SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
EG&G, INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Massachusetts 04-2052042
- ------------------------ -------------------
(State of incorporation (IRS Employer
or organization) Identification No.)
45 William Street
Wellesley, Massachusetts 02181
- ----------------------------------------- ---------------------
(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
- --------------------- -------------------------------
Preferred Stock Not Applicable
Purchase Rights
Securities to be registered pursuant to Section 12(g) of the Act:
None
-----------------------------
(Title of Class)
<PAGE>
Item 1. Description of Registrant's Securities to be
Registered
On January 25, 1995, the Board of Directors of EG&G,
Inc. (the "Company") declared a dividend of one Right for
each outstanding share of the Company's Common Stock to
stockholders of record at the close of business on February
8, 1995. Each Right entitles the registered holder to
purchase from the Company a unit consisting of one one-
thousandth of a share (a "Unit") of Series C Junior
Participating Preferred Stock, $1.00 par value (the
"Preferred Stock"), at a purchase price of $60.00 in cash
per Unit (the "Purchase Price"), subject to adjustment. The
description and terms of the Rights are set forth in a
Rights Agreement dated as of January 25, 1995 (the "Rights
Agreement") between the Company and The First National Bank
of Boston, as Rights Agent.
Initially, the Rights will be attached to all Common
Stock certificates representing shares then outstanding, and
no separate Rights Certificates will be distributed. The
Rights will separate from the Common Stock and a
Distribution Date will occur upon the earlier of (i) 10 days
following a public announcement that a person or group of
affiliated or associated persons (an "Acquiring Person") has
acquired, or obtained the right to acquire, beneficial
ownership of 20% or more of the outstanding shares of Common
Stock (the "Stock Acquisition Date"), or (ii) 10 business
days following the commencement of a tender offer or
exchange offer that would result in a person or group
beneficially owning 30% or more of such outstanding shares
of Common Stock. Until the Distribution Date or earlier
redemption or expiration of the Rights, (i) the Rights will
be evidenced by the Common Stock certificates and will be
transferred with and only with such Common Stock
certificates, (ii) new Common Stock certificates issued
after February 8, 1995 will contain a notation incorporating
the Rights Agreement by reference and (iii) the surrender
for transfer of any certificates for Common Stock
outstanding will also constitute the transfer of the Rights
associated with the Common Stock represented by such
certificate.
The Rights are not exercisable until the Distribution
Date and will expire at the close of business on February 8,
2005, subject to earlier expiration or termination as
provided in the Rights Agreement.
As soon as practicable after the Distribution Date,
separate certificates evidencing the Rights ("Rights
Certificates") will be mailed to holders of record of the
Common Stock as of the close of business on the Distribution
Date and, thereafter, such separate Rights Certificates
alone will represent the Rights. Except as otherwise
determined by the Board of Directors and except in
connection with shares of Common Stock issued upon the
exercise of employee stock options, issuances under other
employee stock benefit plans or the conversion of
convertible securities issued hereafter, only shares of
Common Stock issued prior to the Distribution Date will be
issued with Rights.
In the event that a Person becomes an Acquiring Person,
except pursuant to an offer for all outstanding shares of
Common Stock which the independent directors determine to be
fair to, and otherwise in the best interests of,
shareholders (a "Permitted Offer"), each holder of a Right
will thereafter have the right to receive, upon exercise,
that number of shares of Common Stock (or, in certain
circumstances, cash, property or other securities of the
Company) which equals the exercise price of the Right
divided by one-half of the current market price (as defined
in the Rights Agreement) of the Common Stock at the date of
the occurrence of the event. However, Rights are not
exercisable following the occurrence of any of the events
set forth above until such time as the Rights are no longer
redeemable by the Company as set forth below.
Notwithstanding any of the foregoing, following the
occurrence of the event set forth in this paragraph, all
Rights that are, or (under certain circumstances specified
in the Rights Agreement) were, beneficially owned by any
Acquiring Person will be null and void. The event set forth
in this paragraph is referred to as a "Section 11(a)(ii)
Event."
For example, at an exercise price of $60.00 per Right,
each Right not owned by an Acquiring Person (or by certain
related parties) following an event set forth in the
preceding paragraph would entitle its holder to purchase for
$60.00 such number of shares of Common Stock (or other
consideration, as noted above) as equals $60.00 divided by
one-half of the current market price (as defined in the
Rights Agreement) of the Common Stock. Assuming that the
Common Stock had a per share value of $30.00 at such time,
the holder of each valid Right would be entitled to purchase
four shares of Common Stock for $60.00.
In the event that, at any time following the Stock
Acquisition Date, (i) the Company is acquired in a merger or
other business combination transaction in which either the
Company is not the surviving corporation or its Common Stock
is changed or exchanged (other than a merger which follows a
Permitted Offer), or (ii) 50% or more of the Company's
assets or earning power is sold or transferred, each holder
of a Right (except Rights which previously have been voided
as set forth above) shall thereafter have the right to
receive, upon exercise, that number of shares of common
stock of the acquiring company which equals the exercise
price of the Right divided by one-half of the current market
price of such common stock at the date of the occurrence of
the event.
For example, at an exercise price of $60.00 per Right,
each valid Right following an event set forth in the
preceding paragraph would entitle its holder to purchase for
$60.00 such number of shares of common stock of the
acquiring company as equals $60.00 divided by one-half of
the current market price (as defined in the Rights
Agreement) of such common stock. Assuming that such common
stock had a per share value of $30.00 at such time, the
holder of each valid Right would be entitled to purchase
four shares of common stock of the acquiring company for
$60.00.
At any time after the occurrence of a Section 11(a)(ii)
Event, and subject to the concurrence of a majority of the
Continuing Directors (as defined in the Rights Agreement),
the Board of Directors of the Company may exchange the
Rights (other than Rights owned by such Acquiring Person
which have become void), in whole or in part, at an exchange
ratio of one share of Common Stock, or one one-thousandth of
a share of Preferred Stock (or of a share of a class or
series of the Company's preferred stock having equivalent
rights, preferences and privileges), per Right (subject to
adjustment).
The Purchase Price payable, and the number of Units of
Preferred Stock or other securities or property issuable,
upon exercise of the Rights are subject to adjustment from
time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or
reclassification of, the Preferred Stock, (ii) if holders of
the Preferred Stock are granted certain rights or warrants
to subscribe for Preferred Stock or convertible securities
at less than the then-current market price of the Preferred
Stock, or (iii) upon the distribution to holders of the
Preferred Stock of evidences of indebtedness or assets
(excluding regular periodic cash dividends paid out of
earnings or retained earnings) or of subscription rights or
warrants (other than those referred to above).
The number of Rights associated with each share of
Common Stock is also subject to adjustment in the event of a
stock split of the Common Stock or a stock dividend on the
Common Stock payable in Common Stock or subdivisions,
consolidations or combinations of the Common Stock
occurring, in any such case, prior to the Distribution Date.
Preferred Stock purchasable upon exercise of the Rights
will not be redeemable. Each share of Preferred Stock will
be entitled to a minimum preferential quarterly dividend
payment of $1.00 per share and will be entitled to an
aggregate dividend of 1,000 times the dividend declared per
share of Common Stock. In the event of liquidation, the
holders of the Preferred Stock will be entitled to a minimum
preferential liquidation payment of $1,000 per share and
will be entitled to an aggregate payment of 1,000 times the
payment made per share of Common Stock. Each share of
Preferred Stock will have 1,000 votes, voting together with
the Common Stock. Finally, in the event of any merger,
consolidation or other transaction in which Common Stock is
exchanged, each share of Preferred Stock will be entitled
to receive 1,000 times the amount received per share of
Common Stock. These rights are protected by customary
antidilution provisions.
Because of the nature of the Preferred Stock's
dividend, liquidation and voting rights, the value of one
one-thousandth of a share of Preferred Stock purchasable
upon exercise of each Right should approximate the value of
one share of Common Stock.
With certain exceptions, no adjustment in the Purchase
Price will be required until cumulative adjustments amount
to at least 1% of the Purchase Price. No fractional Units
will be issued and, in lieu thereof, an adjustment in cash
will be made based on the market price of the Preferred
Stock on the last trading date prior to the date of
exercise.
At any time until ten days following the Stock
Acquisition Date, the Company may redeem the Rights in
whole, but not in part, at a price of $.01 per Right (the
"Redemption Price"), payable in cash or stock. Immediately
upon the action of the Board of Directors ordering
redemption of the Rights, the Rights will terminate and the
only right of the holders of Rights will be to receive the
Redemption Price.
Until a Right is exercised, the holder thereof, as
such, will have no rights as a stockholder of the Company,
including, without limitation, the right to vote or to
receive dividends. While the distribution of the Rights
will not be taxable to stockholders or to the Company,
stockholders may, depending upon the circumstances,
recognize taxable income in the event that the Rights become
exercisable for Common Stock (or other consideration) of the
Company or for common stock of the acquiring company as set
forth above.
Prior to the Distribution Date, the terms of the Rights
are subject to amendment by the Board of Directors without
the consent of the holders of the Rights, except that (i)
the redemption price of the Rights, the exercise price of
the Rights and the number of Shares of Preferred Stock
issuable upon exercise of the Rights are not subject to
amendment and (b) the expiration date of the Rights is
subject to amendment (including acceleration) only in
connection with an acquisition of the Company at a price
determined to be fair by a majority of the members of the
Company's Board of Directors who are not officers of the
Company and who are not affiliated with the acquiring party.
After the Distribution Date, only limited terms of the
Rights are subject to amendment by the Board, and the
consent of the Continuing Directors (as defined in the
Rights Agreement) is required where appropriate to protect
the Rights.
As of January 1, 1995, there were 55,123,595 shares of
Common Stock outstanding. Stockholders will receive one
Right for each outstanding share of Common Stock held by
them as of February 8, 1995. As long as the Rights are
attached to the Common Stock, one additional Right (as such
number may be adjusted pursuant to the provisions of the
Rights Agreement) shall be deemed to be delivered for each
share of Common Stock issued or delivered by the Company in
the future. In addition, following the Distribution Date
and prior to the expiration, redemption or exchange of the
Rights, the Company may issue Rights when it issues Common
Stock only if the Board of Directors deems it to be
necessary or appropriate or in connection with the issuance
of shares of Common Stock pursuant to the exercise of stock
options or under employee plans or upon the exercise,
conversion or exchange of certain securities of the Company.
Seventy thousand shares of Preferred Stock are initially
reserved for issuance upon exercise of the Rights.
The Rights have certain anti-takeover effects. The
Rights will cause substantial dilution to a person or group
that attempts to acquire the Company without conditioning
the offer on a substantial number of Rights being acquired.
The Rights, however, should not prevent a takeover bid by a
prospective offeror willing to make an offer at a fair price
and otherwise in the best interests of the Company and its
stockholders, as determined by a majority of unaffiliated
Directors, or willing to negotiate with the Board of
Directors. The Rights also should not interfere with any
merger or other business combination approved by the Board
of Directors of the Company.
The Preferred Stock purchasable upon exercise of the
Rights shall be subject to the prior and superior rights of
the holders of any shares of any series of Preferred Stock
(or any similar stock) ranking prior and superior to the
shares of Series C Junior Participating Preferred Stock, but
shall be senior to the Common Stock, as to the payment of
dividends. Each share of Preferred Stock will have a
quarterly dividend rate equal to the greater of a) $1.00 or
b) 1,000 times the aggregate per share amount of all cash
dividends, and 1,000 times the aggregate per share amount
(payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in shares of
Common Stock or a subdivision thereof, declared on the
Common Stock, subject to certain adjustments. Such
dividends shall be cumulative. The Preferred Stock will not
be redeemable. In the event of liquidation, the holders of
the Preferred Stock will receive a preferred liquidation
payment of $1,000 per share or, if greater, an amount equal
to 1,000 times the payment to be made per share of Common
Stock, subject to certain adjustments. Each share of
Preferred Stock shall entitle the holder thereof to 1,000
votes on all matters submitted to a vote of the stockholders
of the Corporation. Except as otherwise provided in the
Certificate of Vote of Directors Establishing a Series of a
Class of Stock, the Preferred Stock will vote together with
the Common Stock as one class. The Preferred Stock will
vote as a separate class for additional directors if
dividends are in arrears by a specified amount. In the
event of any consolidation, merger, combination or other
transaction in which shares of Common Stock are exchanged
for or changed into other stock or securities, cash and/or
other property, each share of Preferred Stock will be
entitled to receive 1,000 times the aggregate amount of
stock or securities, cash and/or other property, into which
or for which each share of Common Stock is changed or
exchanged, subject to certain adjustments. The foregoing
dividend and liquidation rights of the Preferred Stock are
protected against dilution in the event additional shares of
Common Stock are issued pursuant to a stock split, stock
dividend or similar recapitalization. Fractional shares of
Preferred Stock (other than fractional shares evenly
divisible by one one-thousandth) will not be issuable and in
lieu thereof a cash payment will be made to such holders.
Because of the nature of the Preferred Stock's dividend,
voting and liquidation rights, the value of the interest in
the one one-thousandth of a share of Preferred Stock
purchasable with each Right is intended to approximate the
value of one share of Common Stock.
The Form of Rights Agreement between the Company and
the Rights Agent specifying the terms of the Rights, which
includes as Exhibit A the Terms of the Series C Junior
Participating Preferred Stock, as Exhibit B the Form of
Rights Certificate, and as Exhibit C the Summary of Rights
to Purchase Preferred Stock, is attached hereto as Exhibit 1
and is incorporated herein by reference. The foregoing
description of the Rights does not purport to be complete
and is qualified in its entirety by reference to such
Exhibits.
<PAGE>
Item 2. Exhibits.
1 Form of Rights Agreement, dated as of January 25,
1995 between EG&G, Inc. and The First National
Bank of Boston, which includes as Exhibit A the
Terms of Series C Junior Participating Preferred
Stock, as Exhibit B the Form of Rights
Certificate, and as Exhibit C the Summary of
Rights to Purchase Preferred Stock. Pursuant to
the Rights Agreement, Rights Certificates will not
be mailed until after the Distribution Date (as
that term is defined in the Rights Agreement).
2 Press Release dated January 25, 1995.
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, the registrant has duly
caused this registration statement to be signed on its
behalf by the undersigned, thereto duly authorized.
Date: January 25, 1995 EG&G, INC.
/s/ Murray Gross
Murray Gross
Vice President and
General Counsel and Clerk
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page
1 Form of Rights Agreement, dated as of
January 25, 1995, between EG&G, Inc.
and The First National Bank of Boston,
which includes as Exhibit A Terms of
the Series C Junior Participating
Preferred Stock, as Exhibit B the Form
of Rights Certificate, and as Exhibit
C the Summary of Rights to Purchase
Preferred Stock.
2 Press Release dated January 25, 1995
<PAGE>
------------------------------------
EG&G, INC.
and
THE FIRST NATIONAL BANK OF BOSTON
Rights Agent
______________
Rights Agreement
Dated as of January __, 1995
=============================
<PAGE>
<TABLE>
Table of Contents
<S> <C>
Section Page
1. Certain Definitions . . . . . . . . . . . . . . . . . . . 1
2. Appointment of Rights Agent . . . . . . . . . . . . . . . 6
3. Issue of Rights . . . . . . . . . . . . . . . . . . . . . 6
4. Form of Rights Certificates . . . . . . . . . . . . . . . 8
5. Countersignature and Registration . . . . . . . . . . . . 10
6. Transfer, Split Up, Combination and Exchange
of Rights Certificates; Mutilated, Destroyed,
Lost or Stolen Rights Certificates. . . . . . . . . . . 10
7. Exercise of Rights; Purchase Price;
Expiration Date of Rights. . . . . . . . . . . . . . . .11
8. Cancellation and Destruction of
Rights Certificates. . . . . . . . . . . . . . . . . . .14
9. Reservation and Availability of Capital Stock . . . . .. .14
10. Preferred Stock Record Date . . . . . . . . . . . . . . . 16
11. Adjustment of Purchase Price, Number and
Kind of Shares or Number of Rights . . . . . . . . . . .16
12. Certificate of Adjusted Purchase Price or
Number of Shares . . . . . . . . . . . . . . . . . . . .26
13. Consolidation, Merger or Sale or Transfer
of Assets or Earning Power . . . . . . . . . . . . . . .27
14. Fractional Rights and Fractional Shares . . . . . . . . . 30
15. Rights of Action. . . . . . . . . . . . . . . . . . . . . 31
16. Agreement of Rights Holders . . . . . . . . . . . . . . . 32
17. Rights Certificate Holder Not Deemed
a Stockholder. . . . . . . . . . . . . . . . . . . . . .32
18. Concerning the Rights Agent . . . . . . . . . . . . . . . 33
19. Merger or Consolidation or Change of
Name of Rights Agent . . . . . . . . . . . . . . . . . .33
20. Duties of Rights Agent. . . . . . . . . . . . . . . . . . 34
21. Change of Rights Agent. . . . . . . . . . . . . . . . . . 37
22. Issuance of New Rights Certificates . . . . . . . . . . . 38
23. Redemption and Termination. . . . . . . . . . . . . . . . 38
24. Exchange. . . . . . . . . . . . . . . . . . . . . . . . . 39
25. Notice of Certain Events. . . . . . . . . . . . . . . . . 40
<PAGE>
26. Notices . . . . . . . . . . . . . . . . . . . . . . . . . 41
27. Supplements and Amendments. . . . . . . . . . . . . . . . 42
28. Successors. . . . . . . . . . . . . . . . . . . . . . . . 43
29. Determinations and Actions by the
Board of Directors, etc. . . . . . . . . . . . . . . . .43
30. Benefits of this Agreement. . . . . . . . . . . . . . . . 43
31. Severability. . . . . . . . . . . . . . . . . . . . . . . 44
32. Governing Law . . . . . . . . . . . . . . . . . . . . . . 44
33. Counterparts. . . . . . . . . . . . . . . . . . . . . . . 44
34. Descriptive Headings. . . . . . . . . . . . . . . . . . . 44
</TABLE>
Exhibit A -- Terms of Series C Junior Participating Preferred Stock
Exhibit B -- Form of Rights Certificate
Exhibit C -- Summary of Rights
<PAGE>
RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of January 25, 1995 (the
"Agreement"), between EG&G, Inc., a Massachusetts
corporation (the "Company"), and The First National Bank of
Boston, a national banking association, as Rights Agent (the
"Rights Agent").
W I T N E S S E T H
WHEREAS, on January 25, 1995 the Board of Directors of
the Company (the "Board") authorized and declared a dividend
distribution of one Right for each share of Common Stock (as
hereinafter defined) of the Company outstanding at the close
of business on February 8, 1995 (the "Record Date"), and
authorized the issuance of one Right (as such number may
hereinafter be adjusted pursuant to the provisions of
Section 11(p) hereof) for each share of Common Stock of the
Company issued between the Record Date (whether originally
issued or delivered from the Company's treasury) and the
earlier of the Expiration Date and the Distribution Date,
each Right initially representing the right to purchase one
one-thousandth of a share of Series C Junior Participating
Preferred Stock of the Company having the rights, powers and
preferences set forth on Exhibit A attached hereto, upon the
terms and subject to the conditions hereinafter set forth
(the "Rights");
NOW, THEREFORE, in consideration of the premises and
the mutual agreements herein set forth, the parties hereby
agree as follows:
Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who
or which, together with all Affiliates and Associates of
such Person, shall be the Beneficial Owner of 20% or more of
the shares of Common Stock then outstanding, but shall not
include (i) the Company, (ii) any Subsidiary of the Company,
(iii) any employee benefit plan of the Company or of any
Subsidiary of the Company, or (iv) any Person organized,
appointed or established by the Company for or pursuant to
the terms of any such plan. Notwithstanding the foregoing,
no Person shall become an "Acquiring Person" as the result
of an acquisition of Common Stock by the Company which, by
reducing the number of shares outstanding, increases the
proportionate number of shares beneficially owned by such
Person to 20% or more of the shares of Common Stock of the
Company then outstanding; provided, however, that if a
Person shall become the Beneficial Owner of 20% or more of
the shares of Common Stock of the Company then outstanding
by reason of share purchases by the Company and shall, after
such share purchases by the Company, become the Beneficial
Owner of any additional Common Stock of the Company, then
such Person shall be deemed to be an "Acquiring Person."
Notwithstanding the foregoing, if the Board of Directors of
the Company determines in good faith that a Person who would
otherwise be an "Acquiring Person," as defined pursuant to
the foregoing provisions of this paragraph (a), has become
such inadvertently, and such Person divests as promptly as
practicable a sufficient number of shares of Common Stock so
that such Person would no longer be an "Acquiring Person,"
as defined pursuant to the foregoing provisions of this
paragraph (a), then such Person shall not be deemed to be an
"Acquiring Person" for any purposes of this Agreement unless
and until such Person shall again become an "Acquiring
Person."
(b) "Act" shall mean the Securities Act of 1933,
as amended.
(c) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of
the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended and in effect on the date
of this Agreement (the "Exchange Act").
(d) A Person shall be deemed the "Beneficial
Owner" of, and shall be deemed to "beneficially own," any
securities:
(i) which such Person or any of such
Person's Affiliates or Associates, directly or
indirectly, has the right to acquire (whether such
right is exercisable immediately or only after the
passage of time) pursuant to any agreement, arrangement
or understanding (other than customary agreements with
and between underwriters and selling group members with
respect to a bona fide public offering of securities),
whether or not in writing, or upon the exercise of
conversion rights, exchange rights, other rights,
warrants or options, or otherwise; provided, however,
that a Person shall not be deemed the "Beneficial
Owner" of, or to "beneficially own," (A) securities
tendered pursuant to a tender or exchange offer made by
such Person or any of such Person's Affiliates or
Associates until such tendered securities are accepted
for purchase or exchange, or (B) securities issuable
upon exercise of Rights at any time prior to the
occurrence of a Triggering Event, or (C) securities
issuable upon exercise of Rights from and after the
occurrence of a Triggering Event which Rights were
acquired by such Person or any of such Person's
Affiliates or Associates prior to the Distribution
Date or pursuant to Section 3(a) or Section 22 hereof
(the "Original Rights") or pursuant to Section 11(i)
hereof in connection with an adjustment made with
respect to any Original Rights;
(ii) which such Person or any of such
Person's Affiliates or Associates, directly or
indirectly, has the right to vote or dispose of or has
"beneficial ownership" of (as determined pursuant to
Rule 13d-3 of the General Rules and Regulations under
the Exchange Act, or any comparable or successor rule),
including pursuant to any agreement, arrangement or
understanding (other than customary agreements with and
between underwriters and selling group members with
respect to a bona fide public offering of securities),
whether or not in writing; provided, however, that a
Person shall not be deemed the "Beneficial Owner" of,
or to "beneficially own," any security under this
subparagraph (ii) as a result of an agreement,
arrangement or understanding to vote such security if
such agreement, arrangement or understanding: (A)
arises solely from a revocable proxy given in response
to a public proxy or consent solicitation made pursuant
to, and in accordance with, the applicable provisions
of the General Rules and Regulations under the Exchange
Act, and (B) is not then reportable by such Person on
Schedule 13D under the Exchange Act (or any comparable
or successor report); or
(iii) which are beneficially owned, directly
or indirectly, by any other Person (or any Affiliate or
Associate thereof) with which such Person (or any of
such Person's Affiliates or Associates) has any
agreement, arrangement or understanding (other than
customary agreements with and between underwriters and
selling group members with respect to a bona fide
public offering of securities), whether or not in
writing, for the purpose of acquiring, holding, voting
(except pursuant to a revocable proxy as described in
the proviso to subparagraph (ii) of this paragraph (d))
or disposing of any voting securities of the Company.
Notwithstanding anything in this definition of
Beneficial Ownership to the contrary, the phrase "then
outstanding," when used with reference to a Person's
Beneficial Ownership of securities of the Company, shall
mean the number of such securities then issued and
outstanding together with the number of such securities not
then actually issued and outstanding which such Person would
be deemed to own beneficially hereunder.
(e) "Business Day" shall mean any day other than
a Saturday, Sunday or a day on which banking institutions in
the Commonwealth of Massachusetts are authorized or
obligated by law or executive order to close.
(f) "Close of business" on any given date shall
mean 5:00 P.M., Boston time, on such date; provided,
however, that if such date is not a Business Day it shall
mean 5:00 P.M., Boston time, on the next succeeding Business
Day.
(g) "Common Stock" shall mean the common stock,
$1.00 par value, of the Company, except that "Common Stock"
when used with reference to any Person other than the
Company shall mean the capital stock of such Person with the
greatest voting power, or the equity securities or other
equity interest having power to control or direct the
management, of such Person.
(h) "Common stock equivalents" shall have the
meaning set forth in Section 11(a)(iii) hereof.
(i) "Continuing Director" shall mean (i) any
member of the Board, while such Person is a member of the
Board, who is not an Acquiring Person, or an Affiliate or
Associate of an Acquiring Person, or a representative of an
Acquiring Person or of any such Affiliate or Associate, and
was a member of the Board prior to the date of this
Agreement, or (ii) any Person who subsequently becomes a
member of the Board, while such Person is a member of the
Board, who is not an Acquiring Person, or an Affiliate or
Associate of an Acquiring Person, or a representative of an
Acquiring Person or of any such Affiliate or Associate, if
such Person's nomination for election or election to the
Board is recommended or approved by a majority of the
Continuing Directors.
(j) "Current market price" shall have the meaning
set forth in Section 11(d)(i) hereof.
(k) "Current Value" shall have the meaning set
forth in Section 11(a)(iii) hereof.
(l) "Distribution Date" shall have the meaning
set forth in Section 3(a) hereof.
(m) "Exchange Act" shall have the meaning set
forth in Section 1(c) hereof.
(n) "Expiration Date" shall have the meaning set
forth in Section 7(a) hereof.
(o) "Final Expiration Date" shall mean the close
of business on February 8, 2005.
(p) "Permitted Offer" shall have the meaning set
forth in Section 11(a)(ii) hereof.
(q) "Person" shall mean any individual, firm,
corporation, partnership or other entity.
(r) "Preferred Stock" shall mean shares of Series
C Junior Participating Preferred Stock, $1.00 par value, of
the Company having the rights and preferences set forth in
Exhibit A attached hereto and, to the extent that there is
not a sufficient number of shares of Series C Junior
Participating Preferred Stock authorized to permit the full
exercise of the Rights, any other series of Preferred Stock,
$1.00 par value, of the Company designated for such purpose
containing terms substantially similar to the terms of the
Series C Junior Participating Preferred Stock.
(s) "Principal Party" shall have the meaning set
forth in Section 13(b) hereof.
(t) "Purchase Price" shall have the meaning set
forth in Section 4(a) hereof.
(u) "Record Date" shall have the meaning set
forth in the WHEREAS clause at the beginning of this
Agreement.
(v) "Redemption Price" shall have the meaning set
forth in Section 23(a) hereof.
(w) "Rights" shall have the meaning set forth in
the WHEREAS clause at the beginning of this Agreement.
(x) "Rights Certificates" shall have the meaning
set forth in Section 3(a) hereof.
(y) "Section 11(a)(ii) Event" shall mean an event
described in the first sentence of Section 11(a)(ii) hereof.
(z) "Section 11(a)(ii) Trigger Date" shall have
the meaning set forth in Section 11(a)(iii) hereof.
(aa) "Section 13 Event" shall mean any event
described in clauses (x), (y) or (z) of Section 13(a)
hereof.
(bb) "Spread" shall have the meaning set forth in
Section 11(a)(iii) hereof.
(cc) "Stock Acquisition Date" shall mean the first
date of public announcement (which, for purposes of this
definition, shall include, without limitation, a report
filed pursuant to Section 13(d) under the Exchange Act) by
the Company or an Acquiring Person that an Acquiring Person
has become such.
(dd) "Subsidiary" shall mean, with reference to
any Person, any corporation of which an amount of voting
securities sufficient to elect at least a majority of the
directors of such corporation is beneficially owned,
directly or indirectly, by such Person, or otherwise
controlled by such Person.
(ee) "Substitution Period" shall have the meaning
set forth in Section 11(a)(iii) hereof.
(ff) "Trading Day" shall have the meaning set
forth in Section 11(d)(i) hereof.
(gg) "Triggering Event" shall mean any Section
11(a)(ii) Event or any Section 13 Event.
Section 2. Appointment of Rights Agent. The Company
hereby appoints the Rights Agent to act as agent for the
Company and the holders of the Rights (who, in accordance
with Section 3 hereof, shall prior to the Distribution Date
also be the holders of the Common Stock) in accordance with
the terms and conditions hereof, and the Rights Agent hereby
accepts such appointment. The Company may from time to time
appoint such Co-Rights Agents as it may deem necessary or
desirable.
Section 3. Issue of Rights.
(a) Until the earlier of (i) the close of
business on the tenth day after the Stock Acquisition Date
(or, if the tenth day after the Stock Acquisition Date
occurs before the Record Date, the close of business on the
Record Date), or (ii) the close of business on the tenth
Business Day (or such later date as the Board of Directors
shall determine) after the date that a tender or exchange
offer by any Person (other than the Company, any Subsidiary
of the Company, any employee benefit plan of the Company or
of any Subsidiary of the Company, or any Person organized,
appointed or established by the Company for or pursuant to
the terms of any such plan) is first published or sent or
given within the meaning of Rule 14d-2(a) of the General
Rules and Regulations under the Exchange Act, if upon
consummation thereof, such Person would be the Beneficial
Owner of 30% or more of the shares of Common Stock then
outstanding (the earlier of (i) and (ii) being herein
referred to as the "Distribution Date"), (x) the Rights will
be evidenced (subject to the provisions of paragraph (b) of
this Section 3) by the certificates for the Common Stock
registered in the names of the holders of the Common Stock
(which certificates for Common Stock shall be deemed also to
be certificates for Rights) and not by separate
certificates, and (y) the Rights will be transferable only
in connection with the transfer of the underlying shares of
Common Stock (including a transfer to the Company). As soon
as practicable after the Distribution Date, the Rights Agent
will send by first-class, insured, postage prepaid mail, to
each record holder of the Common Stock as of the close of
business on the Distribution Date, at the address of such
holder shown on the records of the Company, one or more
rights certificates, in substantially the form of Exhibit B
hereto (the "Rights Certificates"), evidencing one Right for
each share of Common Stock so held, subject to adjustment as
provided herein. In the event that an adjustment in the
number of Rights per share of Common Stock has been made
pursuant to Section 11(p) hereof, at the time of
distribution of the Right Certificates, the Company shall
make the necessary and appropriate rounding adjustments (in
accordance with Section 14(a) hereof) so that Rights
Certificates representing only whole numbers of Rights are
distributed and cash is paid in lieu of any fractional
Rights. As of and after the Distribution Date, the Rights
will be evidenced solely by such Rights Certificates.
(b) As promptly as practicable following 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, by first-class, postage
prepaid mail, to each record holder of the Common Stock as
of the close of business on the Record Date, at the address
of such holder shown on the records of the Company. With
respect to certificates for the Common Stock outstanding as
of the close of business on the Record Date, until the
Distribution Date, the Rights will be evidenced by such
certificates for the Common Stock and the registered holders
of the Common Stock shall also be the registered holders of
the associated Rights.
(c) Rights shall be issued in respect of all
shares of Common Stock that are issued (either as an
original issuance or from the Company's treasury) after the
Record Date but prior to the earlier of the Distribution
Date or the Expiration Date. Certificates representing such
shares of Common Stock (including, without limitation,
certificates issued upon transfer or exchange of Common
Stock) shall also be deemed to be certificates for Rights,
and shall bear the following legend:
This certificate also evidences and entitles the
holder hereof to certain Rights as set forth in the
Rights Agreement between EG&G, Inc. (the "Company") and
The First National Bank of Boston (the "Rights Agent")
dated as of January 25, 1995 (the "Rights Agreement"),
the terms of which are hereby incorporated herein by
reference and a copy of which is on file at the
principal offices of the Company. Under certain
circumstances, as set forth in the Rights Agreement,
such Rights will be evidenced by separate certificates
and will no longer be evidenced by this certificate.
The Company will mail to the holder of this certificate
a copy of the Rights Agreement, as in effect on the
date of mailing, without charge promptly after receipt
of a written request therefor. Under certain
circumstances set forth in the Rights Agreement, Rights
issued to, or held by, any Person who is, was or
becomes an Acquiring Person or any Affiliate or
Associates thereof (as such terms are defined in the
Rights Agreement), whether currently held by or on
behalf of such Person or by any subsequent holder, may
become null and void.
With respect to such certificates containing the foregoing
legend, until the earlier of (i) the Distribution Date or
(ii) the Expiration Date, the Rights associated with the
Common Stock represented by such certificates shall be
evidenced by such certificates alone and registered holders
of Common Stock shall also be the registered holders of the
associated Rights.
(d) Until the earlier of the Distribution Date or
the Expiration Date, the transfer of any certificates
representing shares of Common Stock in respect of which
Rights have been issued shall also constitute the transfer
of the Rights associated with such shares of Common Stock.
In the event that the Company purchases or acquires any
shares of Common Stock after the Record Date but prior to
the Distribution Date, any Rights associated with such
shares of Common Stock shall be deemed cancelled and retired
so that the Company shall not be entitled to exercise any
Rights associated with the shares of Common Stock which are
no longer outstanding.
(e) In connection with the issuance or sale of
shares of Common Stock following the Distribution Date and
prior to the Expiration Date, the Company (i) 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 issued by the Company, and (ii) may, in any
other case, if deemed necessary or appropriate by the Board
of Directors of the Company, issue Rights Certificates
representing the appropriate number of Rights in connection
with such issuance or sale; provided, however, that (A) no
such Rights Certificate shall be issued if, and to the
extent that, the Company shall be advised by counsel that
such issuance would create a significant risk of material
adverse tax consequences to the Company or the Person to
whom such Rights Certificate would be issued, and (B) no
such Rights Certificate shall be issued if, and to the
extent that, appropriate adjustment shall otherwise have
been made in lieu of the issuance thereof.
Section 4. Form of Rights Certificates.
(a) The Rights 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 and as are not inconsistent with the
provisions of this Agreement, or as may be required to
comply with any applicable law or with any rule or
regulation made pursuant thereto or with any rule or
regulation of any stock exchange or over-the-counter market
on which the Rights may from time to time be listed, or to
conform to usage. Subject to the provisions of Section 11
and Section 22 hereof, the Rights Certificates, whenever
distributed, shall entitle the holders thereof to purchase
such number of one one-thousandths of a share of Preferred
Stock as shall be set forth therein at the price set forth
therein (such exercise price per one one-thousandth of a
share, the "Purchase Price"), but the amount and type of
securities purchasable upon the exercise of each Right and
the Purchase Price thereof shall be subject to adjustment as
provided herein.
(b) Any Rights Certificate issued pursuant to
Section 3 or Section 22 hereof that represents Rights
beneficially owned by persons known to be: (i) an Acquiring
Person or any Associate or Affiliate of an Acquiring Person,
(ii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee after the
Acquiring Person becomes such, or (iii) a transferee of an
Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee prior to or concurrently with the
Acquiring Person becoming such and receives such Rights
pursuant to either (A) a transfer (whether or not for
consideration) from the Acquiring Person to holders of
equity interests in such Acquiring Person or to any Person
with whom such Acquiring Person has any continuing
agreement, arrangement or understanding regarding the
transferred Rights or (B) a transfer which the Board of
Directors of the Company has determined is part of a plan,
arrangement or understanding that has as a primary purpose
or effect avoidance of Section 7(e) hereof, and any Rights
Certificate issued pursuant to Section 6 or Section 11
hereof upon transfer, exchange, replacement or adjustment of
any other Rights Certificate referred to in this sentence,
shall contain (to the extent feasible) the following legend:
The Rights represented by this Rights Certificate are
or were beneficially owned by a Person who was or
became an Acquiring Person or an Affiliate or Associate
of an Acquiring Person (as such terms are defined in
the Rights Agreement). Accordingly, this Rights
Certificate and the Rights represented hereby may
become null and void in the circumstances specified in
Section 7(e) of such Agreement.
The absence of the foregoing legend on any Rights
Certificate shall in no way affect any of the other
provisions of this Agreement, including, without limitation,
the provisions of Section 7(e) hereof.
Section 5. Countersignature and Registration.
(a) The Rights Certificates shall be executed on
behalf of the Company by its Chairman of the Board, its
President or any Vice President, either manually or by
facsimile signature, and shall have affixed thereto the
Company's seal or a facsimile thereof, which shall be
attested by the Clerk or an Assistant Clerk of the Company,
either manually or by facsimile signature. The Rights
Certificates shall be manually countersigned by the Rights
Agent and shall not be valid for any purpose unless so
countersigned. In case any officer of the Company who shall
have signed any of the Rights Certificates shall cease to be
such officer of the Company before countersignature by the
Rights Agent and issuance and delivery by the Company, such
Rights Certificates, nevertheless, may be countersigned by
the Rights Agent and issued and delivered by the Company
with the same force and effect as though the person who
signed such Rights Certificates had not ceased to be such
officer of the Company; and any Rights Certificates may be
signed on behalf of the Company by any person who, at the
actual date of the execution of such Rights Certificate,
shall be a proper officer of the Company to sign such Rights
Certificate, although at the date of the execution of this
Rights Agreement any such person was not such an officer.
(b) Following the Distribution Date, the Rights
Agent shall keep or cause to be kept, at its office
designated as the appropriate place for surrender of Rights
Certificates upon exercise or transfer, books for
registration and transfer of the Rights Certificates issued
hereunder. Such books shall show the names and addresses of
the respective holders of the Rights Certificates, the
number of Rights evidenced on its face by each of the Rights
Certificates, the Certificate number and the date of each of
the Rights Certificates.
Section 6. Transfer, Split Up, Combination and
Exchange of Rights Certificates; Mutilated, Destroyed, Lost
or Stolen Rights Certificates.
(a) Subject to the provisions of Section 4(b),
Section 7(e) and Section 14 hereof, at any time after the
close of business on the Distribution Date, and at or prior
to the close of business on the Expiration Date, any Rights
Certificate or Certificates (other than Rights Certificates
representing Rights that have become void pursuant to
Section 7(e) hereof or that have been exchanged pursuant to
Section 24 hereof) may be transferred, split up, combined or
exchanged for another Rights Certificate or Certificates,
entitling the registered holder to purchase a like number of
one one-thousandths of a share of Preferred Stock (or,
following a Triggering Event, Common Stock, other
securities, cash or other assets, as the case may be) as the
Rights Certificate or Certificates surrendered then entitled
such holder (or former holder in the case of a transfer) to
purchase. Any registered holder desiring to transfer, split
up, combine or exchange any Rights Certificate or
Certificates shall make such request in writing delivered to
the Rights Agent, and shall surrender the Rights Certificate
or Certificates to be transferred, split up, combined or
exchanged, with the form of assignment and certificate
appropriately executed, at the office of the Rights Agent
designated for such purpose. Neither the Rights Agent nor
the Company shall be obligated to take any action whatsoever
with respect to the transfer of any such surrendered Rights
Certificate until the registered holder shall have completed
and signed the certificate contained in the form of
assignment on the reverse side of such Rights Certificate
and shall have provided such additional evidence of the
identity of the Beneficial Owner (or former Beneficial
Owner) or Affiliates or Associates thereof as the Company
shall reasonably request. Thereupon the Rights Agent shall,
subject to Section 4(b), Section 7(e) and Section 14 hereof,
countersign and deliver to the Person entitled thereto a
Rights Certificate or Rights Certificates, as the case may
be, as so requested. The Company may require payment of a
sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer, split up,
combination or exchange of Rights Certificates.
(b) Upon receipt by the Company and the Rights
Agent of evidence reasonably satisfactory to them of the
loss, theft, destruction or mutilation of a Rights
Certificate, and, in case of loss, theft or destruction, of
indemnity or security reasonably satisfactory to them, and
reimbursement to the Company and the Rights Agent of all
reasonable expenses incidental thereto, and upon surrender
to the Rights Agent and cancellation of the Rights
Certificate if mutilated, the Company will execute and
deliver a new Rights Certificate of like tenor to the Rights
Agent for countersignature and delivery to the registered
owner in lieu of the Rights Certificate so lost, stolen,
destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights.
(a) Subject to Section 7(e) hereof, the
registered holder of any Rights Certificate may exercise the
Rights evidenced thereby (except as otherwise provided
herein including, without limitation, the restrictions on
exercisability set forth in Section 9(c), Section 11(a)(iii)
and Section 23(a) hereof) in whole or in part at any time
after the Distribution Date upon surrender of the Rights
Certificate, with the form of election to purchase and the
certificate on the reverse side thereof duly executed, to
the Rights Agent at the office of the Rights Agent
designated for such purpose, together with payment of the
aggregate Purchase Price with respect to the total number of
one one-thousandths of a share of Preferred Stock (or other
securities, cash or other assets, as the case may be) as to
which such surrendered Rights are then exercisable, at or
prior to the earlier of (i) the Final Expiration Date, (ii)
the time at which the Rights expire as provided in Section
13(d) hereof, (iii) the time at which the Rights are
redeemed as provided in Section 23 hereof, or (iv) the time
at which such Rights are exchanged as provided in Section 24
hereof (the earlier of (i), (ii), (iii) and (iv) being
herein referred to as the "Expiration Date").
(b) The Purchase Price for each one one-
thousandth of a share of Preferred Stock pursuant to the
exercise of a Right shall initially be $60.00, and shall be
subject to adjustment from time to time as provided in
Sections 11 and 13(a) hereof and shall be payable in
accordance with paragraph (c) below.
(c) Upon receipt of a Rights Certificate
representing exercisable Rights, with the form of election
to purchase and the certificate duly executed, accompanied
by payment, with respect to each Right so exercised, of the
Purchase Price per one one-thousandth of a share of
Preferred Stock (or other shares, securities, cash or other
assets, as the case may be) to be purchased as set forth
below and an amount equal to any applicable transfer tax,
the Rights Agent shall, subject to Section 20(k) hereof,
thereupon promptly (i) (A) requisition from any transfer
agent of the shares of Preferred Stock (or make available,
if the Rights Agent is the transfer agent for such shares)
certificates for the total number of one one-thousandths of
a share of Preferred Stock to be purchased and the Company
hereby authorizes its transfer agent to comply with 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-
thousandths 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 requests, (ii) requisition from the Company
the amount of cash, if any, to be paid in lieu of fractional
shares in accordance with Section 14 hereof, (iii) after
receipt of such certificates or depositary receipts, cause
the same to be delivered to or upon the order of the
registered holder of such Rights Certificate, registered in
such name or names as may be designated by such holder, and
(iv) after receipt thereof, deliver such cash, if any, to or
upon the order of the registered holder of such Rights
Certificate. The payment of the Purchase Price (as such
amount may be reduced pursuant to Section 11(a)(iii) hereof)
may be made in cash or by certified bank check or money
order payable to the order of the Company. In the event
that the Company is obligated to issue other securities
(including Common Stock) of the Company, pay cash and/or
distribute other property pursuant to Section 11(a) hereof,
the Company shall make all arrangements necessary so that
such other securities, cash and/or other property are
available for distribution by the Rights Agent, if and when
appropriate.
(d) In case the registered holder of any Rights
Certificate shall exercise less than all the Rights
evidenced thereby, a new Rights Certificate evidencing
Rights equivalent to the Rights remaining unexercised shall
be issued by the Rights Agent and delivered to, or upon the
order of, the registered holder of such Rights Certificate,
registered in such name or names as may be designated by
such holder, subject to the provisions of Section 14 hereof.
(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 Associate or Affiliate of an
Acquiring Person, (ii) a transferee of an Acquiring Person
(or of any such Associate or Affiliate) who becomes a
transferee after the Acquiring Person becomes such, or (iii)
a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person becoming such and
receives such Rights pursuant to either (A) a transfer
(whether or not for consideration) from the Acquiring Person
to holders of equity interests in such Acquiring Person or
to any Person with whom the Acquiring Person has any
continuing agreement, arrangement or understanding regarding
the transferred Rights or (B) a transfer which the Board of
Directors of the Company has determined is part of a plan,
arrangement or understanding that has as a primary purpose
or effect the avoidance of this Section 7(e), shall become
null and void without any further action and no holder of
such Rights shall have any rights whatsoever with respect to
such Rights, whether under any provision of this Agreement
or otherwise. The Company shall use all reasonable efforts
to insure that the provisions of this Section 7(e) and
Section 4(b) hereof are complied with, but shall have no
liability to any holder of Rights Certificates or other
Person as a result of its failure to make any determinations
with respect to an Acquiring Person or its Affiliates,
Associates or transferees hereunder.
(f) Notwithstanding anything in this Agreement to
the contrary, neither the Rights Agent nor the Company shall
be obligated to undertake any action with respect to a
registered holder upon the occurrence of any purported
transfer or exercise as set forth in this Section 7 unless
such registered holder shall have (i) completed and signed
the certificate following the form of assignment or election
to purchase set forth on the reverse side of the Rights
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 shall
reasonably request.
Section 8. Cancellation and Destruction of Rights
Certificates. All Rights Certificates surrendered for the
purpose of exercise, transfer, split up, combination or
exchange shall, if surrendered to the Company or any of its
agents, be delivered to the Rights Agent for cancellation or
in cancelled form, or, if surrendered to the Rights Agent,
shall be cancelled by it, and no Rights Certificates shall
be issued in lieu thereof except as expressly permitted by
any of the provisions of this Agreement. The Company shall
deliver to the Rights Agent for cancellation and retirement,
and the Rights Agent shall so cancel and retire, any other
Rights Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights Agent
shall deliver all cancelled Rights Certificates to the
Company, or shall, at the written request of the Company,
destroy such cancelled Rights Certificates, and in such case
shall deliver a certificate of destruction thereof to the
Company.
Section 9. Reservation and Availability of Capital
Stock.
(a) The Company covenants and agrees that it will
cause to be reserved and kept available out of its
authorized and unissued shares of Preferred Stock (and,
following the occurrence of a Triggering Event, out of its
authorized and unissued shares of Common Stock and/or other
securities or out of its authorized and issued shares held
in its treasury), the number of shares of Preferred Stock
(and, following the occurrence of a Triggering Event, Common
Stock and/or other securities) that, as provided in this
Agreement including Section 11(a)(iii) hereof, will be
sufficient to permit the exercise in full of all outstanding
Rights.
(b) So long as the shares of Preferred Stock
(and, following the occurrence of a Triggering Event, Common
Stock and/or other securities) issuable and deliverable upon
the exercise of the Rights are eligible for listing on any
national securities exchange, the Company shall use its best
efforts to cause, from and after such time as the Rights
become exercisable, all shares reserved for such issuance to
be listed on such exchange upon official notice of issuance
upon such exercise.
(c) The Company shall use its best efforts to (i)
file, as soon as practicable following the earliest date
after the first occurrence of a Section 11(a)(ii) Event on
which the consideration to be delivered by the Company upon
exercise of the Rights has been determined in accordance
with Section 11(a)(iii) hereof, or as soon as is required by
law following the Distribution Date, as the case may be, a
registration statement under the 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 temporarily suspend, for a
period of time not to exceed ninety (90) days after the date
set forth in clause (i) of the first sentence of this
Section 9(c), the exercisability of the Rights in order to
prepare and file such registration statement and permit it
to become effective. Upon any such suspension, the Company
shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended,
as well as a public announcement at such time as the
suspension is no longer in effect. Notwithstanding any
provision of this Agreement to the contrary, the Rights
shall not be exercisable in any jurisdiction unless the
requisite registration or qualification in such jurisdiction
shall have been effected or obtained.
(d) The Company covenants and agrees that it will
take all such action as may be necessary to ensure that all
one one-thousandths of a share of Preferred Stock (and,
following the occurrence of a Triggering Event, Common Stock
and/or other securities) delivered upon exercise of Rights
shall, at the time of delivery of the certificates for such
shares (subject to payment of the Purchase Price), be duly
and validly authorized and issued and fully paid and
nonassessable.
(e) The Company further covenants and agrees that
it will pay when due and payable any and all federal and
state transfer taxes and charges that may be payable in
respect of the issuance or delivery of the Rights
Certificates and of any certificates for a number of one
one-thousandths of a share of Preferred Stock (or Common
Stock and/or other securities, as the case may be) upon the
exercise of Rights. The Company shall not, however, be
required (i) to pay any transfer tax that may be payable in
respect of any transfer or delivery of Rights Certificates
to a Person other than, or the issuance or delivery of a
number of one one-thousandths of a share of Preferred Stock
(or Common Stock and/or other securities, as the case may
be) in respect of a name other than that of, the registered
holder of the Rights Certificate evidencing Rights
surrendered for exercise or (ii) to issue or deliver any
certificates for a number of one one-thousandths of a share
of Preferred Stock (or Common Stock and/or other securities,
as the case may be) in a name other than that of the
registered holder upon the exercise of any Rights until such
tax shall have been paid (any such tax being payable by the
holder of such Rights Certificate at the time of surrender)
or until it has been established to the Company's
satisfaction that no such tax is due.
Section 10. Preferred Stock Record Date. Each Person
in whose name any certificate for a number of one one-
thousandths of a share of Preferred Stock (or Common Stock
and/or other securities, as the case may be) is issued upon
the exercise of Rights shall for all purposes be deemed to
have become the holder of record of such shares of Preferred
Stock (or Common Stock and/or other securities, as the case
may be) represented thereby on, and such certificate shall
be dated, the date upon which the Rights Certificate
evidencing such Rights was duly surrendered and payment of
the Purchase Price (and all applicable transfer taxes) was
made; provided, however, that if the date of such surrender
and payment is a date upon which the Preferred Stock (or
Common Stock and/or other securities, as the case may be)
transfer books of the Company are closed, such Person shall
be deemed to have become the record holder of such shares
(fractional or otherwise) on, and such certificate shall be
dated, the next succeeding Business Day on which the
Preferred Stock (or Common Stock and/or other securities, as
the case may be) transfer books of the Company are open.
Prior to the exercise of the Rights evidenced thereby, the
holder of a Rights Certificate, as such, shall not be
entitled to any rights of a stockholder of the Company with
respect to securities for which the Rights shall be
exercisable, including, without limitation, the right to
vote, to receive dividends or other distributions or to
exercise any preemptive rights, and shall not be entitled to
receive any notice of any proceedings of the Company, except
as provided herein.
Section 11. Adjustment of Purchase Price, Number and
Kind of Shares or Number of Rights. The Purchase Price, the
number and kind of shares covered by each Right and the
number of Rights outstanding are subject to adjustment from
time to time as provided in this Section 11.
(a)(i) In the event the Company shall at any time
after the date of this Agreement (A) declare a dividend
on the Preferred Stock payable in shares of Preferred
Stock, (B) subdivide the outstanding Preferred Stock,
(C) combine the outstanding Preferred Stock into a
smaller number of shares, or (D) issue any shares of
its capital stock in a reclassification of the
Preferred Stock (including any such reclassification in
connection with a consolidation or merger in which the
Company is the continuing or surviving corporation),
except as otherwise provided in this Section 11(a) and
Section 7(e) hereof, the Purchase Price in effect at
the time of the record date for such dividend or of the
effective date of such subdivision, combination or
reclassification, and the number and kind of shares of
Preferred Stock or capital stock, as the case may be,
issuable on such date, shall be proportionately
adjusted so that the holder of any Right exercised
after such time shall be entitled to receive, upon
payment of the Purchase Price then in effect, the
aggregate number and kind of shares of Preferred Stock
or capital stock, as the case may be, which, if such
Right had been exercised immediately prior to such date
and at a time when the Preferred Stock transfer books
of the Company were open, he would have owned upon such
exercise and been entitled to receive by virtue of such
dividend, subdivision, combination or reclassification.
If an event occurs that would require an adjustment
under both this Section 11(a)(i) and Section 11(a)(ii)
hereof, the adjustment provided for in this Section
11(a)(i) shall be in addition to, and shall be made
prior to, any adjustment required pursuant to Section
11(a)(ii) hereof.
(a)(ii) In the event that at any time after the
Record Date any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of
the Company or of any Subsidiary of the Company, or any
Person organized, appointed or established by the
Company for or pursuant to the terms of any such plan)
shall become an Acquiring Person, then, promptly
following the first occurrence of such event, proper
provision shall be made so that each holder of a Right
(except as provided below and in Section 7(e) hereof)
shall thereafter have the right to receive, upon
exercise thereof at the then current Purchase Price in
accordance with the terms of this Agreement, in lieu of
a number of one one-thousandths of a share of Preferred
Stock, such number of shares of Common Stock of the
Company that equals the result obtained by (x)
multiplying the then current Purchase Price by the then
number of one one-thousandths of a share of Preferred
Stock for which a Right was exercisable immediately
prior to the first occurrence of a Section 11(a)(ii)
Event, and (y) dividing that product (such product,
following such first occurrence, shall thereafter be
referred to as the "Purchase Price" for each Right and
for all purposes of this Agreement) by 50% of the
current market price (determined pursuant to Section
11(d) hereof) per share of Common Stock on the date of
such first occurrence (such number of shares, the
"Adjustment Shares"). Notwithstanding the foregoing
provisions of this Section 11(a)(ii), the adjustment to
the terms of the Rights provided for in the preceding
sentence shall not be triggered by, and the term
"Section 11(a)(ii) Event" shall not be deemed to
include, an acquisition of Common Stock that is either
(A) a transaction set forth in Section 13(a) hereof, or
(B) an acquisition of shares of Common Stock pursuant
to a tender offer or an exchange offer for all
outstanding shares of Common Stock at a price and on
terms determined, prior to the consummation of such
acquisition, by at least a majority of the members of
the Board of Directors who are not officers of the
Company and who are not representatives, nominees,
Affiliates or Associates of an Acquiring Person, after
receiving advice from a nationally recognized
investment banking firm selected by the Board of
Directors of the Company, to be (a) at a price that 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 sold on an orderly basis designed to realize
maximum value) and (b) otherwise in the best interests
of the Company and its stockholders (such tender offer
or exchange offer being referred to as a "Permitted
Offer").
(iii) In the event that the number of shares
of Common Stock that are authorized by the Company's
Articles of Organization but not outstanding or
reserved for issuance for purposes other than upon
exercise of the Rights are not sufficient to permit the
exercise in full of the Rights in accordance with the
foregoing subparagraph (ii) of this Section 11(a), the
Company shall: (A) determine the excess of (1) the
value of the Adjustment Shares issuable upon the
exercise of a Right (the "Current Value") over (2) the
Purchase Price (such excess, the "Spread"), and (B)
with respect to each Right, 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 of preferred stock, "common
stock equivalents")), (4) debt securities of the
Company, (5) other assets, or (6) any combination of
the foregoing, having an aggregate value equal to the
Current Value, where such aggregate value has been
determined by the Board of Directors of the Company
based upon the advice of a nationally recognized
investment banking firm selected by the Board of
Directors of the Company; provided, however, if the
Company shall not have made adequate provision to
deliver value pursuant to clause (B) above within
thirty (30) days following the later of (x) the first
occurrence of a Section 11(a)(ii) Event and (y) the
date on which the Company's right of redemption
pursuant to Section 23(a) expires (the later of (x) and
(y) being referred to herein as the "Section 11(a)(ii)
Trigger Date"), then the Company shall be obligated to
deliver, upon the surrender for exercise of a Right and
without requiring payment of the Purchase Price, shares
of Common Stock (to the extent available) and then, if
necessary, cash, which shares and/or cash have an
aggregate value equal to the Spread. If the Board of
Directors of the Company shall determine in good faith
that it is likely that sufficient additional shares of
Common Stock could be authorized for issuance upon
exercise in full of the Rights, the thirty (30) day
period set forth above may be extended to the extent
necessary, but not more than ninety (90) days after the
Section 11(a)(ii) Trigger Date, in order that the
Company may seek shareholder approval for the
authorization of such additional shares (such period,
as it may be extended, the "Substitution Period"). To
the extent that the Company determines that some action
need be taken pursuant to the first and/or second
sentences of this Section 11(a)(iii), the Company (x)
shall provide, subject to Section 7(e) hereof, that
such action shall apply uniformly to all outstanding
Rights, and (y) may suspend the exercisability of the
Rights until the expiration of the Substitution Period
in order to seek any authorization of additional shares
and/or to decide the appropriate form of distribution
to be made pursuant to such first sentence and to
determine the value thereof. In the event of any such
suspension, the Company shall issue a public
announcement stating that the exercisability of the
Rights has been temporarily suspended, as well as a
public announcement at such time as the suspension is
no longer in effect. For purposes of this Section
11(a)(iii), the value of the Common Stock shall be the
current market price (as determined pursuant to Section
11(d) hereof) per share of the Common Stock on the
Section 11(a)(ii) Trigger Date and the value of any
"common stock equivalent" shall be deemed to have the
same value as the Common Stock on such date.
(b) In case the Company shall fix a record date
for the issuance of rights (other than the Rights), options
or warrants to all holders of Preferred Stock entitling them
to subscribe for or purchase (for a period expiring within
forty-five (45) calendar days after such record date)
Preferred Stock (or shares having the same rights,
privileges and preferences as the shares of Preferred Stock
("equivalent preferred stock")) or securities convertible
into Preferred Stock or equivalent preferred stock at a
price per share of Preferred Stock or per share of
equivalent preferred stock (or having a conversion price per
share, if a security convertible into Preferred Stock or
equivalent preferred stock) less than the current market
price (as determined pursuant to Section 11(d) hereof) per
share of Preferred Stock on such record date, the Purchase
Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the
numerator of which shall be the number of shares of
Preferred Stock outstanding on such record date, plus the
number of shares of Preferred Stock which the aggregate
offering price of the total number of shares of Preferred
Stock and/or equivalent preferred stock so to be offered
(and/or the aggregate initial conversion price of the
convertible securities so to be offered) would purchase at
such current market price, and the denominator of which
shall be the number of shares of Preferred Stock outstanding
on such record date, plus the number of additional shares of
Preferred Stock and/or equivalent preferred stock to be
offered for subscription or purchase (or into which the
convertible securities so to be offered are initially
convertible). In case such subscription price may be paid
by delivery of consideration part or all of which may be in
a form other than cash, the value of such consideration
shall be as determined in good faith by the Board of
Directors of the Company, whose determination shall be
described in a statement filed with the Rights Agent and
shall be conclusive for all purposes. Shares of Preferred
Stock owned by or held for the account of the Company shall
not be deemed outstanding for the purpose of any such
computation. Such adjustment shall be made successively
whenever such a record date is fixed, and in the event that
such rights, 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 a distribution to all holders of Preferred Stock
(including any such distribution made in connection with a
consolidation or merger in which the Company is the
continuing corporation) of evidences of indebtedness, cash
(other than a regular quarterly cash dividend out of the
earnings or retained earnings of the Company), assets (other
than a dividend payable in Preferred Stock, but including
any dividend payable in stock other than Preferred Stock) or
subscription rights or warrants (excluding those referred to
in Section 11(b) hereof), the Purchase Price to be in effect
after such record date shall be determined by multiplying
the Purchase Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be
the current market price (as determined pursuant to Section
11(d) hereof) per share of Preferred Stock on such record
date, less the fair market value (as determined in good
faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with
the Rights Agent and shall be conclusive for all purposes)
of the portion of the cash, assets or evidences of
indebtedness so to be distributed or of such subscription
rights or warrants applicable to a share of Preferred Stock
and the denominator of which shall be such current market
price (as determined pursuant to Section 11(d) hereof) per
share of Preferred Stock on such record date. Such
adjustments shall be made successively whenever such a
record date is fixed, and in the event that such
distribution is not so made, the Purchase Price shall be
adjusted to be the Purchase Price which would have been in
effect if such record date had not been fixed.
(d)(i) For the purpose of any computation
hereunder, other than computations made pursuant to
Section 11(a)(iii) hereof, the "current market price"
per share of Common Stock on any date shall be deemed
to be the average of the daily closing prices per share
of such Common Stock for the thirty (30) consecutive
Trading Days (as such term is hereinafter defined)
immediately prior to such date, and for purposes of
computations made pursuant to Section 11(a)(iii)
hereof, the "current market price" per share of Common
Stock on any date shall be deemed to be the average of
the daily closing prices per share of such Common Stock
for the ten (10) consecutive Trading Days immediately
following such date; provided, however, that in the
event that the current market price per share of the
Common Stock is determined during a period following
the announcement by the issuer of such Common Stock of
(A) a dividend or distribution on such Common Stock
payable in shares of such Common Stock or securities
convertible into shares of such Common Stock (other
than the Rights), or (B) any subdivision, combination
or reclassification of such Common Stock, and the ex-
dividend date for such dividend or distribution, or the
record date for such subdivision, combination or
reclassification shall not have occurred prior to the
expiration of the requisite thirty (30) Trading Day or
ten (10) Trading Day period, as set forth above, then,
and in each such case, the "current market price" shall
be properly adjusted to take into account ex-dividend
trading. The closing price for each day shall be the
last sale price, regular way, or, in case no such sale
takes place on such day, the average of the closing bid
and asked prices, regular way, in either case as
reported in the principal consolidated transaction
reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange or,
if the shares of Common Stock are not listed or
admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction
reporting system with respect to securities listed on
the principal national securities exchange on which the
shares of Common Stock are listed or admitted to
trading or, if the shares of Common Stock are not
listed or admitted to trading on any national
securities exchange, the last quoted price or, if not
so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by
the Nasdaq Stock Market ("Nasdaq") or such other
system then in use, or, if on any such date the shares
of Common Stock are not quoted by any such
organization, the average of the closing bid and asked
prices as furnished by a professional market maker
making a market in the Common Stock selected by the
Board of Directors of the Company. If on any such date
no market maker is making a market in the Common Stock,
the fair value of such shares on such date as
determined in good faith by the Board of Directors of
the Company shall be used. The term "Trading Day"
shall mean a day on which the principal national
securities exchange on which the shares of Common Stock
are listed or admitted to trading is open for the
transaction of business or, if the shares of Common
Stock are not listed or admitted to trading on any
national securities exchange, a Business Day. If the
Common Stock is not publicly held or not so listed or
traded, "current market price" per share shall mean the
fair value per share as determined in good faith by the
Board of Directors of the Company, whose determination
shall be described in a statement filed with the Rights
Agent and shall be conclusive for all purposes.
(ii) For the purpose of any computation
hereunder, the "current market price" per share of
Preferred Stock shall be determined in the same manner
as set forth above for the Common Stock in clause (i)
of this Section 11(d) (other than the last sentence
thereof). If the current market price per share of
Preferred Stock cannot be determined in the manner
provided above or if the Preferred Stock is not
publicly held or listed or traded in a manner described
in clause (i) of this Section 11(d), the "current
market price" per share of Preferred Stock shall be
conclusively deemed to be an amount equal to 1,000 (as
such number may be appropriately adjusted for such
events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock
occurring after the date of this Agreement) multiplied
by the current market price per share of the Common
Stock. If neither the Common Stock nor the Preferred
Stock is publicly held or so listed or traded, "current
market price" per share of the Preferred Stock shall
mean the fair value per share as determined in good
faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed
with the Rights Agent and shall be conclusive for all
purposes. For all purposes of this Agreement, the
"current market price" of one one-thousandth of a share
of Preferred Stock shall be equal to the "current
market price" of one share of Preferred Stock divided
by 1,000.
(e) Anything herein to the contrary
notwithstanding, no adjustment in the Purchase Price shall
be required unless such adjustment would require an increase
or decrease of at least one percent (1%) in the Purchase
Price; provided, however, that any adjustments which by
reason of this Section 11(e) are not required to be made
shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section
11 shall be made to the nearest cent or to the nearest
hundred-millionth of a share of Preferred Stock, or hundred-
thousandth of a share of Common Stock or other share, as the
case may be. Notwithstanding the first sentence of this
Section 11(e), any adjustment required by this Section 11
shall be made no later than the earlier of (i) three (3)
years from the date of the transaction which mandates such
adjustment, or (ii) the Expiration Date.
(f) If as a result of an adjustment made pursuant
to Section 11(a)(ii) or Section 13(a) hereof, the holder of
any Right thereafter exercised shall become entitled to
receive any shares of capital stock other than Preferred
Stock, thereafter the number of such other shares so
receivable upon exercise of any Right and the Purchase Price
thereof shall be subject to adjustment from time to time in
a manner and on terms as nearly equivalent as practicable to
the provisions with respect to the Preferred Stock contained
in Sections 11(a), (b), (c), (e), (g), (h), (i), (j), (k)
and (m), and the provisions of Sections 7, 9, 10, 13 and 14
hereof with respect to the Preferred Stock shall apply on
like terms to any such other shares.
(g) All Rights originally issued by the Company
subsequent to any adjustment made to the Purchase Price
hereunder shall evidence the right to purchase, at the
adjusted Purchase Price, the number of one one-thousandths
of a share of Preferred Stock purchasable from time to time
hereunder upon exercise of the Rights, all subject to
further adjustment as provided herein.
(h) Unless the Company shall have exercised its
election as provided in Section 11(i), upon each adjustment
of the Purchase Price as a result of the calculations made
in Sections 11(b) and (c), each Right outstanding
immediately prior to the making of such adjustment shall
thereafter evidence the right to purchase, at the adjusted
Purchase Price, that number of one one-thousandths of a
share of Preferred Stock (calculated to the nearest ten-
millionth) obtained by (i) multiplying (x) the number of one
one-thousandths of a share covered by a Right immediately
prior to this adjustment, by (y) the Purchase Price in
effect immediately prior to such adjustment of the Purchase
Price, and (ii) dividing the product so obtained by the
Purchase Price in effect immediately after such adjustment
of the Purchase Price.
(i) The Company may elect on or after the date of
any adjustment of the Purchase Price to adjust the number of
Rights, in lieu of any adjustment in the number of one one-
thousandths of a share of Preferred Stock purchasable upon
the exercise of a Right. Each of the Rights outstanding
after the adjustment in the number of Rights shall be
exercisable for the number of one one-thousandths of a share
of Preferred Stock for which a Right was exercisable
immediately prior to such adjustment. Each Right held of
record prior to such adjustment of the number of Rights
shall become that number of Rights (calculated to the
nearest one one-hundred-thousandth) obtained by dividing the
Purchase Price in effect immediately prior to adjustment of
the Purchase Price by the Purchase Price in effect
immediately after adjustment of the Purchase Price. The
Company shall make a public announcement of its election to
adjust the number of Rights, indicating the record date for
the adjustment, and, if known at the time, the amount of the
adjustment to be made. This record date may be the date on
which the Purchase Price is adjusted or any day thereafter,
but, if the Rights Certificates have been issued, shall be
at least ten (10) days later than the date of the public
announcement. If Rights Certificates have been issued, upon
each adjustment of the number of Rights pursuant to this
Section 11(i), the Company shall, as promptly as
practicable, cause to be distributed to holders of record of
Rights Certificates on such record date Rights Certificates
evidencing, subject to Section 14 hereof, the additional
Rights to which such holders shall be entitled as a result
of such adjustment, or, at the option of the Company, shall
cause to be distributed to such holders of record in
substitution and replacement for the Rights Certificates
held by such holders prior to the date of adjustment, and
upon surrender thereof, if required by the Company, new
Rights Certificates evidencing all the Rights to which such
holders shall be entitled after such adjustment. Rights
Certificates so to be distributed shall be issued, executed
and countersigned in the manner provided for herein (and may
bear, at the option of the Company, the adjusted Purchase
Price) and shall be registered in the names of the holders
of record of Rights Certificates on the record date
specified in the public announcement.
(j) Irrespective of any adjustment or change in
the Purchase Price or the number of one one-thousandths of a
share of Preferred Stock issuable upon the exercise of the
Rights, the Rights Certificates theretofore and thereafter
issued may continue to express the Purchase Price per one
one-thousandth of a share and the number of one one-
thousandths of a share which were expressed in the initial
Rights Certificates issued hereunder.
(k) Before taking any action that would cause an
adjustment reducing the Purchase Price below the then stated
value, if any, of the number of one one-thousandths 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 such number
of one one-thousandths of a share of fully paid and
nonassessable Preferred Stock at such adjusted Purchase
Price.
(l) In any case in which this Section 11 shall
require that an adjustment in the Purchase Price be made
effective as of a record date for a specified event, the
Company may elect to defer until the occurrence of such
event the issuance to the holder of any Right exercised
after such record date the number of one one-thousandths of
a share of Preferred Stock and other capital stock or
securities of the Company, if any, issuable upon such
exercise over and above the number of one one-thousandths of
a share of Preferred Stock and other capital stock or
securities of the Company, if any, issuable upon such
exercise on the basis of the Purchase Price in effect prior
to such adjustment; provided, however, that the Company
shall deliver to such holder a due bill or other appropriate
instrument evidencing such holder's right to receive such
additional shares (fractional or otherwise) or securities
upon the occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to
the extent that in their good faith judgment the Board of
Directors of the Company shall determine to be advisable in
order that any (i) consolidation or subdivision of the
Preferred Stock, (ii) issuance wholly for cash of any shares
of Preferred Stock at less than the current market price,
(iii) issuance wholly for cash of shares of Preferred Stock
or securities which by their terms are convertible into or
exchangeable for shares of Preferred Stock, (iv) stock
dividends or (v) issuance of rights, options or warrants
referred to in this Section 11, hereafter made by the
Company to holders of its Preferred Stock shall not be
taxable to such stockholders.
(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 a series of related transactions, assets
or earning power aggregating more than 50% of the assets or
earning power of the Company and its Subsidiaries (taken as
a whole) to any other Person or Persons (other than the
Company and/or any of its Subsidiaries in one or more
transactions each of which complies with Section 11(o)
hereof), if (x) at the time of or immediately after such
consolidation, merger or sale there are any rights, warrants
or other instruments or securities outstanding or agreements
in effect that would substantially diminish or otherwise
eliminate the benefits intended to be afforded by the Rights
or (y) prior to, simultaneously with or immediately after
such consolidation, merger or sale, the shareholders of the
Person who constitutes, or would constitute, the "Principal
Party" for purposes of Section 13(a) hereof shall have
received a distribution of Rights previously owned by such
Person or any of its Affiliates and Associates. The Company
shall not consummate any such consolidation merger, sale or
transfer unless prior thereto the Company and such other
Person shall have executed and delivered to the Rights Agent
a supplemental agreement evidencing compliance with this
Section 11(n).
(o) The Company covenants and agrees that, after
the Distribution Date, it will not, except as permitted by
Section 23, Section 24 or Section 27 hereof, take (or permit
any Subsidiary to take) any action if at the time such
action is taken it is reasonably foreseeable that such
action will diminish substantially or otherwise eliminate
the benefits intended to be afforded by the Rights.
(p) Anything in this Agreement to the contrary
notwithstanding, in the event that the Company shall at any
time after the Record Date and prior to the Distribution
Date (i) declare or pay any dividend on the outstanding
shares of Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding shares of Common Stock, or
(iii) combine the outstanding shares of Common Stock into a
smaller number of shares, the number of Rights associated
with each share of Common Stock then outstanding, or issued
or delivered thereafter but prior to the Distribution Date,
shall be proportionately adjusted so that the number of
Rights thereafter associated with each share of Common Stock
following any such event shall equal the result obtained by
multiplying the number of Rights associated with each share
of Common Stock immediately prior to such event by a
fraction, the numerator of which shall be the number of
shares of Common Stock outstanding immediately prior to the
occurrence of such event and the denominator of which shall
be the number of shares of Common Stock outstanding
immediately following the occurrence of such event.
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares. Whenever an adjustment is made as
provided in Section 11 or Section 13 hereof, the Company
shall (a) promptly prepare a certificate setting forth such
adjustment and a brief statement of the facts accounting for
such adjustment, (b) promptly file with the Rights Agent,
and with each transfer agent for the Preferred Stock and the
Common Stock, a copy of such certificate, and (c) mail a
brief summary thereof to each holder of a Rights Certificate
(or, if prior to the Distribution Date, to each holder of a
certificate representing shares of Common Stock) in
accordance with Section 26 hereof. The Rights Agent shall
be fully protected in relying on any such certificate and on
any adjustment therein contained and shall not be deemed to
have knowledge of any adjustment unless and until it shall
have received such certificate.
Section 13. Consolidation, Merger or Sale or Transfer
of Assets or Earning Power.
(a) In the event that, on or following the Stock
Acquisition Date, directly or indirectly, (x) the Company
shall consolidate with, or merge with and into, any other
Person (other than a Subsidiary of the Company in a
transaction that complies with Section 11(o) hereof), and
the Company shall not be the continuing or surviving
corporation of such consolidation or merger, (y) any Person
(other than a Subsidiary of the Company in a transaction
that complies with Section 11(o) hereof) shall consolidate
with, or merge with or into, the Company, and the Company
shall be the continuing or surviving corporation of such
consolidation or merger and, in connection with such
consolidation or merger, all or part of the outstanding
shares of Common Stock shall be changed into or exchanged
for stock or other securities of any other Person or cash or
any other property, or (z) the Company shall sell or
otherwise transfer (or one or more of its Subsidiaries shall
sell or otherwise transfer), in one transaction or a series
of related transactions, assets or earning power aggregating
more than 50% of the assets or earning power of the Company
and its Subsidiaries (taken as a whole) to any Person or
Persons (other than the Company or any Subsidiary of the
Company in one or more transactions each of which complies
with Section 11(o) hereof), then, and in each such case and
except as contemplated by Section 13(d) hereof, proper
provision shall be made so that: (i) each holder of a Right,
except as provided in Section 7(e) hereof, shall thereafter
have the right to receive, upon the exercise thereof at the
then current Purchase Price in accordance with the terms of
this Agreement, such number of validly authorized and
issued, fully paid, non-assessable and freely tradeable
shares of Common Stock of the Principal Party (as such term
is hereinafter defined), not subject to any liens,
encumbrances, rights of first refusal or other adverse
claims, as shall be equal to the result obtained by (1)
multiplying the then current Purchase Price by the number of
one one-thousandths of a share of Preferred Stock for which
a Right is exercisable immediately prior to the first
occurrence of a Section 13 Event (or, if a Section 11(a)(ii)
Event has occurred prior to the first occurrence of a
Section 13 Event, multiplying the number of such one one-
thousandths of a share for which a Right was exercisable
immediately prior to the first occurrence of a Section
11(a)(ii) Event by the Purchase Price in effect immediately
prior to such first occurrence), and dividing that product
(such product, following the first occurrence of a Section
13 Event, shall be referred to as the "Purchase Price" for
each Right and for all purposes of this Agreement) by (2)
50% of the current market price (determined pursuant to
Section 11(d)(i) hereof) per share of the Common Stock of
such Principal Party on the date of consummation of such
Section 13 Event; (ii) such Principal Party shall thereafter
be liable for, and shall assume, by virtue of such Section
13 Event, all the obligations and duties of the Company
pursuant to this Agreement; (iii) the term "Company" shall
thereafter be deemed to refer to such Principal Party, it
being specifically intended that the provisions of Section
11 hereof shall apply only to such Principal Party following
the first occurrence of a Section 13 Event; (iv) such
Principal Party shall take such steps (including, but not
limited to, the reservation of a sufficient number of shares
of its Common Stock) in connection with the consummation of
any such transaction as may be necessary to assure that the
provisions hereof shall thereafter be applicable, as nearly
as reasonably may be, in relation to its shares of Common
Stock thereafter deliverable upon the exercise of the
Rights; and (v) the provisions of Section 11(a)(ii) hereof
shall be of no effect following the first occurrence of any
Section 13 Event.
(b) "Principal Party" shall mean
(i) in the case of any transaction
described in clause (x) or (y) of the first sentence of
Section 13(a), the Person that is the issuer of any
securities into which shares of Common Stock of the
Company are converted in such merger or consolidation,
and if no securities are so issued, the Person that is
the other party to such merger or consolidation; and
(ii) in the case of any transaction
described in clause (z) of the first sentence of
Section 13(a), the Person that is the party receiving
the greatest portion of the assets or earning power
transferred pursuant to such transaction or
transactions;
provided, however, that in any such case, (1) if the Common
Stock of such Person is not at such time and has not been
continuously over the preceding twelve (12) month period
registered under Section 12 of the Exchange Act, and such
Person is a direct or indirect Subsidiary of another Person
the Common Stock of which is and has been so registered,
"Principal Party" shall refer to such other Person; (2) in
case such Person is a Subsidiary, directly or indirectly, of
more than one Person, the Common Stocks of two or more of
which are and have been so registered, "Principal Party"
shall refer to whichever of such Persons is the issuer of
the Common Stock having the greatest aggregate market value;
and (3) in case such Person is owned, directly or
indirectly, by a joint venture formed by two or more Persons
that are not owned, directly or indirectly, by the same
Person, the rules set forth in (1) and (2) above shall apply
to each of such Persons having an ownership interest in
such joint venture and the Principal Parties in each such
case shall bear the obligations set forth in this Section 13
in the same ratio as their direct or indirect interests in
such Person bear to the total of such interests.
(c) The Company shall not consummate any such
consolidation, merger, sale or transfer unless the Principal
Party shall have a sufficient number of authorized shares of
its Common Stock which have not been issued or reserved for
issuance to permit the exercise in full of the Rights in
accordance with this Section 13 and unless prior thereto the
Company and such Principal Party shall have executed and
delivered to the Rights Agent a supplemental agreement
providing for the terms set forth in paragraphs (a) and (b)
of this Section 13 and further providing that, as soon as
practicable after the date of any consolidation, merger or
sale of assets mentioned in paragraph (a) of this Section
13, the Principal Party will
(i) prepare and file a registration
statement under the Act, with respect to the Rights and
the securities purchasable upon exercise of the Rights
on an appropriate form, and will use its best efforts
to cause such registration statement (A) to become
effective as soon as practicable after such filing and
(B) to remain effective (with a prospectus at all times
meeting the requirements of the Act) until the
Expiration Date;
(ii) use its best efforts to qualify or
register the Rights and the securities purchasable upon
exercise of the Rights under the blue sky laws of such
jurisdictions as may be necessary or appropriate; and
(iii) deliver to holders of the Rights
historical financial statements for the Principal Party
and each of its Affiliates that comply in all respects
with the requirements for registration on Form 10 under
the Exchange Act.
The provisions of this Section 13 shall similarly apply to
successive mergers or consolidations or sales or other
transfers. In the event that a Section 13 Event shall occur
at any time after the occurrence of a Section 11(a)(ii)
Event, the Rights which have not theretofore been exercised
shall thereafter become exercisable in the manner described
in Section 13(a).
(d) Notwithstanding anything in this Agreement to
the contrary, Section 13 shall not be applicable to a
transaction described in subparagraphs (x) and (y) of
Section 13(a) if (i) such transaction is consummated with a
Person or Persons (or a wholly owned Subsidiary of any such
Person or Persons) who acquired shares of Common Stock
pursuant to a Permitted Offer, (ii) the price per share of
Common Stock paid in such transaction is not less than the
price per share of Common Stock paid to all holders of
shares of Common Stock whose shares were purchased pursuant
to such tender offer or exchange offer, and (iii) the form
of consideration paid in such transaction is the same as the
form of consideration paid pursuant to such tender offer or
exchange offer. Upon consummation of any such transaction
contemplated by this Section 13(d), all Rights hereunder
shall expire.
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue
fractions of Rights, except prior to the Distribution Date
as provided in Section 11(i) or 11(p) hereof, or to
distribute Rights Certificates that evidence fractional
Rights. In lieu of such fractional Rights, there shall be
paid to the registered holders of the Rights Certificates
with regard to which such fractional Rights would otherwise
be issuable, an amount in cash equal to the same fraction of
the current market value of a whole Right. For purposes of
this Section 14(a), the current market value of a whole
Right shall be the closing price of the Rights for the
Trading Day immediately prior to the date on which such
fractional Rights would have been otherwise issuable. The
closing price of the Rights for any day shall be the last
sale price, regular way, or, in case no such sale takes
place on such day, the average of the closing bid and asked
prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with
respect to securities listed 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 such quoted price or, if not so quoted, the average of
the high bid and low asked prices in the over-the-counter
market, as reported by Nasdaq or such other system then in
use or, if on any such date the Rights are not quoted by any
such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a
market in the Rights selected by the Board of Directors of
the Company. If on any such date no such market maker is
making a market in the Rights the fair value of the Rights
on such date as determined in good faith by the Board of
Directors of the Company shall be used.
(b) The Company shall not be required to issue
fractions of shares of Preferred Stock (other than fractions
which are integral multiples of one one-thousandth of a
share of Preferred Stock) upon exercise of the Rights or to
distribute certificates that evidence fractional shares of
Preferred Stock (other than fractions which are integral
multiples of one one-thousandth of a share of Preferred
Stock). In lieu of fractional shares of Preferred Stock
(other than fractions which are integral multiples of one
one-thousandth of a share of Preferred Stock), the Company
shall pay to the registered holders of Rights Certificates
at the time such Rights are exercised as herein provided an
amount in cash equal to the same fraction of the current
market value of one one-thousandth of a share of Preferred
Stock. For purposes of this Section 14(b), the current
market value of one one-thousandth of a share of Preferred
Stock shall be one one-thousandth of the closing price of a
share of Preferred Stock (as determined pursuant to Section
11(d)(ii) hereof) for the Trading Day immediately prior to
the date of such exercise.
(c) Following the occurrence of a Triggering
Event, the Company shall not be required to issue fractions
of shares of Common Stock upon exercise of the Rights or to
distribute certificates which evidence fractional shares of
Common Stock. In lieu of fractional shares of Common Stock,
the Company shall pay to the registered holders of Rights
Certificates at the time such Rights are exercised as herein
provided an amount in cash equal to the same fraction of the
current market price of one (1) share of Common Stock (as
determined pursuant to Section 11(d)(i) hereof) for the
Trading Day immediately prior to the date of such exercise.
(d) The holder of a Right by the acceptance of
the Rights expressly waives his right to receive any
fractional Rights or any fractional shares upon exercise of
a Right, except as permitted by this Section 14.
Section 15. Rights of Action. All rights of action in
respect of this Agreement, except the rights of action
expressly given to the Rights Agent in Section 18 hereof,
are vested in the respective registered holders of the
Rights Certificates (and, prior to the Distribution Date,
the registered holders of the Common Stock); and any
registered holder of any Rights Certificate (or, prior to
the Distribution Date, of the Common Stock), without the
consent of the Rights Agent or of the holder of any other
Rights Certificate (or, prior to the Distribution Date, of
the Common Stock), may, in his own behalf and for his own
benefit, enforce, and may institute and maintain any suit,
action or proceeding against the Company to enforce, or
otherwise act in respect of, his right to exercise the
Rights evidenced by such Rights Certificate in the manner
provided in such Rights Certificate and in this Agreement.
Without limiting the foregoing or any remedies available to
the holders of Rights, it is specifically acknowledged that
the holders of Rights would not have an adequate remedy at
law for any breach of this Agreement and shall be entitled
to specific performance of the obligations hereunder and
injunctive relief against actual or threatened violations of
the obligations hereunder of any Person subject to this
Agreement.
Section 16. Agreement of Rights Holders. Every holder
of a Right by accepting the same consents and agrees with
the Company and the Rights Agent and with every other holder
of a Right that:
(a) prior to the Distribution Date, the Rights
will be transferable only in connection with the transfer of
Common Stock;
(b) after the Distribution Date, the Rights
Certificates are transferable only on the registry books of
the Rights Agent if surrendered at the office of the Rights
Agent designated for such purposes, duly endorsed or
accompanied by a proper instrument of transfer and with the
appropriate forms and certificates duly completed and fully
executed;
(c) subject to Section 6(a) and Section 7(f)
hereof, the Company and the Rights Agent may deem and treat
the person in whose name a Rights Certificate (or, prior to
the Distribution Date, the associated Common Stock
certificate) is registered as the absolute owner thereof and
of the Rights evidenced thereby (notwithstanding any
notations of ownership or writing on the Rights Certificates
or the associated Common Stock certificate made by anyone
other than the Company or the Rights Agent) for all purposes
whatsoever, and neither the Company nor the Rights Agent,
subject to the last sentence of Section 7(e) hereof, shall
be required to be affected by any notice to the contrary;
and
(d) notwithstanding anything in this Agreement to
the contrary, neither the Company nor the Rights Agent shall
have any liability to any holder of a Right or other Person
as a result of its inability to perform any of its
obligations under this Agreement by reason of any
preliminary or permanent injunction or other order, decree
or ruling issued by a court of competent jurisdiction or by
a governmental, regulatory or administrative agency or
commission, or any statute, rule, regulation or executive
order promulgated or enacted by any governmental authority,
prohibiting or otherwise restraining performance of such
obligation; provided, however, the Company must use its best
efforts to prevent the issuance of such order, decree or
ruling and to have any such order, decree or ruling lifted
or otherwise overturned as soon as possible.
Section 17. Rights Certificate Holder Not Deemed a
Stockholder. No holder, as such, of any Rights Certificate
shall be entitled to vote, receive dividends or be deemed
for any purpose the holder of the number of one one-
thousandths of a share of Preferred Stock or any other
securities of the Company which may at any time be issuable
on the exercise of the Rights represented thereby, nor shall
anything contained herein or in any Rights Certificate be
construed to confer upon the holder of any Rights
Certificate, as such, any of the rights of a 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 25 hereof), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by
such Rights Certificate shall have been exercised in
accordance with the provisions hereof.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the Rights Agent
reasonable compensation for all services rendered by it
hereunder and, from time to time, on demand of the Rights
Agent, its reasonable expenses and counsel fees and
disbursements and other disbursements incurred in the
administration and execution of this Agreement and the
exercise and performance of its duties hereunder. The
Company also agrees to indemnify the Rights Agent for, and
to hold it harmless against, any loss, liability or expense,
incurred without gross negligence, bad faith or willful
misconduct on the part of the Rights Agent, for anything
done or omitted by the Rights Agent in connection with the
acceptance and administration of this Agreement, including
the costs and expenses of defending against any claim of
liability in the premises.
(b) The Rights Agent shall be protected and shall
incur no liability for or in respect of any action taken,
suffered or omitted by it in connection with its
administration of this Agreement in reliance upon any Rights
Certificate or certificate for Common Stock or for other
securities of the Company, instrument of assignment or
transfer, power of attorney, endorsement, affidavit, letter,
notice, direction, consent, certificate, statement, or other
paper or document believed by it to be genuine and to be
signed, executed and, where necessary, verified or
acknowledged, by the proper Person or Persons, or otherwise
upon the advice of counsel as set forth in Section 20
hereof.
Section 19. Merger or Consolidation or Change of Name
of Rights Agent.
(a) Any corporation into which the Rights Agent
or any successor Rights Agent may be merged or with which it
may be consolidated, or any corporation resulting from any
merger or consolidation to which the Rights Agent or any
successor Rights Agent shall be a party, or any corporation
succeeding to the corporate trust or stock transfer business
of the Rights Agent or any successor Rights Agent, shall be
the successor to the Rights Agent under this Agreement
without the execution or filing of any paper or any further
act on the part of any of the parties hereto; provided,
however, that such corporation would be eligible for
appointment as a successor Rights Agent under the provisions
of Section 21 hereof. In case at the time such successor
Rights Agent shall succeed to the agency created by this
Agreement, any of the Rights Certificates shall have been
countersigned but not delivered, any such successor Rights
Agent may adopt the countersignature of a predecessor Rights
Agent and deliver such Rights Certificates so countersigned;
and in case at that time any of the Rights Certificates
shall not have been countersigned, any successor Rights
Agent may countersign such Rights Certificates either in the
name of the predecessor or in the name of the successor
Rights Agent; and in all such cases such Rights Certificates
shall have the full force provided in the Rights
Certificates and in this Agreement.
(b) In case at any time the name of the Rights
Agent shall be changed and at such time any of the Rights
Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the countersignature
under its prior name and deliver Rights Certificates so
countersigned; and in case at that time any of the Rights
Certificates shall not have been countersigned, the Rights
Agent may countersign such Rights Certificates either in its
prior name or in its changed name; and in all such cases
such Rights Certificates shall have the full force provided
in the Rights Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations imposed by this
Agreement upon the following terms and conditions, by all of
which the Company and the holders of Rights Certificates, by
their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal
counsel (who may be legal counsel for the Company), and the
opinion of such counsel shall be full and complete
authorization and protection to the Rights Agent as to any
action taken or omitted by it in good faith and in
accordance with such opinion.
(b) Whenever in the performance of its duties
under this Agreement the Rights Agent shall deem it
necessary or desirable that any fact or matter (including,
without limitation, the identity of any Acquiring Person and
the determination of "current market price") be proved or
established by the Company prior to taking or suffering any
action hereunder, such fact or matter (unless other evidence
in respect thereof be herein specifically prescribed) may be
deemed to be conclusively proved and established by a
certificate signed by the Chairman of the Board, the
President, any Vice President, the Treasurer, any Assistant
Treasurer, the Clerk or any Assistant Clerk of the Company
and delivered to the Rights Agent; and such certificate
shall be full authorization to the Rights Agent for any
action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such
certificate.
(c) The Rights Agent shall be liable hereunder
only for its own gross negligence, bad faith or willful
misconduct.
(d) The Rights Agent shall not be liable for or
by reason of any of the statements of fact or recitals
contained in this Agreement or in the Rights Certificates or
be required to verify the same (except as to its
countersignature on such Rights Certificates), but all such
statements and recitals are and shall be deemed to have been
made by the Company only.
(e) The Rights Agent shall not be under any
responsibility in respect of the validity of this Agreement
or the execution and delivery hereof (except the due
execution hereof by the Rights Agent) or in respect of the
validity or execution of any Rights Certificate (except its
countersignature thereof); nor shall it be responsible for
any breach by the Company of any covenant or condition
contained in this Agreement or in any Rights Certificate;
nor shall it be responsible for any adjustment required
under the provisions of Section 11, Section 13 or Section 24
hereof or responsible for the manner, method or amount of
any such adjustment or the ascertaining of the existence of
facts that would require any such adjustment (except with
respect to the exercise of Rights evidenced by Rights
Certificates after receipt of a certificate describing any
such adjustment, delivered pursuant to Section 12); nor
shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or
reservation of any shares of Common Stock or Preferred Stock
to be issued pursuant to this Agreement or any Rights
Certificate or as to whether any shares of Common Stock or
Preferred Stock will, when so issued, be validly authorized
and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform,
execute, acknowledge and deliver or cause to be performed,
executed, acknowledged and delivered all such further and
other acts, instruments and assurances as may reasonably be
required by the Rights Agent for the carrying out or
performing by the Rights Agent of the provisions of this
Agreement.
(g) The Rights Agent is hereby authorized and
directed to accept instructions with respect to the
performance of its duties hereunder from the Chairman of the
Board, the President, any Vice President, the Clerk, any
Assistant Clerk, the Treasurer or any Assistant Treasurer of
the Company, and to apply to such officers for advice or
instructions in connection with its duties, and it shall not
be liable for any action taken or suffered to be taken by
it in good faith in accordance with instructions of any such
officer. Any application by the Rights Agent for written
instructions from the Company may, at the option of the
Rights Agent, set forth in writing any action proposed to be
taken or omitted by the Rights Agent with respect to its
duties or obligations under this Rights Agreement and the
date on and/or after which such action shall be taken or
omitted and the Rights Agent shall not be liable for any
action taken or omitted in accordance with a proposal
included in any such application on or after the date
specified therein (which date shall not be less than five
Business Days after the date any such officer actually
receives such application, unless any such officer shall
have consented in writing to an earlier date) unless, prior
to taking or omitting any such action, the Rights Agent has
received written instructions in response to such
application specifying the action to be taken or omitted.
(h) The Rights Agent and any stockholder,
director, officer or employee of the Rights Agent may buy,
sell or deal in any of the Rights or other securities of the
Company or become pecuniarily interested in any transaction
in which the Company may be interested, or contract with or
lend money to the Company or otherwise act as fully and
freely as though it were not Rights Agent under this
Agreement. Nothing herein shall preclude the Rights Agent
from acting in any other capacity for the Company or for any
other legal entity.
(i) The Rights Agent may execute and exercise any
of the rights or powers hereby vested in it or perform any
duty hereunder either itself or by or through its attorneys
or agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of
any such attorneys or agents or for any loss to the Company
resulting from any such act, default, neglect or misconduct;
provided, however, reasonable care was exercised in the
selection and continued employment thereof.
(j) No provision of this Agreement shall require
the Rights Agent to expend or risk its own funds or
otherwise incur any financial liability in the performance
of any of its duties hereunder or in the exercise of its
rights if there shall be reasonable grounds for believing
that repayment of such funds or adequate indemnification
against such risk or liability is not reasonably assured to
it.
(k) If, with respect to any Rights 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 not been
completed, the Company and the Rights Agent will deem the
Beneficial Owner of the Rights evidenced by such Rights
Certificate to be an Acquiring Person or an Affiliate or
Associate thereof and such assignment or election to
purchase will not be honored.
Section 21. Change of Rights Agent. The Rights Agent
or any successor Rights Agent may resign and be discharged
from its duties under this Agreement upon thirty (30) days'
notice in writing mailed to the Company, and to each
transfer agent of the Common Stock and Preferred Stock, by
registered or certified mail, and to the holders of the
Rights Certificates by first-class mail. The Company may
remove the Rights Agent or any successor Rights Agent upon
thirty (30) days' notice in writing, mailed to the Rights
Agent or successor Rights Agent, as the case may be, and to
each transfer agent of the Common Stock and Preferred Stock,
by registered or certified mail, and to the holders of the
Rights Certificates by first-class mail. If the Rights
Agent shall resign or be removed or shall otherwise become
incapable of acting, the Company shall appoint a successor
to the Rights Agent. If the Company shall fail to make such
appointment within a period of thirty (30) days after giving
notice of such removal or after it has been notified in
writing of such resignation or incapacity by the resigning
or incapacitated Rights Agent or by the holder of a Rights
Certificate (who shall, with such notice, submit his Rights
Certificate for inspection by the Company), then any
registered holder of any Rights Certificate may apply to any
court of competent jurisdiction for the appointment of a new
Rights Agent. Any successor Rights Agent, whether appointed
by the Company or by such a court, shall be (a) a
corporation organized and doing business under the laws of
the United States (or of any state of the United States) in
good standing, which is authorized under such laws to
exercise corporate trust or stock transfer powers and is
subject to supervision or examination by federal or state
authority and which has at the time of its appointment as
Rights Agent a combined capital and surplus of at least
$50,000,000 or (b) an affiliate of a corporation described
in clause (a) of this sentence. After appointment, the
successor Rights Agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been
originally named as Rights Agent without further act or
deed; but the predecessor Rights Agent shall deliver and
transfer to the successor Rights Agent any property at the
time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the
purpose. Not later than the effective date of any such
appointment, the Company shall file notice thereof in
writing with the predecessor Rights Agent and each transfer
agent of the Common Stock and the Preferred Stock, and mail
a notice thereof in writing to the registered holders of the
Rights Certificates. Failure to give any notice provided
for in this Section 21, however, or any defect therein,
shall not affect the legality or validity of the resignation
or removal of the Rights Agent or the appointment of the
successor Rights Agent, as the case may be.
Section 22. Issuance of New Rights Certificates.
Notwithstanding any of the provisions of this Agreement or
of the Rights to the contrary, the Company may, at its
option, issue new Rights Certificates evidencing Rights in
such form as may be approved by its Board of Directors to
reflect any adjustment or change in the Purchase Price and
the number or kind or class of shares or other securities or
property purchasable under the Rights Certificates made in
accordance with the provisions of this Agreement.
Section 23. Redemption and Termination.
(a) The Board of Directors of the Company may, at
its option, at any time prior to the earlier of (i) the
close of business on the tenth day following the Stock
Acquisition Date (or, if the Stock Acquisition Date shall
have occurred prior to the Record Date, the close of
business on the tenth day following the Record Date), or
(ii) the Final Expiration Date, redeem all but not less than
all the then outstanding Rights at a redemption price of
$.01 per Right, as such amount may be appropriately adjusted
to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such redemption
price being hereinafter referred to as the "Redemption
Price") and the Company may, at its option, pay the
Redemption Price either in shares of Common Stock (based on
the "current market price", as defined in Section 11(d)(i)
hereof, of the shares of Common Stock at the time of
redemption) or cash. 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) Immediately upon the action of the Board of
Directors of the Company ordering the redemption of the
Rights, evidence of which shall have been filed with the
Rights Agent, and without any further action and without any
notice, the right to exercise the Rights shall terminate and
the only right thereafter of the holders of Rights shall be
to receive the Redemption Price for each Right so held.
Promptly after the action of the Board of Directors ordering
the redemption of the Rights, the Company shall give notice
of such redemption to the Rights Agent and the holders of
the then outstanding Rights by mailing such notice to all
such holders at each holder's last address as it appears
upon the registry books of the Rights Agent or, prior to the
Distribution Date, on the registry books of the Transfer
Agent for the Common Stock. Any notice which is mailed in
the manner herein provided shall be deemed given, whether or
not the holder receives the notice. Each such notice of
redemption will state the method by which the payment of the
Redemption Price will be made.
Section 24. Exchange.
(a) The Board of Directors of the Company may, at
its option, at any time after the occurence of a Section
11(a)(ii) Event, exchange all or part of the then
outstanding and exercisable Rights (which (i) shall not
include Rights that have become void pursuant to the
provisions of Section 7(e) hereof, and (ii) shall include,
without limitation, any Rights issued after the Distribution
Date in connection with the exercise of options pursuant to
the Company's employee benefit plans, where such option is
exercised for securities of the Company or surrendered for
cash) for shares of Common Stock at an exchange ratio of one
share of Common Stock per Right, appropriately adjusted to
reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such exchange
ratio being hereinafter referred to as the "Exchange
Ratio"). Notwithstanding the foregoing, the Board of
Directors may effect such an exchange only if there are at
least two Continuing Directors then in office and a majority
of such Continuing Directors concur with such exchange.
(b) Immediately upon the action of the Board of
Directors of the Company ordering the exchange of any Rights
pursuant to subsection (a) of this Section 24, evidence of
which shall have been filed with the Rights Agent, and
without any further action and without any notice, the right
to exercise such Rights shall terminate and the only right
thereafter of a holder of such Rights shall be to receive
that number of shares of Common Stock equal to the number of
such Rights held by such holder multiplied by the Exchange
Ratio. The Company shall promptly give public notice of any
such exchange; provided, however, that the failure to give,
or any defect in, such notice shall not affect the validity
of such exchange. The Company promptly shall mail a notice
of any such exchange to all of the holders of such Rights at
their last addresses as they appear upon the registry books
of the Rights Agent. Any notice which is mailed in the
manner herein provided shall be deemed given, whether or not
the holder receives the notice. Each such notice of
exchange shall state the method by which the exchange of
shares of Common Stock for Rights will be effected and, in
the event of any partial exchange, the number of Rights
which will be exchanged. Any partial exchange shall be
effected pro rata based on the number of Rights (other than
Rights which have become void pursuant to the provisions of
Section 7(e) hereof) held by each holder of Rights.
(c) In any exchange pursuant to this Section 24,
the Company, at its option, may substitute Preferred Stock
(or equivalent preferred stock, as such term is defined in
Section 11(b) hereof) for shares of Common Stock
exchangeable for Rights, at the initial rate of one one-
thousandth of a share of Preferred Stock (or equivalent
preferred stock) for each share of Common Stock, as
appropriately adjusted to reflect adjustments in the voting
rights of the Preferred Stock pursuant to Section III(A) of
the terms of Preferred Stock attached hereto as Exhibit A,
so that the fraction of a share of Preferred Stock (or
equivalent preferred stock) delivered in lieu of each share
of Common Stock shall have the same voting rights as one
share of Common Stock.
(d) In the event that there shall not be
sufficient shares of Common Stock or Preferred Stock issued
but not outstanding or authorized but unissued to permit any
exchange of Rights as contemplated in accordance with this
Section 24, the Company shall take all such action as may be
necessary to authorize additional shares of Common Stock or
Preferred Stock for issuance upon exchange of the Rights.
(e) The Company shall not be required to issue
fractions of shares of Common Stock or to distribute
certificates which evidence fractional shares of Common
Stock. In lieu of such fractional shares of Common Stock,
there shall be paid to the registered holders of the Right
Certificates with regard to which such fractional shares of
Common Stock would otherwise be issuable, an amount in cash
equal to the same fraction of the current market value of a
whole share of Common Stock. For the purposes of this
subsection (e), the current market value of a whole share of
Common Stock shall be the closing price per share of Common
Stock (as determined pursuant to the second sentence of
Section 11(d)(i) hereof) for the Trading Day immediately
prior to the date of exchange pursuant to this Section 24.
Section 25. Notice of Certain Events.
(a) In case the Company shall propose, at any
time after the Distribution Date, (i) to pay any dividend
payable in stock of any class to the holders of Preferred
Stock or to make any other distribution to the holders of
Preferred Stock (other than a regular quarterly cash
dividend out of earnings or retained earnings of the
Company), or (ii) to offer to the holders of Preferred Stock
rights or warrants to subscribe for or to purchase any
additional shares of Preferred Stock or shares of stock of
any class or any other securities, rights or options, or
(iii) to effect any reclassification of its Preferred Stock
(other than a reclassification involving only the
subdivision of outstanding shares of Preferred Stock), or
(iv) to effect any consolidation or merger into or with any
other Person (other than a Subsidiary of the Company in a
transaction which complies with Section 11(o) hereof), or to
effect any sale or other transfer (or to permit one or more
of its Subsidiaries to effect any sale or other transfer),
in one transaction or a series of related transactions, of
more than 50% of the assets or earning power of the Company
and its Subsidiaries (taken as a whole) to any other Person
or Persons (other than the Company and/or any of its
Subsidiaries in one or more transactions each of which
complies with Section 11(o) hereof), or (v) to effect the
liquidation, dissolution or winding up of the Company, then,
in each such case, the Company shall give to each holder of
a Rights Certificate, to the extent feasible and in
accordance with Section 26 hereof, a notice of such proposed
action, which shall specify the record date for the purposes
of such stock dividend, distribution of rights or warrants,
or the date on which such reclassification, consolidation,
merger, sale, transfer, liquidation, dissolution, or winding
up is to take place and the date of participation therein by
the holders of the shares of Preferred Stock, if any such
date is to be fixed, and such notice shall be so given in
the case of any action covered by clause (i) or (ii) above
at least twenty (20) days prior to the record date for
determining holders of the shares of Preferred Stock for
purposes of such action, and in the case of any such other
action, at least twenty (20) days prior to the date of the
taking of such proposed action or the date of participation
therein by the holders of the shares of Preferred Stock,
whichever shall be the earlier.
(b) In case a Section 11(a)(ii) Event shall
occur, then, in any such case, (i) the Company shall as soon
as practicable thereafter give to each holder of a Rights
Certificate, to the extent feasible and in accordance with
Section 26 hereof, a notice of the occurrence of such event,
which shall specify the event and the consequences of the
event to holders of Rights under Section 11(a)(ii) hereof,
and (ii) all references in the preceding paragraph to
Preferred Stock shall be deemed thereafter to refer also to
Common Stock and/or, if appropriate, other securities.
Section 26. Notices. Notices or demands authorized by
this Agreement to be given or made by the Rights Agent or by
the holder of any Rights Certificate to or on the Company
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:
EG&G, Inc.
45 William Street
Wellesley, MA 02181
Attention: General Counsel
Subject to the provisions of Section 21, any notice or
demand authorized by this Agreement to be given or made by
the Company or by the holder of any Rights Certificate to or
on the Rights Agent shall be sufficiently given or made if
sent by first-class mail, postage prepaid, addressed (until
another address is filed in writing with the Company) as
follows:
The First National Bank of Boston
150 Royall Street
Canton, Massachusetts 02021
Attention: Shareholder Services Division
(1995 EG&G, Inc. Rights Agreement)
Notices or demands authorized by this Agreement to be given
or made by the Company or the Rights Agent to the holder of
any Rights Certificate (or, if prior to the Distribution
Date, to the holder of certificates representing shares of
Common Stock) shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed to such holder
at the address of such holder as shown on the registry books
of the Company.
Section 27. Supplements and Amendments. Prior to the
Distribution Date and subject to the penultimate sentence of
this Section 27, the Company and the Rights Agent shall, if
the Company so directs, supplement or amend any provision of
this Agreement (including the acceleration of or other
amendment to the Final Expiration Date in connection with an
event that would be deemed a Section 11(a)(ii) Event but for
the provisions of the last sentence of Section 11(a)(ii) or
an event that would be deemed a Section 13 Event but for
Section 13(d)) without the approval of any holders of
certificates representing shares of Common Stock. From and
after the Distribution Date and subject to the penultimate
sentence of this Section 27, the Company and the Rights
Agent shall, if the Company so directs, supplement or amend
this Agreement without the approval of any holders of Rights
Certificates in order (i) to cure any ambiguity, (ii) to
correct or supplement any provision contained herein which
may be defective or inconsistent with any other provisions
herein, (iii) to shorten or lengthen any time period
hereunder (which shortening or lengthening shall be
effective only if there are at least two Continuing
Directors then in office and shall require the concurrence
of a majority of such Continuing Directors), or (iv) to
change or supplement the provisions hereunder in any manner
which the Company may deem necessary or desirable and which
shall not adversely affect the interests of the holders of
Rights Certificates (other than an Acquiring Person or an
Affiliate or Associate of an Acquiring Person); provided,
this Agreement may not be supplemented or amended to
lengthen, pursuant to clause (iii) of this sentence, (A) a
time period relating to when the Rights may be redeemed at
such time as the Rights are not then redeemable, or (B) any
other time period unless such lengthening is for the purpose
of protecting, enhancing or clarifying the rights of, and/or
the benefits to, the holders of Rights (other than an
Acquiring Person or an Associate or Affiliate of an
Acquiring Person). Upon the delivery of a certificate from
an appropriate officer of the Company which states that the
proposed supplement or amendment is in compliance with the
terms of this Section 27, the Rights Agent shall execute
such supplement or amendment. Notwithstanding anything
contained in this Agreement to the contrary, no supplement
or amendment shall be made which changes the Redemption
Price, the Final Expiration Date (except as provided in the
first sentence of this Section 27), the Purchase Price or
the number of one one-thousandths of a share of Preferred
Stock for which a Right is exercisable. Prior to the
Distribution Date, the interests of the holders of Rights
shall be deemed coincident with the interests of the holders
of Common Stock.
Section 28. Successors. All the covenants and
provisions of this Agreement by or for the benefit of the
Company or the Rights Agent shall bind and inure to the
benefit of their respective successors and assigns
hereunder.
Section 29. 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)(l)(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 a
determination to redeem or not redeem the Rights or to amend
this Agreement). All such actions, calculations,
interpretations and determinations (including, for purposes
of clause (y) below, all omissions with respect to the
foregoing) which are done or made by the Board in good
faith, shall (x) be final, conclusive and binding on the
Company, the Rights Agent, the holders of the Rights and all
other parties, and (y) not subject the Board to any
liability to the holders of the Rights.
Section 30. Benefits of this Agreement. Nothing in
this Agreement shall be construed to give to any Person
other than the Company, the Rights Agent and the registered
holders of the Rights Certificates (and, prior to the
Distribution Date, registered holders of the Common Stock)
any legal or equitable right, remedy or claim under this
Agreement; but this Agreement shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the
registered holders of the Rights Certificates (and, prior to
the Distribution Date, registered holders of the Common
Stock).
Section 31. Severability. If any term, provision,
covenant or restriction of this Agreement is held by a court
of competent jurisdiction or other authority to be invalid,
void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
Section 32. Governing Law. This Agreement, each Right
and each Rights Certificate issued hereunder shall be deemed
to be a contract made under the laws of the Commonwealth of
Massachusetts and for all purposes shall be governed by and
construed in accordance with the laws of such Commonwealth
applicable to contracts made and to be performed entirely
within such Commonwealth.
Section 33. Counterparts. This Agreement may be
executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together
constitute but one and the same instrument.
Section 34. 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: EG&G, INC.
By: By:
Name: Name:
Title: Title:
Attest: THE FIRST NATIONAL
BANK OF BOSTON
By: By:
Name: Name:
Title: Title:
<PAGE>
Exhibit A
TERMS OF SERIES C JUNIOR PARTICIPATING PREFERRED STOCK
of
EG&G, INC.
(To be attached to a Certificate of Vote of Directors
Establishing a Series of a Class of Stock Pursuant to
Chapter 156B, Section 26 of the General Laws
of the Commonwealth of Massachusetts)
Series C Junior Participating Preferred Stock:
I. Designation and Amount
The shares of such series shall be designated as
"Series C Junior Participating Preferred Stock" (the "Series
C Preferred Stock") and the number of shares constituting
the Series C Preferred Stock shall be 70,000. Such number
of shares may be increased or decreased by resolution of the
Board of Directors; provided, that no decrease shall reduce
the number of shares of Series C Preferred Stock to a number
less than the number of shares then outstanding plus the
number of shares reserved for issuance upon the exercise of
outstanding options, rights or warrants or upon the
conversion of any outstanding securities issued by the
Corporation convertible into Series C Preferred Stock.
II. Dividends and Distributions
(A) Subject to the rights of the holders of any
shares of any series of Preferred Stock (or any similar
stock) ranking prior and superior to the Series C
Preferred Stock with respect to dividends, the holders
of shares of Series C Preferred Stock, in preference to
the holders of Common Stock, par value $1.00 per share
(the "Common Stock"), of the Corporation, and of any
other junior stock, shall be entitled to receive, when,
as and if declared by the Board of Directors out of
funds of the Corporation legally available for the
payment of dividends, quarterly dividends payable in
cash on the first day of March, June, September and
December in each year (each such date being referred to
herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date
after the first issuance of a share or fraction of a
share of Series C Preferred Stock, in an amount per
share (rounded to the nearest cent) equal to the
greater of (a) $1.00 or (b) subject to the provision
for adjustment hereinafter set forth, 1,000 times the
aggregate per share amount of all cash dividends, and
1,000 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions,
other than a dividend payable in shares of Common Stock
or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on
the Common Stock since the immediately preceding
Quarterly Dividend Payment Date or, with respect to the
first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series
C Preferred Stock. In the event the Corporation shall
at any time declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a
subdivision, combination or consolidation of the
outstanding shares of Common Stock (by reclassification
or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares
of Common Stock, then in each such case the amount to
which holders of shares of Series C Preferred Stock
were entitled immediately prior to such event under
clause (b) of the preceding sentence shall be adjusted
by multiplying such amount by a fraction, the numerator
of which is the number of shares of Common Stock
outstanding immediately after such event and the
denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such
event.
(B) The Corporation shall declare a dividend or
distribution on the Series C Preferred Stock as
provided in paragraph (A) of this Section immediately
after it declares a dividend or distribution on the
Common Stock (other than a dividend payable in shares
of Common Stock) and the Corporation shall pay such
dividend or distribution on the Series C Preferred
Stock before the dividend or distribution declared on
the Common Stock is paid or set apart; provided that,
in the event no dividend or distribution shall have
been declared on the Common Stock during the period
between any Quarterly Dividend Payment Date and the
next subsequent Quarterly Dividend Payment Date, a
dividend of $1.00 per share on the Series C Preferred
Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be
cumulative on outstanding shares of Series C Preferred
Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares, unless the
date of issue of such shares is prior to the record
date for the first Quarterly Dividend Payment Date, in
which case dividends on such shares shall begin to
accrue from the date of issue of such shares, or unless
the date of issue is a Quarterly Dividend Payment Date
or is a date after the record date for the
determination of holders of shares of Series C
Preferred Stock entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment
Date, in either of which events such dividends shall
begin to accrue and be cumulative from such Quarterly
Dividend Payment Date. Accrued but unpaid dividends
shall not bear interest. Dividends paid on the shares
of Series C Preferred Stock in an amount less than the
total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record
date for the determination of holders of shares of
Series C Preferred Stock entitled to receive payment of
a dividend or distribution declared thereon, which
record date shall be not more than 60 days prior to the
date fixed for the payment thereof.
III. Voting Rights
The holders of shares of Series C Preferred Stock shall
have the following voting rights:
(A) Subject to the provision for adjustment
hereinafter set forth, each share of Series C Preferred
Stock shall entitle the holder thereof to 1,000 votes
on all matters submitted to a vote of the stockholders
of the Corporation. In the event the Corporation shall
at any time declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a
subdivision, combination or consolidation of the
outstanding shares of Common Stock (by reclassification
or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares
of Common Stock, then in each such case the number of
votes per share to which holders of shares of Series C
Preferred Stock were entitled immediately prior to such
event shall be adjusted by multiplying such number by a
fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after
such event and the denominator of which is the number
of shares of Common Stock that were outstanding
immediately prior to such event.
(B) Except as otherwise provided herein, by law,
or in any other Certificate of Vote of Directors
creating a series of Preferred Stock or any similar
stock, the holders of shares of Series C Preferred
Stock and the holders of shares of Common Stock and any
other capital stock of the Corporation having general
voting rights shall vote together as one class on all
matters submitted to a vote of stockholders of the
Corporation.
(C) (i) If at any time dividends on any Series C
Preferred Stock shall be in arrears in an amount equal
to six quarterly dividends thereon, the holders of the
Series C Preferred Stock, voting as a separate series
from all other series of Preferred Stock and classes of
capital stock, shall be entitled to elect two members
of the Board of Directors in addition to any Directors
elected by any other series, class or classes of
securities and the authorized number of Directors will
automatically be increased by two. Promptly
thereafter, the Board of Directors of this Corporation
shall, as soon as may be practicable, call a special
meeting of holders of Series C Preferred Stock for the
purpose of electing such members of the Board of
Directors. Said special meeting shall in any event be
held within 45 days of the occurrence of such
arrearage.
(ii) During any period when the holders of
Series C Preferred Stock, voting as a separate series,
shall be entitled and shall have exercised their right
to elect two Directors, then and during such time as
such right continues (a) the then authorized number of
Directors shall be increased by two, and the holders of
Series C Preferred Stock, voting as a separate series,
shall be entitled to elect the additional Directors so
provided for, and (b) each such additional Director
shall not be a member of any existing class of the
Board of Directors, but shall serve until the next
annual meeting of stockholders for the election of
Directors, or until his successor shall be elected and
shall qualify, or until his right to hold such office
terminates pursuant to the provisions of this Section
III(C).
(iii) A Director elected pursuant to the terms
hereof may be removed with or without cause by the
holders of Series C Preferred Stock entitled to vote in
an election of such Director.
(iv) If, during any interval between annual
meetings of stockholders for the election of Directors
and while the holders of Series C Preferred Stock shall
be entitled to elect two Directors, there is no such
Director in office by reason of resignation, death or
removal, then, promptly thereafter, the Board of
Directors shall call a special meeting of the holders
of Series C Preferred Stock for the purpose of filling
such vacancy and such vacancy shall be filled at such
special meeting. Such special meeting shall in any
event be held within 45 days of the occurrence of such
vacancy.
(v) At such time as the arrearage is fully
cured, and all dividends accumulated and unpaid on any
shares of Series C Preferred Stock outstanding are
paid, and, in addition thereto, at least one regular
dividend has been paid subsequent to curing such
arrearage, the term of office of any Director elected
pursuant to this Section III(C), or his successor,
shall automatically terminate, and the authorized
number of Directors shall automatically decrease by
two, the rights of the holders of the shares of the
Series C Preferred Stock to vote as provided in this
Section III(C) shall cease, subject to renewal from
time to time upon the same terms and conditions, and
the holders of shares of the Series C Preferred Stock
shall have only the limited voting rights elsewhere
herein set forth.
(D) Except as set forth herein, or as otherwise
provided by law, holders of Series C Preferred Stock
shall have no special voting rights and their consent
shall not be required (except to the extent they are
entitled to vote with holders of Common Stock as set
forth herein) for taking any corporate action.
IV. Certain Restrictions
(A) Whenever quarterly dividends or other
dividends or distributions payable on the Series C
Preferred Stock as provided in Section II are in
arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared,
on shares of Series C Preferred Stock outstanding shall
have been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any
other distributions, on any shares of stock
ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the
Series C Preferred Stock;
(ii) declare or pay dividends, or make any
other distributions, on any shares of stock
ranking on a parity (either as to dividends
or upon liquidation, dissolution or winding up)
with the Series C Preferred Stock, except dividends
paid ratably on the Series C Preferred Stock and
all such parity stock on which dividends are
payable or in arrears in proportion to the total
amounts to which the holders of all such shares
are then entitled;
(iii) redeem or purchase or otherwise
acquire for consideration shares of any
stockranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the
Series C Preferred Stock, provided that the
Corporation may at any time redeem, purchase or
otherwise acquire shares of any such junior stock
in exchange for shares of any stock of the
Corporation ranking junior (either as to dividends
or upon dissolution, liquidation or winding up) to
the Series C Preferred Stock; or
(iv) redeem or purchase or otherwise acquire
for consideration any shares of Series C Preferred
Stock, or any shares of stock ranking on a parity
with the Series C Preferred Stock, except in
accordance with a purchase offer made in writing
or by publication (as determined by the Board of
Directors) to all holders of such shares upon such
terms as the Board of Directors, after
consideration of the respective annual dividend
rates and other relative rights and preferences of
the respective series and classes, shall determine
in good faith will result in fair and equitable
treatment among the respective series or classes.
(B) The Corporation shall not permit any
subsidiary of the Corporation to purchase or otherwise
acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under
paragraph (A) of this Section IV, purchase or otherwise
acquire such shares at such time and in such manner.
V. Reacquired Shares
Any shares of Series C Preferred Stock purchased or
otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the
acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series
of Preferred Stock subject to the conditions and
restrictions on issuance set forth herein, in the Articles
of Organization, in any other Certificate of Vote of
Directors creating a series of Preferred Stock or any
similar stock or as otherwise required by law.
VI. Liquidation, Dissolution or Winding Up
(A) Upon any liquidation, dissolution or winding up of
the Corporation, no distribution shall be made (1) to the
holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to
the Series C Preferred Stock unless, prior thereto, the
holders of shares of Series C Preferred Stock shall have
received $1,000 per share, plus an amount equal to accrued
and unpaid dividends and distributions thereon, whether or
not declared, to the date of such payment, provided that the
holders of shares of Series C Preferred Stock shall be
entitled to receive an aggregate amount per share, subject
to the provision for adjustment hereinafter set forth, equal
to 1,000 times the aggregate amount to be distributed per
share to holders of shares of Common Stock, or (2) to the
holders of shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up)
with the Series C Preferred Stock, except distributions made
ratably on the Series C Preferred Stock and all such parity
stock in proportion to the total amounts to which the
holders of all such shares are entitled upon such
liquidation, dissolution or winding up.
(B) Neither the consolidation, merger or other
business combination of the Corporation with or into any
other corporation nor the sale, lease, exchange or
conveyance of all or any part of the property, assets or
business of the Corporation shall be deemed to be a
liquidation, dissolution or winding up of the Corporation
for purposes of this Section VI.
(C) In the event the Corporation shall at any time
declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in
each such case the aggregate amount to which holders of
shares of Series C Preferred Stock were entitled immediately
prior to such event under the proviso in clause (1) of
paragraph (A) of this Section VI shall be adjusted by
multiplying such amount by a fraction the numerator of which
is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding
immediately prior to such event.
VII. Consolidation, Merger, etc.
Notwithstanding anything to the contrary contained
herein, in case the Corporation shall enter into any
consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or
changed into other stock or securities, cash and/or any
other property, then in any such case each share of Series C
Preferred Stock shall at the same time be similarly
exchanged or changed into an amount per share, subject to
the provision for adjustment hereinafter set forth, equal to
1,000 times the aggregate amount of stock, securities, cash
and/or any other property (payable in kind), as the case
may be, into which or for which each share of Common Stock
is changed or exchanged. In the event the Corporation shall
at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision,
combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in
each such case the amount set forth in the preceding
sentence with respect to the exchange or change of shares of
Series C Preferred Stock shall be adjusted by multiplying
such amount by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number
of shares of Common Stock that were outstanding immediately
prior to such event.
VIII. Redemption
The shares of Series C Preferred Stock shall not be
redeemable.
IX. Rank
The Series C Preferred Stock shall rank, with respect
to the payment of dividends and the distribution of assets,
on a parity with the Series B Junior Participating Preferred
Stock of the Corporation and junior to all series of any
other class of the Corporation's Preferred Stock issued
either before or after the issuance of the Series C
Preferred Stock, unless the terms of any such series shall
provide otherwise.
X. Amendment
The Articles of Organization of the Corporation shall
not be amended in any manner which would materially alter or
change the powers, preferences or special rights of the
Series C Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of at least two-
thirds of the outstanding shares of Series C Preferred
Stock, voting together as a single series.
XI. Fractional Shares
Series C Preferred Stock may be issued in fractions of
a share which are integral multiples of one-thousandth of a
share which shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and have the
benefit of all other rights of holders of Series C Preferred
Stock.
<PAGE>
[Form of Rights Certificate]
Certificate No. R- ______
Rights
NOT EXERCISABLE AFTER FEBRUARY 8, 2005 OR EARLIER IF
REDEEMED OR EXCHANGED BY THE COMPANY. THE RIGHTS ARE
SUBJECT TO REDEMPTION AT $.01 PER RIGHT AND TO EXCHANGE ON
THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING
PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT) AND
ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND
VOID. [THE RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE
ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME
AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN
ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS
AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE
RIGHTS REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE
CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF SUCH AGREEMENT.]
Rights Certificate
EG&G, INC.
This certifies that , or
registered assigns, is the registered owner of the number of
Rights set forth above, each of which entitles the owner
thereof, subject to the terms, provisions and conditions of
the Rights Agreement, dated as of January 25, 1995 (the
"Rights Agreement"), between EG&G, Inc., a Massachusetts
corporation (the "Company"), and The First National Bank of
Boston, a national banking association (the "Rights Agent"),
to purchase from the Company after the Distribution Date (as
such term is defined on the Rights Agreement) and at any
time prior to 5:00 P.M. (Boston time) on February 8, 2005 at
the office of the Rights Agent designated for such purpose,
or its successors as Rights Agent, one one-thousandth of a
fully paid, non-assessable share of Series C Junior
Participating Preferred Stock (the "Preferred Stock") of the
Company, $1.00 par value per share, at a purchase price of
$60.00 in cash per one one-thousandth of a share (the
"Purchase Price"), upon presentation and surrender of this
Rights Certificate with the Form of Election to Purchase and
related Certificate duly executed. The number of Rights
evidenced by this Rights Certificate (and the number of one
one-thousandths of a share of Preferred Stock which may be
purchased upon exercise hereof) set forth above, and the
Purchase Price set forth above, are the number and Purchase
Price as of the close of business on
February 8, 1995, based on the Preferred Stock as
constituted at such date. Capitalized terms used herein and
not otherwise defined herein shall have the meanings
ascribed to such terms in the Rights Agreement.
Upon the occurrence of a Section 11(a)(ii) Event, if
the Rights evidenced by this Rights Certificate are
beneficially owned by (i) an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person (as such
terms are defined in the Rights Agreement), (ii) a
transferee of any such Acquiring Person, Associate or
Affiliate who becomes a transferee after the Acquiring
Person becomes such, or (iii) under certain circumstances
specified in the Rights Agreement, a transferee of a person
who, concurrently with or after such transfer, became an
Acquiring Person, or an Affiliate or Associate of an
Acquiring Person, such Rights shall become null and void and
no holder hereof shall have any right with respect to such
Rights from and after the occurrence of such Section
11(a)(ii) Event.
As provided in the Rights Agreement, the Purchase Price
and the number and kind of shares of Preferred Stock or
other securities which may be purchased upon the exercise of
the Rights evidenced by this Rights Certificate are subject
to modification and adjustment upon the happening of certain
events, including a Section 11(a)(ii) Event.
This Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which
terms, provisions and conditions are hereby incorporated
herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full
description of the rights, limitations of rights,
obligations, duties and immunities hereunder of the Rights
Agent, the Company and the holders of the Rights
Certificates, which limitations of rights include the
temporary suspension of the exercisability of such Rights
under the specific circumstances set forth in the Rights
Agreement. Copies of the Rights Agreement are on file at
the principal offices of the Company and are available upon
written request to the Company.
This Rights Certificate, with or without other Rights
Certificates, upon surrender at the office of the Rights
Agent designated for such purpose, with the Form of Election
and Certificate set forth on the reverse side duly executed,
may be exchanged for another Rights Certificate or Rights
Certificates of like tenor and date evidencing Rights
entitling the holder to purchase a like aggregate number of
one one-thousandths of a share of Preferred Stock as the
Rights evidenced by the Rights Certificate or Rights
Certificates surrendered shall have entitled such holder to
purchase. If this Rights Certificate shall be exercised in
part, the holder shall be entitled to receive upon surrender
hereof another Rights Certificate or Rights Certificates for
the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate may be redeemed by the
Company at its option at a redemption price of $.01 per
Right at any time prior to the earlier of the close of
business on (i) the tenth day following the Stock
Acquisition Date (as such time period may be extended
pursuant to the Rights Agreement), and (ii) the Final
Expiration Date.
Subject to the provisions of the Rights Agreement, the
Company may, at its option, at any time after a Section
11(a)(ii) Event, subject to the approval of a majority of
the Continuing Directors, exchange all or part of the Rights
evidenced by this Certificate for shares of the Company's
Common Stock or for Preferred Stock (or shares of a class or
series of the Company's preferred stock having the same
rights, privileges and preferences as the Preferred Stock).
No fractional shares of Preferred Stock will be issued
upon the exercise of any Right or Rights evidenced hereby
(other than fractions which are integral multiples of one
one-thousandth of a share of Preferred Stock, which may, at
the election of the Company, be evidenced by depositary
receipts), but in lieu thereof a cash payment will be made,
as provided in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any
purpose the holder of shares of Preferred Stock or of any
other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything
contained in the Rights Agreement or herein be construed to
confer upon the holder hereof, as such, any of the rights of
a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of
meetings or other actions affecting stockholders (except as
provided in the Rights Agreement), or to receive dividends
or subscription rights, or otherwise, until the Right or
Rights evidenced by this Rights Certificate shall have been
exercised as provided in the Rights Agreement.
This Rights Certificate shall not be valid or
obligatory for any purpose until it shall have been
countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers
of the Company and its corporate seal.
Dated as of _______________, 199_
ATTEST: EG&G, INC.
______________________________ By:___________________________
Clerk
Title:________________________
Countersigned:
THE FIRST NATIONAL BANK OF BOSTON
as Rights Agent
By:___________________________
Authorized Signature
<PAGE>
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED
_____________________________________________ hereby sells,
assigns and transfers unto _______________________
________________________________________________________________
(Please print name and address of transferee)
________________________________________________________________
this Rights Certificate, together with all right, title
and interest therein, and does hereby irrevocably constitute
and appoint ______________________ Attorney, to transfer the
within Rights Certificate on the books of the within-named
Company, with full power of substitution.
Dated: ________________, 199_
_____________________________
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies that the Rights
evidenced by this Rights Certificate are not beneficially
owned by an Acquiring Person or an Affiliate or Associate
thereof (as such terms are defined in the Rights Agreement).
Dated: ______________, 199_
_____________________________
Signature
Signature Guaranteed:<PAGE>
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise
Rights represented by the Rights Certificate.)
To: EG&G, INC.
The undersigned hereby irrevocably elects to exercise
___________ Rights represented by this Rights Certificate to
purchase the shares of Preferred Stock issuable upon the
exercise of the Rights (or such other securities of the
Company or of any other person which may be issuable upon
the exercise of the Rights) and requests that certificates
for such shares be issued in the name of and delivered to:
Please insert social security
or other identifying number
_________________________________
_______________________________________________________________
(Please print name and address)
_______________________________________________________________
If such number of Rights shall not be all the Rights
evidenced by this Rights Certificate, a new Rights
Certificate for the balance of such Rights shall be
registered in the name of and delivered to:
Please insert social security
or other identifying number
_________________________________
_______________________________________________________________
(Please print name and address)
_______________________________________________________________
Dated: ______________, 199_
_____________________________
Signature
<PAGE>
Signature Guaranteed:
Certificate
The undersigned hereby certifies that the Rights
evidenced by this Rights Certificate are not beneficially
owned by an Acquiring Person or an Affiliate or Associate
thereof (as such terms are defined in the Rights Agreement).
Dated: _______________, 199_
_____________________________
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Form of Assignment or
Form of Election to Purchase must correspond to the name as
written upon the face of this Rights Certificate in every
particular, without alteration or enlargement or any change
whatsoever.
In the event the certification set forth above in the
Form of Assignment or the Form of Election to Purchase, as
the case may be, is not completed, the Company and the
Rights Agent will deem the beneficial owner of the Rights
evidenced by this Rights Certificate to be an Acquiring
Person or an Affiliate or Associate thereof (as defined in
the Rights Agreement) and such Assignment or Election to
Purchase will not be honored.
<PAGE>
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED STOCK
On January 25, 1995, the Board of Directors of EG&G,
Inc. (the "Company") declared a dividend of one preferred
stock purchase right (a "Right") for each outstanding share
of the Company's Common Stock to stockholders of record at
the close of business on February 8, 1995 (the "Record
Date"). Each Right entitles the registered holder to
purchase from the Company a unit consisting of one one-
thousandth of a share (a "Unit") of Series C Junior
Participating Preferred Stock, $1.00 par value (the
"Preferred Stock"), at a purchase price of $60.00 in cash
per Unit (the "Purchase Price"), subject to adjustment. The
description and terms of the Rights are set forth in a
Rights Agreement dated as of January 25, 1995 (the "Rights
Agreement") between the Company and The First National Bank
of Boston, as Rights Agent.
Initially, the Rights will be attached to all Common
Stock certificates representing shares then outstanding, and
no separate Rights Certificates will be distributed. The
Rights will separate from the Common Stock and a
Distribution Date will occur upon the earlier of (i) 10 days
following a public announcement that a person or group of
affiliated or associated persons (an "Acquiring Person") has
acquired, or obtained the right to acquire, beneficial
ownership of 20% or more of the outstanding shares of Common
Stock (the "Stock Acquisition Date"), or (ii) 10 business
days following the commencement of a tender offer or
exchange offer that would result in a person or group
beneficially owning 30% or more of such outstanding shares
of Common Stock. Until the Distribution Date (or earlier
redemption or expiration of the rights), (i) the Rights will
be evidenced by the Common Stock certificates and will be
transferred with and only with such Common Stock
certificates, (ii) new Common Stock certificates issued
after the Record Date will contain a notation incorporating
the Rights Agreement by reference and (iii) the surrender
for transfer of any certificates for Common Stock
outstanding, even without such notation, will also
constitute the transfer of the Rights associated with the
Common Stock represented by such certificate.
The Rights are not exercisable until the Distribution
Date and will expire at the close of business on February 8,
2005, subject to earlier expiration or termination as
provided in the Rights Agreement.
As soon as practicable after the Distribution Date,
separate certificates evidencing the Rights ("Rights
Certificates") will be mailed to holders of record of the
Common Stock as of the close of business on the Distribution
Date and, thereafter, such separate Rights Certificates
alone will represent the Rights. Except as otherwise
determined by the Board of Directors and except in
connection with shares of Common Stock issued upon the
exercise of employee stock options, issuances under other
employee stock benefit plans or the conversion of
convertible securities issued hereafter, only shares of
Common Stock issued prior to the Distribution Date will be
issued with Rights.
In the event that a Person becomes an Acquiring Person,
except pursuant to an offer for all outstanding shares of
Common Stock which the independent directors determine to be
fair to, and otherwise in the best interests of,
shareholders (a "Permitted Offer"), each holder of a Right
will thereafter have the right to receive, upon exercise,
that number of shares of Common Stock (or, in certain
circumstances, cash, property or other securities of the
Company) which equals the exercise price of the Right
divided by one-half of the current market price (as defined
in the Rights Agreement) of the Common Stock at the date of
the occurrence of the event. However, Rights are not
exercisable following the occurrence of any of the events
set forth above until such time as the Rights are no longer
redeemable by the Company as set forth below.
Notwithstanding any of the foregoing, following the
occurrence of the event set forth in this paragraph, all
Rights that are, or (under certain circumstances specified
in the Rights Agreement) were, beneficially owned by any
Acquiring Person will be null and void. The event set forth
in this paragraph is referred to as a "Section 11(a)(ii)
Event."
For example, at an exercise price of $60.00 per Right,
each Right not owned by an Acquiring Person (or by certain
related parties) following an event set forth in the
preceding paragraph would entitle its holder to purchase for
$60.00 such number of shares of Common Stock (or other
consideration, as noted above) as equals $60.00 divided by
one-half of the current market price (as defined in the
Rights Agreement) of the Common Stock. Assuming that the
Common Stock had a per share value of $30.00 at such time,
the holder of each valid Right would be entitled to purchase
four shares of Common Stock for $60.00.
In the event that, at any time following the Stock
Acquisition Date, (i) the Company is acquired in a merger or
other business combination transaction in which either the
Company is not the surviving corporation or its Common Stock
is changed or exchanged (other than a merger which follows a
Permitted Offer), or (ii) 50% or more of the Company's
assets or earning power is sold or transferred, each holder
of a Right (except Rights which previously have been voided
as set forth above) shall thereafter have the right to
receive, upon exercise, that number of shares of common
stock of the acquiring company which equals the exercise
price of the Right divided by one-half of the current market
price of such common stock at the date of the occurrence of
the event.
For example, at an exercise price of $60.00 per Right,
each valid Right following an event set forth in the
preceding paragraph would entitle its holder to purchase for
$60.00 such number of shares of common stock of the
acquiring company as equals $60.00 divided by one-half of
the current market price (as defined in the Rights
Agreement) of such common stock. Assuming that such common
stock had a per share value of $30.00 at such time, the
holder of each valid Right would be entitled to purchase
four shares of common stock of the acquiring company for
$60.00.
At any time after the occurrence of a Section 11(a)(ii)
Event, and subject to the concurrence of a majority of the
Continuing Directors (as defined in the Rights Agreement),
the Board of Directors of the Company may exchange the
Rights (other than Rights owned by such Acquiring Person
which have become void), in whole or in part, at an exchange
ratio of one share of Common Stock, or one one-thousandth of
a share of Preferred Stock (or of a share of a class or
series of the Company's preferred stock having equivalent
rights, preferences and privileges), per Right (subject to
adjustment).
The Purchase Price payable, and the number of Units of
Preferred Stock or other securities or property issuable,
upon exercise of the Rights are subject to adjustment from
time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or
reclassification of, the Preferred Stock, (ii) if holders of
the Preferred Stock are granted certain rights or warrants
to subscribe for Preferred Stock or convertible securities
at less than the then-current market price of the Preferred
Stock, or (iii) upon the distribution to holders of the
Preferred Stock of evidences of indebtedness or assets
(excluding regular periodic cash dividends paid out of
earnings or retained earnings) or of subscription rights or
warrants (other than those referred to above).
The number of Rights associated with each share of
Common Stock is also subject to adjustment in the event of a
stock split of the Common Stock or a stock dividend on the
Common Stock payable in Common Stock or subdivisions,
consolidations or combinations of the Common Stock
occurring, in any such case, prior to the Distribution Date.
Preferred Stock purchasable upon exercise of the Rights
will not be redeemable. Each share of Preferred Stock will
be entitled to a minimum preferential quarterly dividend
payment of $1.00 per share and will be entitled to an
aggregate dividend of 1,000 times the dividend declared per
share of Common Stock. In the event of liquidation, the
holders of the Preferred Stock will be entitled to a minimum
preferential liquidation payment of $1,000 per share and
will be entitled to an aggregate payment of 1,000 times the
payment made per share of Common Stock. Each share of
Preferred Stock will have 1,000 votes, voting together with
the Common Stock. Finally, in the event of any merger,
consolidation or other transaction in which Common Stock is
exchanged, each share of Preferred Stock will be entitled to
receive 1,000 times the amount received per share of Common
Stock. These rights are protected by customary antidilution
provisions.
Because of the nature of the Preferred Stock's
dividend, liquidation and voting rights, the value of one
one-thousandth of a share of Preferred Stock purchasable
upon exercise of each Right should approximate the value of
one share of Common Stock.
With certain exceptions, no adjustment in the Purchase
Price will be required until cumulative adjustments amount
to at least 1% of the Purchase Price. No fractional Units
will be issued and, in lieu thereof, an adjustment in cash
will be made based on the market price of the Preferred
Stock on the last trading date prior to the date of
exercise.
At any time until ten days following the Stock
Acquisition Date, the Company may redeem the Rights in
whole, but not in part, at a price of $.01 per Right (the
"Redemption Price"), payable in cash or stock. Immediately
upon the action of the Board of Directors ordering
redemption of the Rights, the Rights will terminate and the
only right of the holders of Rights will be to receive the
Redemption Price.
Until a Right is exercised, the holder thereof, as
such, will have no rights as a stockholder of the Company,
including, without limitation, the right to vote or to
receive dividends. While the distribution of the Rights
will not be taxable to stockholders or to the Company,
stockholders may, depending upon the circumstances,
recognize taxable income in the event that the Rights become
exercisable for Common Stock (or other consideration) of the
Company or for common stock of the acquiring company as set
forth above.
Prior to the Distribution Date, the terms of the Rights
are subject to amendment by the Board of Directors without
the consent of the holders of the Rights, except that (i)
the redemption price of the Rights, the exercise price of
the Rights and the number of Shares of Preferred Stock
issuable upon exercise of the Rights are not subject to
amendment and (b) the expiration date of the Rights is
subject to amendment (including acceleration) only in
connection with an acquisition of the Company at a price
determined to be fair by a majority of the members of the
Company's Board of Directors who are not officers of the
Company and who are not affiliated with the acquiring party.
After the Distribution Date, only limited terms of the
Rights are subject to amendment by the Board, and the
consent of the Continuing Directors (as defined in the
Rights Agreement) is required where appropriate to protect
the Rights.
A copy of the Rights Agreement has been filed with the
Securities and Exchange Commission as an Exhibit to a
Registration Statement on Form 8-A dated January 27, 1995.
A copy of the Rights Agreement is available free of charge
from the Company. This summary description of the Rights
does not purport to be complete and is qualified in its
entirety by reference to the Rights Agreement, which is
incorporated herein by reference.
<PAGE>
FOR IMMEDIATE RELEASE For further information contact:
25 January 1995 Deborah S. Lorenz, EG&G, Inc.
Tel. (617) 431-4306
NYSE Symbol: EGG
EG&G, INC., ADOPTS A NEW SHAREHOLDER
RIGHTS PLAN
Wellesley, Massachusetts....EG&G, Inc., announced today that
its Board of Directors has adopted a new Shareholder Rights
Plan. Under the Plan, preferred stock purchase rights will be
distributed on February 8, 1995 as a dividend at the rate of
one Right for each share of EG&G, Inc. Common Stock
outstanding as of the close of business on that date. In
connection with the adoption of this new Shareholder Rights
Plan, EG&G, Inc. announced that it was redeeming the Rights
issued by it pursuant to the Company's January 28, 1987 Rights
Agreement. The redemption price for these Rights is $.01 per
Right, which will be paid on or about February 14, 1995 to
shareholders of record as of February 8, 1995. The paying
agent for the transaction is The First National Bank of
Boston.
The new Rights Plan has not been adopted in response to any
effort to acquire control of the Company, and the Board is not
aware of any such effort. The Plan is designed to enable all
shareholders of EG&G to realize the long-term value of their
investment in the Company in the event of an inadequate
takeover offer. The Rights will expire on February 8, 2005
unless earlier redeemed or exchanged.
John M. Kucharski, Chairman and Chief Executive Officer of
EG&G noted that the Rights Plan "will not restrict
consideration by the Board of any offer on terms favorable to
all shareholders. This initiative is intended to protect the
interests of shareholders in the event the Company is
confronted with coercive or unfair takeover tactics." He
further noted that such tactics include "a partial or two-
tiered tender offer that does not treat all shareholders
equally; the acquisition of shares in the open market, or
otherwise, constituting control without offering fair value to
all shareholders; or other abusive takeover tactics designed
to deprive shareholders of full value for their shares."
Similar Shareholder Rights Plans have been adopted by over
1,500 public companies.
<PAGE>
EG&G, INC., ADOPTS A NEW SHAREHOLDERS RIGHTS PLAN
Page 2 of 2
25 January 1995
A Synopsis
Each Right will entitle the holders of Common Stock of EG&G
to purchase one one-thousandth of a share of a new series of
junior participating preferred stock of the Company at an
exercise price of sixty dollars ($60). At present, the
Company does not have any class of preferred stock
outstanding.
The Rights will be exercisable only if a person or group has
acquired beneficial ownership of
20 percent or more of the Common Stock of the Company or
announces a tender or exchange offer that would result in
such person or group owning 30 percent or more of the Common
Stock of the Company.
If any person becomes the beneficial owner of 20 percent or
more of the shares of Common Stock of the Company, other
than by means of a tender or exchange offer for all shares
at a fair price as determined by the non-employee Board
members, each Right, not owned by the 20 percent or more
beneficial owner, will enable its holder to purchase shares
of the Company's Common Stock at one-half of the current
market price of such Common Stock at the date of the
occurrence of the event.
If the Company is involved in a merger or other business
combination transaction with another person or group in
which it is not the surviving corporation or in connection
with which its Common Stock is changed or converted, or it
sells or transfers 50 percent or more of its assets or
earning power to another person, each Right that has not
previously been exercised will entitle its holder to
purchase shares of Common Stock of such other person at one-
half of the current market price of such Common Stock at the
date of the occurrence of the event.
The Company will generally be entitled to redeem the Rights
at $.01 per Right at any time until the 10th day following
public announcement that a 20 percent stock position has
been acquired and in certain other circumstances.
EG&G is a global technology company that supplies an array of
products and technical services to manufacturers and end-users
in industrial and government markets.
##
