it hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not later than the effective
date of any such appointment the Company shall file notice thereof in writing
with the predecessor Rights Agent and each transfer agent of the Common Stock
and Preferred Stock, 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 21, however, or any defect therein, shall not affect the legality
or validity of the resignation or removal of the Rights Agent or the appointment
of the successor Rights Agent, as the case may be.
<PAGE>
Section 22. 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 resolution of its Board of
Directors, to reflect any adjustment or change in the Purchase Price and the
number or kind or class of shares of stock or other securities or property
purchasable under the Right Certificates made in accordance with the provisions
of this Agreement. In addition, in connection with the issuance or sale of
shares of Common Stock following the Distribution Date and prior to the earlier
of the Expiration Date or the Final Expiration Date, the Company (a) shall, with
respect to shares of Common Stock so issued or sold pursuant to the exercise of
stock options or under any employee plan or arrangement, or upon the exercise,
conversion or exchange of securities, notes or debentures issued by the Company,
and (b) may, in any other case if deemed necessary or appropriate by the Board
of Directors of the Company, issue Right Certificates representing the
appropriate number of Rights in connection with such issuance or sale; provided,
however, that (i) no such Right Certificate shall be issued if, and to the
extent that the Company shall be advised by counsel that such issuance would
create a significant risk of material adverse tax consequences to the Company or
the Person to whom such Right Certificate would be issued, and (ii) no such
Right Certificate shall be issued if, and to the extent that, appropriate
adjustment shall otherwise have been made in lieu of the issuance thereof.
<PAGE>
Section 23. Redemption. (a) The Company may, by resolution of
its Board of Directors, at its option, at any time prior to the earliest of (x)
the Close of Business on the tenth Business Day following the day on which the
Stock Acquisition Time occurs, (y) the Close of Business on the tenth Business
Day following the day on which the Board of Directors makes a determination that
a Person is an Adverse Person pursuant to Section 11(a)(ii)(B) hereof, or (z)
the Close of Business on the Final Expiration Date, redeem all but not less than
all of the then outstanding Rights at a redemption price of $.01 per Right
(payable in cash, shares of Common Stock and/or other securities), 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"). Prior to the Close of Business on the
date on which the Rights become non-redeemable, the Board of Directors of the
Company may extend the period of time during which the Rights may be redeemed.
Notwithstanding anything contained in this Agreement to the contrary, the Rights
shall not be exercisable after the first occurrence of a Section 11(a)(ii) Event
until such time as the Company's right of redemption hereunder has expired.
(b) In the event that, following the occurrence of a Stock
Acquisition Time and following the expiration of the right of redemption under
subparagraph (a) of this Section 23, but prior to any Section 11(a)(ii) Event or
Section 13 Event, (i) a Person who is an Acquiring Person or an Adverse Person
shall have transferred or otherwise disposed of a number of shares of Common
Stock in one transaction, or a series of transactions (not directly or
indirectly involving a purchase by the Company or any of its Subsidiaries),
which did not result in the occurrence of a Section 11(a)(ii) Event or Section
13 Event, such that such Person is thereafter a Beneficial Owner of 5% or less
of the outstanding Common Stock of the Company, and (ii) there are no other
Persons, immediately following the occurrence of the event described in clause
(i), who are Acquiring Persons or Adverse Persons, then the right of redemption
provided in subparagraph (a) of this Section 23 shall be reinstated and
thereafter all outstanding Rights shall again be subject to the provisions of
this Section 23.
<PAGE>
(c) Immediately upon the action of the Board of Directors of
the Company ordering the redemption of the Rights (or at such time subsequent to
such action as the Board of Directors may determine), 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 such 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 Rights Agent and 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 Stock. Any
notice which is mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. Each such notice of redemption
will state the method by which the payment of the Redemption Price will be made.
Neither the Company nor any of its Affiliates or Associates may redeem, acquire
or purchase any Rights at any time in any manner other than that specifically
set forth in this Section 23, and other than in connection with the repurchase
of Common Stock prior to the Distribution Date.
<PAGE>
Section 24. Notice of Certain Events. (a) In case the Company
shall propose (i) to pay any dividend payable in stock of any class to the
holders of its Preferred Stock or to make any other distribution to the holders
of its Preferred Stock (other than a regular quarterly dividend out of earnings
on retained earnings of the Company), or (ii) to offer to the holders of
Preferred Stock options, rights or warrants to subscribe for or to purchase any
additional Preferred Stock or shares of stock of any class or any other
securities, rights or options, or (iii) to effect any reclassification of the
Preferred Stock (other than a reclassification involving only the subdivision of
outstanding shares of Preferred Stock), or (iv) to effect any merger,
consolidation or other combination 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 more than 50% of the assets or
earning power or assets representing 50% or more of the cash flow of the Company
and its Subsidiaries (taken as a whole) to, any other Person, or (v) to effect
the liquidation, dissolution or winding up of the Company, then, in each such
case, the Company shall give to the Rights Agent and to each holder of a Right,
in accordance with Section 25 hereof, a notice of such proposed action, which
shall specify the record date for the purposes of such stock dividend,
distribution of rights or warrants, or the date on which such reclassification,
merger, consolidation, combination, sale, transfer, liquidation, dissolution or
winding up is to take place and the date of participation therein by the holders
of Common Stock and/or Preferred Stock, if any such date is to be fixed, and
such notice shall be so given in the case of any action covered by clause (i) or
(ii) above at least twenty days prior to the record date for determining holders
of Preferred Stock for purposes of such action, and in the case of any such
other action, at least twenty days prior to the date of the taking of such
proposed action or the date of participation therein by the holders of Common
Stock and/or Preferred Stock, whichever shall be the earlier. The failure to
give notice required by this Section 24 or any defect therein shall not affect
the legality or validity of the action taken by the Company or the vote upon any
such action.
(b In case any of the events set forth in Section 11(a)(ii) or
13 of this Agreement shall occur, then, in any such case, (i) the Company shall
as soon as practicable thereafter give to the Rights Agent and to each holder of
a Right, in accordance with Section 25, 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) and 13(a) hereof, and (ii) all
references in Section 24(a) hereof to Preferred Stock shall be deemed thereafter
to refer also to Common Stock or other securities issuable in respect of the
Rights.
Section 25. Notices. Notices or demands authorized by this
Agreement to be given or made by the Rights Agent or by the holder of any 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:
Church & Dwight Co., Inc.
<PAGE>
469 North Harrison Street
Princeton, New Jersey 08543
Attention: Mark Bilawsky, General Counsel and Secretary
Subject to the provisions of Section 21, any notice or demand authorized by this
Agreement to be given or made by the Company or by the holder of any Right
Certificate to or on the Rights Agent shall be sufficiently given or made if
sent by first-class mail, postage prepaid, addressed (until another address is
filed in writing with the Company) as follows:
ChaseMellon Shareholder Services, L.L.C.
450 W. 33rd Street
New York, NY 10001
Attention: Relationship Manager
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 (or if prior
to the Distribution Date to each holder of a certificate representing shares of
Common Stock) shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed to such Right holder (or if prior to the Distribution
Date to such holder of Common Stock) at the address of such holder as shown on
the registry books of the Company.
<PAGE>
Section 26. Supplements and Amendments. The Company may, by
resolution of its Board of Directors, and the Rights Agent shall, if the Company
so directs, supplement or amend any provision of this Agreement in any respect
whatsoever (including without limitation any extension of the period in which
the Rights may be redeemed) prior to the Close of Business on the tenth Business
Day following the earlier of the day on which the Stock Acquisition Time occurs
or the time which the Board of Directors determines that a Person is an Adverse
Person, without the approval of any holders of certificates representing shares
of Common Stock or, after the Distribution Date, of Rights Certificates. From
and after such Close of Business, without the approval of any holders of
certificates representing shares of Common Stock or of Rights Certificates, the
Company may, by resolution of its Board of Directors, 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, or (iii) to
change or supplement or make any other provisions in any manner which the
Company may deem necessary or desirable, which shall not adversely affect the
interests of the Rights Agent or holders of Right Certificates (other than an
Acquiring Person, an Adverse Person or an Affiliate or Associate thereof). Upon
the delivery of a certificate from an appropriate officer of the Company which
states that the proposed supplement or amendment is in compliance with the terms
of this Section 26, and provided such supplement or amendment does not change or
increase the Rights Agent's rights, duties, liabilities or obligations
hereunder, the Rights Agent shall execute such supplement or amendment. Prior to
the Distribution Date, the interests of the holders of Rights shall be deemed
coincident with the interests of the holders of Common Stock.
Section 27. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Rights Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
<PAGE>
Section 28. Determinations and Actions by the Board of
Directors, etc. For all purposes of this Agreement, any calculation of the
number of shares of Common Stock outstanding at any particular time, including
for purposes of determining the particular percentage of such outstanding shares
of Common Stock of which any Person is the Beneficial Owner, shall be made in
accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules
and Regulations under the Exchange Act. The Board of Directors of the Company
shall have the exclusive power and authority to administer this Agreement and to
exercise all rights and powers specifically granted to the Board or to the
Company, or as may be necessary or advisable in the administration of this
Agreement, including, without limitation, the right and power to (i) interpret
the provisions of this Agreement, and (ii) make all determinations deemed
necessary or advisable for the administration of this Agreement (including, but
not limited to, a determination to redeem or not redeem the Rights, to declare
that a Person is an Adverse Person or to amend the Agreement). All such actions,
calculations, interpretations and determinations (including, for purposes of
clause (ii) below, all omissions with respect to the foregoing) which are done
or made by the Board in good faith, (i) shall be final, conclusive and binding
on the Company, the Rights Agent, the holders of the Right Certificates and all
other Persons, and (ii) shall not subject the Board to any liability to the
holders of the Rights and Right Certificates. The Rights Agent is always
entitled to assume the Company's Board of Directors acted in good faith and
shall be fully protected and incur no liability in reliance thereon.
Section 29. Benefits of this Agreement. Nothing in this
Agreement shall be construed to give to any Person other than the Company, the
Rights Agent and the registered holders of the Right Certificates (and, prior to
the Distribution Date, registered holders of the Common Stock) any legal or
equitable right, remedy or claim under this Agreement; but this Agreement shall
be for the sole and exclusive benefit of the Company, the Rights Agent and the
registered holders of the Right Certificates (and, prior to the Distribution
Date, registered holders of the Common Stock).
<PAGE>
Section 30. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated,
provided, however, that notwithstanding anything in this Agreement to the
contrary, if any such term, provision, covenant or restriction is held by such
court or authority to be invalid, void or unenforceable and the Board of
Directors of the Company determines in its good faith judgment that severing the
invalid language from this Agreement would adversely affect the purpose or
effect of this Agreement, the right of redemption set forth in Section 23 hereof
shall be reinstated and shall not expire until the Close of Business on the
tenth Business Day following the date of such determination by the Board of
Directors and the Company shall promptly notify the Rights Agent of such
reinstatement.
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; provided, however, that all
provisions regarding the rights, duties and obligations of the Rights Agent
shall be governed by and construed in accordance with the laws of the State of
New York applicable to contracts made and to be performed entirely within such
State.
Section 32. Counterparts. This Agreement may be executed in
any number of counterparts and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
Attest: CHURCH & DWIGHT CO., INC.
/s/Mark A. Bilawsky /s/Robert A. Davies
By____________________________ By________________________________
Title: Vice President, General Title: President and Chief Executive
Counsel and Secretary Officer
Attest: CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
By____________________________ By________________________________
Title: Title:
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
Attest: CHURCH & DWIGHT CO., INC.
By____________________________ By________________________________
Title: Title:
Attest: CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
/s/Frank R. Misciagna /s/Regina Brown
By____________________________ By________________________________
Title: Assistant Vice President Title: Vice President
<PAGE>
EXHIBIT B
[Form of Right Certificate]
Certificate No. R- ____________ Rights
NOT EXERCISABLE AFTER SEPTEMBER 13, 2009, OR EARLIER IF NOTICE
OF REDEMPTION IS GIVEN. THE RIGHTS ARE SUBJECT TO REDEMPTION,
AT THE OPTION OF THE COMPANY, AT $.01 PER RIGHT ON THE TERMS
SET FORTH IN THE RIGHTS AGREEMENT. [THE RIGHTS REPRESENTED BY
THIS CERTIFICATE WERE ISSUED TO A PERSON WHO WAS AN ACQUIRING
PERSON, AN ADVERSE PERSON OR AN ASSOCIATE OR AFFILIATE THEREOF
(AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). THIS
RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BECOME
NULL AND VOID AS PROVIDED IN SECTION 7(e) OF THE RIGHTS
AGREEMENT.]*
Right Certificate
CHURCH & DWIGHT CO., INC.
<PAGE>
This certifies that ___________________________, or registered
assigns, is the registered owner of the number of Rights set forth above, each
of which entitles the owner thereof, subject to the terms, provisions and
conditions of the Rights Agreement dated as of August 20, 1999 (the "Rights
Agreement") between Church & Dwight Co., Inc., a Delaware corporation (the
"Company"), and ChaseMellon Shareholder Services, L.L.C., a New Jersey limited
liability company (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. (New York City time) on September 13, 2009, at the office
of the Rights Agent designated for such purpose, or its successors as Rights
Agent, in New York, New York, one one-hundredth of a share of Junior
Participating Cumulative Preferred Stock, par value $1.00 per share (the
"Preferred Stock"), of the Company, at a purchase price of $200.00 per
one-hundredth of a share (the "Purchase Price") in cash, or by certified bank
check or money order payable to the order of the Company, 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 shares which may be purchased upon exercise thereof) set forth above,
and the Purchase Price per share set forth above, are the number and Purchase
Price as of September 13, 1999, based on the shares of Preferred Stock of the
Company as constituted at such date.
As provided in the Rights Agreement, the Purchase Price and
the number of one one-hundredths of a share of Preferred Stock or other
securities 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 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
Church & Dwight Co., Inc. and the designated office of the Rights Agent.
<PAGE>
This Right Certificate, with or without other Right
Certificates, upon surrender at the designated office of the Rights Agent, 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 one one-hundredths of a share of Preferred Stock 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 be redeemed by the Company at its option at a
redemption price of $.01 per Right.
No fractional shares of Common Stock will be issued upon the
exercise of any Right or Rights evidenced hereby, but in lieu thereof a cash
payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to vote
or receive dividends or be deemed for any purpose the holder of Common Stock or
of any other securities of the Company which may at the time be issuable on the
exercise hereof, nor shall anything contained in the Rights Agreement or herein
be construed to confer upon the holder hereof, as such, any of the rights of a
stockholder of the Company or any right to vote for the election of directors or
upon any matter submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of meetings or
other actions affecting stockholders (except as provided in the Rights
Agreement), or to receive dividends or subscription rights, or otherwise, until
the Right or Rights evidenced by this 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.
<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 Certificate.)
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: ______________, 19__
-----------------------------------
Signature
Signatures Guaranteed:
The undersigned hereby certifies that the Rights evidenced by
this Right Certificate are not beneficially owned by an Acquiring Person or an
Adverse Person or an Affiliate or Associate thereof (as defined in the Rights
Agreement).
-----------------------------------
Signature
<PAGE>
NOTICE
The signature to the foregoing Assignment must correspond to
the name as written upon the face of this Right Certificate in every particular,
without alteration or enlargement or any change whatsoever.
<PAGE>
[Form of Election to Purchase -- 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 Adverse
Person or an Affiliate or Associate thereof (as defined in the Rights
Agreement).
Signature
NOTICE
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 Adverse 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>
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Right Certificate.)
To Church & Dwight, Co., Inc.:
The undersigned hereby irrevocably elects to exercise
_____________ Rights represented by this Right Certificate to purchase the
shares of Preferred Stock issuable upon the exercise of such Rights and requests
that certificates for such shares be issued in the name of:
Please insert social security
or other identifying number
(Please print name and address)
If such number of Rights shall not be all the Rights evidenced by this 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)
<PAGE>
Dated: ______________, 19__
------------------------------------
Signature
(Signature must conform in all respects to name of holder as
specified on the face of this Right Certificate.)
Signature Guaranteed:
<PAGE>
