<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
----------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): January 21, 2000
INTERNATIONAL REMOTE IMAGING SYSTEMS, INC.
(Exact Name of Registrant as Specified in Charter)
DELAWARE 1-9767 94-2579751
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
9162 ETON AVENUE, CHATSWORTH, CALIFORNIA 91311
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (818) 709-1244
<PAGE> 2
ITEM 5. OTHER EVENTS.
On December 22, 1999, the Board of Directors of International Remote
Imaging Systems, Inc. ("IRIS") adopted a stockholder rights plan, pursuant to
which a distribution of one right for each outstanding share of IRIS Common
Stock ("COMMON STOCK") was declared, payable to stockholders of record on
February 7, 2000, and with respect to Common Stock issued thereafter until the
Distribution Date (as defined below), and, in certain circumstances, with
respect to Common Stock issued after the Distribution Date. In connection with
the stockholder rights plan, IRIS entered into a Rights Agreement with
Continental Stock Transfer & Trust Company, as Rights Agent, dated January 21,
2000 (the "RIGHTS AGREEMENT"), and filed a duly adopted Certificate of
Designation, Preferences and Rights of Series C Preferred Stock of IRIS (the
"PREFERRED STOCK"), effective on January 21, 2000.
As more fully described in the Rights Agreement, each Right, when it
becomes exercisable, entitles the registered holder to purchase from IRIS one
one-thousandth (1/1000th) of a share of Preferred Stock at a price of $9.00 per
one one-thousandth (1/1000th) of a share of Preferred Stock (the "PURCHASE
PRICE"), subject to adjustment. The Rights become exercisable upon the earliest
to occur of (i) a person or group of affiliated or associated persons having
acquired, without the prior approval of IRIS' Board, beneficial ownership of 20%
or more of the outstanding shares of Common Stock (except as specifically stated
in the Rights Agreement, an "ACQUIRING PERSON"); or (ii) 10 days (or such later
date as IRIS' Board may determine) following the commencement of, or
announcement of an intention to make, a tender offer or exchange offer (the
"DISTRIBUTION DATE"). The Rights are not exercisable until the Distribution Date
and will expire at the close of business on December 22, 2009, unless earlier
redeemed by IRIS.
At any time prior to the earlier to occur of (i) a person becoming an
Acquiring Person or (ii) the expiration of the Rights, and under certain other
circumstances, IRIS may redeem the Rights in whole, but not in part, at a price
(payable in cash or, at IRIS' election, in Common Stock) of $.001 per Right (the
"REDEMPTION PRICE"). Additionally, IRIS may redeem the outstanding Rights in
whole, but not in part, at the Redemption Price, in connection with a merger or
other business combination transaction or series of transactions involving IRIS
in which all holders of shares of Common Stock are treated alike but not
involving an Acquiring Person or its affiliates or associates.
The Rights Agreement, the Certificate of Designation, Preferences and
Rights and the Press Release announcing the adoption of the shareholders rights
plan are attached to this Current Report on Form 8-K as Exhibits 99.1, 99.2 and
99.3, respectively.
2
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
INTERNATIONAL REMOTE IMAGINGSYSTEMS, INC.
Dated: January 26, 2000 By: /s/ MARTIN S. McDERMUT
-------------------------------------
Martin S. McDermut
Vice President, Finance and
Administration, Chief Financial
Officer and Secretary
3
<PAGE> 4
EXHIBIT INDEX
NO. DOCUMENT
- --- --------
99.1 Rights Agreement, dated as of January 21, 2000, between
IRIS and Continental Stock Transfer & Trust Company, as
Rights Agent, with related exhibits.
99.2 Certificate of Designation, Preferences and Rights of
Series C Preferred Stock of IRIS, effective January 21,
2000. (Included as Exhibit A to Exhibit 99.1).
99.3 Press Release announcing adoption of shareholder rights
plan by Board of Directors of IRIS, dated January 25, 2000.
4
<PAGE> 1
EXHIBIT 99.1
-------------------------------------------------------
INTERNATIONAL REMOTE IMAGING SYSTEMS, INC.
and
CONTINENTAL STOCK TRANSFER & TRUST COMPANY, AS RIGHTS AGENT
RIGHTS AGREEMENT
DATED AS OF JANUARY 21, 2000
-------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 1. Certain Definitions. 1
Section 2. Appointment of Rights Agent. 5
Section 3. Issuance of Right Certificates. 5
Section 4. Form of Right Certificate. 7
Section 5. Countersignature and Registration. 8
Section 6. Transfer, Split-Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right
Certificates. 8
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights. 9
Section 8. Cancellation and Destruction of Right Certificates. 11
Section 9. Reservation and Availability of Preferred Stock. 12
Section 10. Preferred Stock Record Date. 13
Section 11. Adjustment of Purchase Price, Number and Kind of Shares
or Number of Rights. 13
Section 12. Certificate of Adjusted Purchase Price or Number of Shares. 19
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power. 20
Section 14. Fractional Rights and Fractional Shares. 22
Section 15. Rights of Action. 23
Section 16. Agreement of Right Holders. 24
Section 17. Right Certificate Holder Not Deemed a Stockholder. 24
Section 18. Concerning the Rights Agent. 25
Section 19. Merger or Consolidation or Change of Name of Rights Agent. 25
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
Section 20. Duties of Rights Agent. 26
Section 21. Change of Rights Agent. 28
Section 22. Issuance of New Right Certificates. 29
Section 23. Redemption and Termination. 29
Section 24. Notice of Certain Events. 30
Section 25. Miscellaneous. 31
Section 26. Exchange. 33
</TABLE>
ii
<PAGE> 4
RIGHTS AGREEMENT
This RIGHTS AGREEMENT (this "AGREEMENT") is made as of this 21st day of
January, 2000 by and between International Remote Imaging Systems, Inc., a
Delaware corporation (the "CORPORATION"), and Continental Stock Transfer & Trust
Company, a New York banking corporation (the "RIGHTS AGENT"), with respect to
the following facts and circumstances.
A. The Board of Directors of the Corporation has authorized and
declared a dividend of one preferred share purchase right (a "RIGHT") for each
share of Common Stock (as hereinafter defined) of the Corporation outstanding at
the Close of Business (as hereinafter defined) on February 7, 2000 (the "RECORD
DATE"), each Right representing the right to purchase one one-thousandth
(1/1000th) of a share of Preferred Stock (as hereinafter defined), upon the
terms and subject to the conditions herein set forth.
B. The Board of Directors of the Corporation has further authorized and
directed the issuance of one Right with respect to each share of Common Stock
that shall become outstanding between the Record Date and the earliest of the
Distribution Date, the Redemption Date or the Final Expiration Date (as such
terms are hereinafter defined); provided, however, that Rights may be issued
with respect to shares of Common Stock that shall become outstanding after the
Distribution Date and prior to the earlier of the Redemption Date and the Final
Expiration Date in accordance with the provisions of Section 22 of this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements herein set forth, the parties hereby agree as follows:
1. CERTAIN DEFINITIONS.
For purposes of this Agreement, the following terms have the meanings
indicated:
1.1. "ACQUIRING PERSON" means any Person who or which, together with
all Affiliates and Associates of such Person, without the prior approval of the
Corporation's Board of Directors, shall be the Beneficial Owner of 20% or more
of the then outstanding shares of Common Stock (other than as a result of a
Permitted Offer) or was such a Beneficial Owner at any time after the date
hereof, whether or not such person continues to be the Beneficial Owner of 20%
or more of the then outstanding shares of Common Stock. Notwithstanding the
foregoing: (A) the term "Acquiring Person" shall not include (i) the
Corporation, (ii) any Subsidiary of the Corporation, (iii) any employee benefit
plan of the Corporation or of any Subsidiary of the Corporation, (iv) any Person
or entity organized, appointed or established by the Corporation or any
Subsidiary of the Corporation for or pursuant to the terms of any such plan, or
(v) any Person who or which, together with all Affiliates and Associates of such
Person, is or becomes the Beneficial Owner of 20% or more of the then
outstanding shares of Common Stock as a result of the acquisition of shares of
Common Stock directly from the Corporation; and (B) no Person shall be deemed to
be an "Acquiring Person" either (i) as a result of the acquisition of Common
Stock by the Corporation which, by reducing the number of shares of Common Stock
outstanding, increases the proportional number of shares beneficially owned by
-1-
<PAGE> 5
such Person together with all Affiliates and Associates of such Person;
provided, however, that if (X) a Person would become an Acquiring Person (but
for the operation of this subclause (B)(i)) as a result of the acquisition of
shares of Common Stock by the Corporation, and (Y) after such share acquisition
by the Corporation, such Person, or an Affiliate or Associate of such Person,
becomes the Beneficial Owner of any additional shares of Common Stock, then such
Person shall be deemed an Acquiring Person, or (ii) if (X) within eight (8) days
after such Person would otherwise have become an Acquiring Person (but for the
operation of this subclause (B)(ii)), such Person notifies the Board of
Directors of the Corporation that such Person did so inadvertently and (Y)
within two (2) days after such notification, such Person is the Beneficial Owner
of less than 20% of the outstanding shares of Common Stock.
1.2. "ACT" means the Securities Act of 1933, as amended.
1.3. "ADJUSTED NUMBER OF SHARES" and "ADJUSTED PURCHASE PRICE" have the
respective meanings set forth in Section 11.1.3 hereof.
1.4. "ADJUSTMENT SHARES" has the meaning set forth in Section 11.1.2
hereof.
1.5. "AFFILIATE" and "ASSOCIATE" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under
the Exchange Act.
1.6. The term "CURRENT PER SHARE MARKET PRICE" shall have the meaning
set forth in Section 11.4.1 hereof when used with respect to a "Security" (as
defined in said Section 11.4.1) and shall have the meaning set forth in Section
11.4.2 when used with respect to the Preferred Stock.
1.7. A Person is the "BENEFICIAL OWNER" of and "BENEFICIALLY OWNS" any
securities which:
1.7.1. such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly;
1.7.2. such Person or any of such Person's Affiliates or
Associates has (A) the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any agreement,
arrangement or understanding, or upon the exercise of conversion rights,
exchange rights, rights (other than the Rights), warrants or options, or
otherwise; provided, however, that a Person shall not be deemed the Beneficial
Owner of, or to beneficially own, securities tendered pursuant to a tender or
exchange offer made by or on behalf of such Person or any of such Person's
Affiliates or Associates until such tendered securities are accepted for
purchase or exchange; or (B) the right to vote pursuant to any agreement,
arrangement or understanding; provided, however, that a Person shall not be
deemed the Beneficial Owner of, or to beneficially own, any security if the
agreement, arrangement or understanding to vote such security (1) arises solely
from a revocable proxy or consent given to such Person in response to a public
proxy or consent solicitation made pursuant to, and in accordance with, the
applicable rules and regulations promulgated under the Exchange Act and (2) is
not also then reportable on Schedule 13D under the Exchange Act (or any
comparable or successor report); or
-2-
<PAGE> 6
1.7.3. 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 relating to the acquisition, holding, voting (except to the extent
contemplated by the proviso to subclause (B) of Section 1.7.2), or disposing of
any securities of the Corporation.
Notwithstanding anything in this Section 1.7 to the contrary, the
phrase "THEN OUTSTANDING," when used with reference to a Person's Beneficial
Ownership of securities of the Corporation, 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.
Notwithstanding anything in this Section 1.7 to the contrary, no
Person shall be deemed to beneficially own any securities solely by reason of
such Person being a party to a customary agreement pursuant to which such Person
acts or agrees to act as an underwriter with respect to a bona fide public
offering of securities.
No decision reached, or action taken, by the Board of Directors of
the Corporation or any committee thereof shall cause any Person (or any
Affiliate or Associate of such Person) who is a member of the Board of Directors
of the Corporation or such committee to be deemed, for the purposes of this
Agreement, to be a Beneficial Owner of any securities beneficially owned by any
other Person (or any Affiliate or Associate of such Person) who is a member of
the Board of Directors of the Corporation or any committee thereof solely by
reason of such membership of the Board of Directors or any committee thereof or
participation in the decisions or actions thereof on the part of either or both
of such Persons.
1.8. "BUSINESS DAY" means any day other than a Saturday, Sunday or day
on which banking institutions in the State of New York are authorized or obliged
by law or executive order to close.
1.9. "CAPITAL STOCK EQUIVALENTS" has the meaning set forth in Section
11.1.3 hereof.
1.10. "CLOSE OF BUSINESS" on any given date means 5:00 P.M., New York
time, on such date; provided, however, that if such date is not a Business Day
it means 5:00 P.M., New York time, on the next succeeding Business Day.
1.11. "COMMON STOCK" when used with reference to the Corporation means
the common stock, par value $.01 per share, of the Corporation or, in the event
of a subdivision, combination or consolidation with respect to such shares of
Common Stock, the shares of Common Stock resulting from such subdivision,
combination or consolidation. "Common Stock" when used with reference to any
Person other than the Corporation means the capital stock (or equity interest)
with the greatest voting power of such other Person or, if such other Person is
a Subsidiary of another Person, the Person or Persons which ultimately control
such first-mentioned Person.
1.12. "CORPORATION" means International Remote Imaging Systems, Inc., a
Delaware corporation, and also means a Principal Party to the extent provided in
Section 13.1 hereof.
-3-
<PAGE> 7
1.13. "DISTRIBUTION DATE" has the meaning set forth in Section 3.1
hereof.
1.14. "EQUIVALENT PREFERRED STOCK" has the meaning set forth in Section
11.2 hereof.
1.15. "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
1.16. "EXCHANGE RATIO" has the meaning set forth in Section 26.1
hereof.
1.17. "FINAL EXPIRATION DATE" has the meaning set forth in Section 7.1
hereof.
1.18. "INTERESTED STOCKHOLDER" means any Acquiring Person or any
Affiliate or Associate of an Acquiring Person or any other Person in which any
such Acquiring Person, Affiliate or Associate has an interest, or any other
Person acting directly or indirectly on behalf of or in concert with any such
Acquiring Person, Affiliate or Associate.
1.19. "NASDAQ" has the meaning set forth in Section 11.4.1 hereof.
1.20. "PERMITTED OFFER" means a tender or exchange offer which is for
all outstanding shares of Common Stock of the Corporation at a price and on
terms determined, prior to the purchase of shares under such tender or exchange
offer, by at least a majority of the members of the Board of Directors who are
not officers of the Corporation and who are not Acquiring Persons or Affiliates,
Associates, nominees or representatives of an Acquiring Person, to be adequate
(taking into account all factors that such directors deem pertinent including,
without limitation, prices that could reasonably be achieved if the Corporation
or its assets were sold on an orderly basis designed to realize maximum value)
and otherwise in the best interests of the Corporation, its stockholders (other
than the Person or any Affiliate or Associate thereof on whose basis the offer
is being made) and other relevant constituencies, taking into account all
factors that such directors may deem pertinent.
1.21. "PERSON" means any individual, firm, partnership, corporation,
limited liability company, limited liability partnership, trust, association,
joint venture or other entity, and includes any successor (by merger or
otherwise) of such entity.
1.22. "PREFERRED STOCK" means shares of the Corporation's Series C
Preferred Stock, par value $.01 per share, having the relative rights,
preferences and limitations set forth in the Form of the Certificate of
Designation, Preferences and Rights of Series C Preferred Stock attached to this
Agreement as Exhibit A.
1.23. "PRINCIPAL PARTY" has the meaning set forth in Section 13.2
hereof.
1.24. "PRORATION FACTOR" has the meaning set forth in Section 11.1.3
hereof.
1.25. "PURCHASE PRICE" has the meaning set forth in Section 4.1 hereof.
1.26. "RECORD DATE" has the meaning set forth in Recital A hereof.
1.27. "REDEMPTION DATE" has the meaning set forth in Section 7.1
hereof.
-4-
<PAGE> 8
1.28. "REDEMPTION PRICE" has the meaning set forth in Section 23.1.1
hereof.
1.29. "RIGHT CERTIFICATE" has the meaning set forth in Section 3.1
hereof.
1.30. "RIGHTS" has the meaning set forth in Recital A hereof.
1.31. "RIGHTS AGENT" means Continental Stock Transfer & Trust Company,
a New York banking corporation, as Rights Agent hereunder, and, from the time of
its succession, any successor Rights Agent under Section 19 or Section 21
hereof.
1.32. "SECTION 11.1.2 EVENT" has the meaning set forth in Section
11.1.2 hereof.
1.33. "SECTION 13 EVENT" means any event described in clause (x), (y)
or (z) of Section 13.1 hereof.
1.34. "SHARES ACQUISITION DATE" means the first date of public
announcement (which, for purposes of this definition, shall include, without
limitation, a report filed pursuant to the Exchange Act) by the Corporation or
an Acquiring Person that an Acquiring Person has become such or that facts exist
as a result of which there exists an Acquiring Person; provided, that, if such
Person is determined not to have become an Acquiring Person pursuant to
subclause (B)(ii) of Section 1.1 hereof, then no Shares Acquisition Date shall
be deemed to have occurred.
1.35. "SUBSIDIARY" of any Person means any corporation or other Person
of which a majority of the voting power of the voting equity securities or
equity interest is owned, directly or indirectly, by such Person.
1.36. "SUMMARY OF RIGHTS" has the meaning set forth in Section 3.2
hereof.
1.37. "TRADING DAY" has the meaning set forth in Section 11.4.1 hereof.
1.38. "TRIGGERING EVENT" means any Section 11.1.2 Event or any Section
13 Event.
1.39. The term "VOTING SECURITIES" has the meaning set forth in Section
13.1 hereof.
2. APPOINTMENT OF RIGHTS AGENT.
2.1. The Corporation hereby appoints the Rights Agent to act as agent
for the Corporation and the holders of the Rights (who, in accordance with
Section 3 hereof, shall prior to the Distribution Date also be the holders of
shares of Common Stock) in accordance with the terms and conditions hereof, and
the Rights Agent hereby accepts such appointment. The Corporation may from time
to time appoint such co-Rights Agents as it may deem necessary or desirable.
3. ISSUANCE OF RIGHT CERTIFICATES.
3.1. Until the earlier of (i) the Shares Acquisition Date or (ii) the
Close of Business on the tenth (10th) day (or such later date as may be
determined by action of the Corporation's Board of Directors) after the date of
the commencement by any Person (other than the
-5-
<PAGE> 9
Corporation, any Subsidiary of the Corporation, any employee benefit plan of the
Corporation or of any Subsidiary of the Corporation or any Person or entity
organized, appointed or established by the Corporation or any Subsidiary of the
Corporation for or pursuant to the terms of any such plan) of, or after the date
of the first public announcement of the intention of any Person (other than the
Corporation, any Subsidiary of the Corporation, any employee benefit plan of the
Corporation or of any Subsidiary of the Corporation or any Person or entity
organized, appointed or established by the Corporation or any Subsidiary of the
Corporation for or pursuant to the terms of any such plan) to commence (which
intention to commence remains in effect for five (5) Business Days after such
announcement), a tender or exchange offer the consummation of which would result
in any Person becoming an Acquiring Person (including, in the case of both (i)
and (ii), any such date which is after the date of this Agreement and prior to
the issuance of the Rights) (the "DISTRIBUTION DATE"), (x) the Rights will be
evidenced (subject to the provisions of Section 3.2 hereof) by the certificates
for shares of Common Stock registered in the names of the holders thereof (which
certificates shall also be deemed to be Right Certificates) and not by separate
Right Certificates, and (y) the right to receive Right Certificates will be
transferable only in connection with the transfer of the underlying shares of
Common Stock (including a transfer to the Corporation); provided, however, that
if a tender or exchange offer is terminated prior to the occurrence of a
Distribution Date, then no Distribution Date shall occur as a result of such
tender or exchange offer. As soon as practicable after the Distribution Date,
the Corporation will prepare and execute, the Rights Agent will countersign, and
the Corporation will send or cause to be sent by first-class, postage-prepaid
mail, to each record holder of shares of Common Stock as of the Close of
Business on the Distribution Date, at the address of such holder shown on the
records of the Corporation, a Right Certificate, substantially in the form of
Exhibit B hereto (a "RIGHT CERTIFICATE"), evidencing one Right for each share of
Common Stock so held. As of and after the Distribution Date, the Rights will be
evidenced solely by such Right Certificates.
3.2. As promptly as practicable following the Record Date, the
Corporation will send a copy of a Summary of Rights to Purchase Preferred Stock,
in substantially the form of Exhibit C hereto (the "SUMMARY OF RIGHTS"), by
first-class, postage-prepaid mail, to each record holder of shares of Common
Stock as of the Close of Business on the Record Date, at the address of such
holder shown on the records of the Corporation. With respect to certificates for
shares of Common Stock outstanding as of the Record Date, until the Distribution
Date the Rights will be evidenced by such certificates registered in the names
of the holders thereof together with a copy of the Summary of Rights attached
thereto. Until the Distribution Date (or the earlier of the Redemption Date or
the Final Expiration Date), the surrender for transfer of any certificate for
shares of Common Stock outstanding on the Record Date, with or without a copy of
the Summary of Rights attached thereto, shall also constitute the transfer of
the Rights associated with such shares of Common Stock.
3.3. Certificates for shares of Common Stock that become outstanding
(including, without limitation, reacquired shares of Common Stock referred to in
the last sentence of this Section 3.3) after the Record Date but prior to the
earliest of the Distribution Date, the Redemption Date or the Final Expiration
Date, shall be deemed also to be certificates for Rights, and shall bear the
following legend:
-6-
<PAGE> 10
This certificate also evidences and entitles the holder hereof
to certain rights as set forth in a Rights Agreement between
International Remote Imaging Systems, Inc. and Continental
Stock Transfer & Trust Company, a New York banking
corporation, as Rights Agent, dated as of January 21, 2000
(the "Rights Agreement"), the terms of which are hereby
incorporated herein by reference and a copy of which is on
file at the principal executive offices of International
Remote Imaging Systems, Inc. Under certain circumstances, as
set forth in the Rights Agreement, such Rights will be
evidenced by separate certificates and will no longer be
evidenced by this certificate. International Remote Imaging
Systems, Inc. will mail to the holder of this certificate a
copy of the Rights Agreement without charge after receipt of a
written request therefor. Under certain circumstances set
forth in the Rights Agreement, Rights issued to, or held by,
any Person who is, was or becomes an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights
Agreement) and certain related persons, 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
Distribution Date the Rights associated with the shares of Common Stock
represented by such certificates shall be evidenced by such certificates alone,
and the surrender for transfer of any such certificate shall also constitute the
transfer of the Rights associated with the shares of Common Stock represented
thereby. In the event that the Corporation purchases or acquires any shares of
Common Stock after the Record Date but prior to the Distribution Date (or the
earlier of the Redemption Date or the Final Expiration Date), any Rights
associated with such shares of Common Stock shall be deemed cancelled and
retired so that the Corporation shall not be entitled to exercise any Rights
associated with the Common Stock that are no longer outstanding.
4. FORM OF RIGHT CERTIFICATE.
4.1. The Right Certificates (and the forms of election to purchase and
of assignment to be printed on the reverse thereof) shall 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 Corporation 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 market system 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 Right Certificates shall
entitle the holders thereof to purchase such number of one one-thousandths
(1/1000ths) of a share of Preferred Stock as shall be set forth therein at the
price per one one-thousandth (1/1000th) of a share of Preferred Stock set forth
therein (the "PURCHASE PRICE"), but the amount and type of securities
purchasable upon the exercise of each Right and the Purchase Price thereof shall
be subject to adjustment as provided herein.
-7-
<PAGE> 11
4.2. Any Right Certificate issued pursuant to Section 3.1 or Section 22
hereof that represents Rights that are null and void pursuant to Section 7.6 of
this Agreement and any Right Certificate issued pursuant to Section 6 or Section
11 hereof upon transfer, exchange, replacement or adjustment of any other Right
Certificate referred to in this sentence, shall contain (to the extent feasible)
the following legend:
The Rights represented by this Right 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 Right Certificate and the Rights represented hereby are
null and void.
The provisions of Section 7.6 of this Agreement shall be operative whether or
not the foregoing legend is contained on any such Right Certificate.
5. COUNTERSIGNATURE AND REGISTRATION.
5.1. The Right Certificates shall be executed on behalf of the
Corporation by its Chairman of the Board, its Chief Executive Officer, its
President, any of its Vice Presidents, or its Treasurer, either manually or by
facsimile signature, shall have affixed thereto the Corporation's seal or a
facsimile thereof, and shall be attested by the Secretary or an Assistant
Secretary of the Corporation, either manually or by facsimile signature. The
Right Certificates shall be countersigned by the Rights Agent and shall not be
valid for any purpose unless so countersigned. In case any officer of the
Corporation who shall have signed any of the Right Certificates shall cease to
be such officer of the Corporation before countersignature by the Rights Agent
and issuance and delivery by the Corporation, such Right Certificates may
nevertheless be countersigned by the Rights Agent and issued and delivered by
the Corporation with the same force and effect as though the person who signed
such Right Certificates had not ceased to be such officer of the Corporation;
and any Right Certificate may be signed on behalf of the Corporation by any
person who, at the actual date of the execution of such Right Certificate, shall
be a proper officer of the Corporation to sign such Right Certificate, although
at the date of the execution of this Rights Agreement any such person was not
such an officer.
5.2. Following the Distribution Date, the Rights Agent will keep or
cause to be kept, at its principal office or offices designated as the
appropriate place for surrender or transfer of the Right Certificates, books for
registration and transfer of the Right Certificates issued hereunder. Such books
shall show the names and addresses of the respective holders of the Right
Certificates, the number of Rights evidenced on the face of each of the Right
Certificates and the certificate number and the date of each of the Right
Certificates.
6. TRANSFER, SPLIT-UP, COMBINATION AND EXCHANGE OF RIGHT CERTIFICATES;
MUTILATED, DESTROYED, LOST OR STOLEN RIGHT CERTIFICATES.
6.1. Subject to the provisions of Section 4.2, Section 7.6 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 earlier of the Redemption Date or
the Final Expiration Date, any Right Certificate or
-8-
<PAGE> 12
Right Certificates may be transferred, split up, combined or exchanged for
another Right Certificate or Right Certificates, entitling the registered holder
to purchase a like number of one one-thousandth (1/1000th) of a share of
Preferred Stock (or, following a Triggering Event, other securities, as the case
may be) as the Right Certificate or Right 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 Right
Certificate or Right Certificates shall make such request in writing delivered
to the Rights Agent, and shall surrender the Right Certificate or Right
Certificates to be transferred, split up, combined or exchanged at the principal
office or offices of the Rights Agent designated for such purpose. Neither the
Rights Agent nor the Corporation shall be obligated to take any action
whatsoever with respect to the transfer of any such surrendered Right
Certificate until the registered holder shall have completed and signed the
certificate contained in the form of assignment on the reverse side of such
Right Certificate and shall have provided such additional evidence of the
identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or
Associates thereof as the Corporation shall reasonably request. Thereupon the
Rights Agent shall, subject to Section 4.2, Section 7.6 and Section 14 hereof,
countersign and deliver to the Person entitled thereto a Right Certificate or
Right Certificates, as the case may be, as so requested. The Corporation may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer, split up, combination or
exchange of Right Certificates.
6.2. Upon receipt by the Corporation and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or mutilation of
a Right Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to them, and, at the Corporation's request,
reimbursement to the Corporation and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent and cancellation of
the Right Certificate if mutilated, the Corporation will make and deliver a new
Right Certificate of like tenor to the Rights Agent for countersignature and
delivery to the registered holder in lieu of the Right Certificate so lost,
stolen, destroyed or mutilated.
7. EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION DATE OF RIGHTS.
7.1. Subject to Section 7.6 hereof, the registered holder of any Right
Certificate may exercise the Rights evidenced thereby (except as otherwise
provided herein) in whole or in part at any time after the Distribution Date
upon surrender of the Right Certificate, with the form of election to purchase
and the certificate on the reverse side thereof duly executed, to the Rights
Agent at the principal office or offices of the Rights Agent designated for such
purpose, together with payment of the aggregate Purchase Price for the total
number of one one-thousandth (1/1000th) of a share of Preferred Stock (or other
securities, as the case may be) as to which such surrendered Rights are
exercised, at or prior to the earlier of (i) the Close of Business on December
22, 2009 (the "FINAL EXPIRATION DATE"), or (ii) the time at which the Rights are
redeemed as provided in Section 23 hereof (the "REDEMPTION DATE").
7.2. The Purchase Price for each one one-thousandth (1/1000th) of a
share of Preferred Stock pursuant to the exercise of a Right shall initially be
$9.00, shall be subject to adjustment from time to time as provided in the next
sentence and in Sections 11 and 13.1 hereof and shall be payable in accordance
with paragraph 7.3 below. Anything in this Agreement to the contrary
notwithstanding, in the event that at any time after the date of this Agreement
and prior to the
-9-
<PAGE> 13
Distribution Date, the Corporation shall (i) declare or pay any dividend on the
Common Stock payable in Common Stock or (ii) effect a subdivision, combination
or consolidation of the Common Stock (by reclassification or otherwise than by
payment of dividends in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then, in any such case, each share of Common Stock
outstanding following such subdivision, combination or consolidation shall
continue to have a Right associated therewith and the Purchase Price following
any such event shall be proportionately adjusted to equal the result obtained by
multiplying the Purchase Price immediately prior to such event by a fraction the
numerator of which shall be the total number of shares of Common Stock
outstanding immediately prior to the occurrence of the event and the denominator
of which shall be the total number of shares of Common Stock outstanding
immediately following the occurrence of such event. The adjustment provided for
in the preceding sentence shall be made successively whenever such a dividend is
declared or paid or such a subdivision, combination or consolidation is
effected.
7.3. Upon receipt of a Right Certificate representing exercisable
Rights, with the form of election to purchase and the certificate on the reverse
side thereof duly executed, accompanied by payment of the Purchase Price for the
Preferred Stock (or other securities, as the case may be) to be purchased and an
amount equal to any applicable transfer tax required to be paid by the holder of
such Right Certificate in accordance with Section 6 hereof by certified check,
cashier's check or money order payable to the order of the Corporation, the
Rights Agent shall thereupon promptly (i) (A) requisition from any transfer
agent of the Preferred Stock certificates for the number of shares of Preferred
Stock to be purchased, and the Corporation hereby irrevocably authorizes its
transfer agent to comply with all such requests, or (B) if the Corporation, in
its sole discretion, shall have elected to deposit the Preferred Stock issuable
upon exercise of the Rights hereunder into a depositary, requisition from the
depositary agent depositary receipts representing such number of one
one-thousandths (1/1000ths) of a share of Preferred Stock as are to be purchased
(in which case certificates for the Preferred Stock represented by such receipts
shall be deposited by the transfer agent with the depositary agent) and the
Corporation will direct the depositary agent to comply with such requests, (ii)
when appropriate, requisition from the Corporation the amount of cash to be paid
in lieu of issuance 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 Right
Certificate, registered in such name or names as may be designated by such
holder, and (iv) when appropriate, after receipt thereof, deliver such cash to
or upon the order of the registered holder of such Right Certificate. In the
event that the Corporation is obligated to issue other securities (including
shares of Common Stock) of the Corporation pursuant to Section 11.1 hereof, the
Corporation will make all arrangements necessary so that such other securities
are available for distribution by the Rights Agent, if and when appropriate.
7.4. In addition, in the case of an exercise of the Rights by a holder
pursuant to Section 11.1.2, the Rights Agent shall return such Right Certificate
to the registered holder thereof after imprinting, stamping or otherwise
indicating thereon that the Rights represented by such Right Certificate no
longer include the rights provided by Section 11.1.2 of the Rights Agreement and
if less than all the Rights represented by such Right Certificate were so
exercised, the Rights Agent shall indicate on the Right Certificate the number
of Rights represented thereby that continue to include the rights provided by
Section 11.1.2.
-10-
<PAGE> 14
7.5. In case the registered holder of any Right Certificate shall
exercise less than all the Rights evidenced thereby, a new Right Certificate
evidencing Rights equivalent to the Rights remaining unexercised shall be issued
by the Rights Agent to the registered holder of such Right Certificate or to his
duly authorized assigns, subject to the provisions of Section 14 hereof, or the
Rights Agent shall place an appropriate notation on the Right Certificate with
respect to those Rights exercised.
7.6. Notwithstanding anything in this Agreement to the contrary, from
and after the first occurrence of a Section 11.1.2 Event, any Rights
beneficially owned by (i) an Acquiring Person or an Affiliate or Associate of an
Acquiring Person, (ii) a transferee of an Acquiring Person (or of any Affiliate
or Associate thereof) who becomes a transferee after the Acquiring Person
becomes such, or (iii) a transferee of an Acquiring Person (or of any Affiliate
or Associate thereof) 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 (or from
any Affiliate or Associate thereof) to holders of equity interests in such
Acquiring Person or to any Person with whom the Acquiring Person has a
continuing agreement, arrangement or understanding regarding the transferred
Rights or (B) a transfer that the Board of Directors of the Corporation has
determined is part of a plan, arrangement or understanding that has as a primary
purpose or effect the avoidance of this Section 7.6, 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 Corporation shall use all reasonable efforts to
insure that the provisions of this Section 7.6 and Section 4.2 hereof are
complied with, but shall have no liability to any holder of Right 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.
7.7. Notwithstanding anything in this Agreement to the contrary,
neither the Rights Agent nor the Corporation shall be obligated to undertake any
action with respect to a registered holder upon the occurrence of any purported
exercise as set forth in this Section 7 unless such registered holder shall have
(i) completed and signed the certificate contained in the form of election to
purchase set forth on the reverse side of the Right Certificate surrendered for
such exercise, and (ii) provided such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates
thereof as the Corporation shall reasonably request.
8. CANCELLATION AND DESTRUCTION OF RIGHT CERTIFICATES.
8.1. All Right Certificates surrendered for the purpose of exercise,
transfer, split up, combination or exchange shall, if surrendered to the
Corporation or to any of its agents, be delivered to the Rights Agent for
cancellation or in cancelled form, or, if surrendered to the Rights Agent, shall
be cancelled by it, and no Right Certificates shall be issued in lieu thereof
except as expressly permitted by the provisions of this Rights Agreement. The
Corporation shall deliver to the Rights Agent for cancellation and retirement,
and the Rights Agent shall so cancel and retire, any other Right Certificate
purchased or acquired by the Corporation otherwise than upon the exercise
thereof. The Rights Agent shall deliver all cancelled Right Certificates to the
-11-
<PAGE> 15
Corporation, or shall, at the written request of the Corporation, destroy such
cancelled Right Certificates, and in such case shall deliver a certificate of
destruction thereof to the Corporation.
9. RESERVATION AND AVAILABILITY OF PREFERRED STOCK.
9.1. The Corporation covenants and agrees that, at all times prior to
the occurrence of a Section 11.1.2 Event, it will cause to be reserved and kept
available out of its authorized and unissued Preferred Stock, or any authorized
and issued Preferred Stock held in its treasury, the number of shares of
Preferred Stock that will be sufficient to permit the exercise in full of all
outstanding Rights and, after the occurrence of a Section 11.1.2 Event, shall,
to the extent reasonably practicable, so reserve and keep available a sufficient
number of shares of Common Stock (and/or other securities) that may be required
to permit the exercise in full of the Rights pursuant to this Agreement.
9.2. So long as the shares of Preferred Stock (and, after the
occurrence of a Section 11.1.2 Event, shares of Common Stock or any other
securities) issuable upon the exercise of the Rights may be listed on any
national securities exchange, the Corporation shall use its best efforts to
cause, from and after such time as the Rights become exercisable, all shares or
other securities reserved for such issuance to be listed on such exchange upon
official notice of issuance upon such exercise.
9.3. The Corporation covenants and agrees that it will take all such
action as may be necessary to ensure that all shares of Preferred Stock (or
shares of Common Stock and/or other securities, as the case may be) delivered
upon exercise of Rights shall, at the time of delivery of the certificates for
such shares or other securities (subject to payment of the Purchase Price), be
duly and validly authorized and issued and fully paid and non-assessable shares
or securities.
9.4. The Corporation covenants and agrees that it will pay when due and
payable any and all United States federal and state transfer taxes and charges
that may be payable in respect of the issuance or delivery of the Right
Certificates or of any shares of Preferred Stock (or shares of Common Stock
and/or other securities, as the case may be) upon the exercise of Rights. The
Corporation shall not, however, be required to pay any transfer tax that may be
payable in respect of any transfer or delivery of Right Certificates to a person
other than, or the issuance or delivery of certificates or depositary receipts
for the shares of Preferred Stock (or shares of Common Stock and/or other
securities, as the case may be) in a name other than that of, the registered
holder of the Right Certificate evidencing Rights surrendered for exercise, or
to issue or to deliver any certificates or depositary receipts for shares of
Preferred Stock (or shares of Common Stock and/or other securities, as the case
may be) upon the exercise of any Rights, until any such tax shall have been paid
(any such tax being payable by the holder of such Right Certificate at the time
of surrender) or until it has been established to the Corporation's reasonable
satisfaction that no such tax is due.
9.5. The Corporation shall use its best efforts to (i) file, as soon as
practicable following the Shares Acquisition Date, 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
-12-
<PAGE> 16
requirements of the Act and the rules and regulations thereunder) until the date
of the expiration of the period for exercise of the Rights provided by Section
11.1.2. The Corporation will also take such action as may be appropriate under
the blue sky laws of the various states.
10. PREFERRED STOCK RECORD DATE.
10.1. Each person in whose name any certificate for shares of Preferred
Stock (or shares of Common Stock and/or other securities, as the case may be) is
issued upon the exercise of Rights shall for all purposes be deemed to have
become the holder of record of the shares of Preferred Stock (or shares of
Common Stock and/or other securities, as the case may be) represented thereby
on, and such certificate shall be dated, the date upon which the Right
Certificate evidencing such Rights was duly surrendered and payment of the
Purchase Price (and any applicable transfer taxes) was made; provided, however,
that, if the date of such surrender and payment is a date upon which the shares
of Preferred Stock (or shares of Common Stock and/or other securities, as the
case may be) transfer books of the Corporation are closed, such person shall be
deemed to have become the record holder of such shares on, and such certificate
shall be dated, the next succeeding Business Day on which the shares of
Preferred Stock (or shares of Common Stock and/or other securities, as the case
may be) transfer books of the Corporation are open.
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.
11.1. ADJUSTMENT EVENTS.
11.1.1. In the event the Corporation shall at any time after the
date of this Agreement (A) declare a dividend on the Preferred Stock payable in
Preferred Stock, (B) subdivide the outstanding Preferred Stock, (C) combine the
outstanding Preferred Stock into a smaller number of Preferred Stock 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 Corporation is the continuing or surviving corporation),
except as otherwise provided in this Section 11.1 and Section 7.6 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 capital stock issuable on such date, shall be
proportionately adjusted so that the holder of any Right exercised after such
time shall be entitled to receive the aggregate number and kind of shares of
capital stock that, if such Right had been exercised immediately prior to such
date and at a time when the Preferred Stock transfer books of the Corporation
were open, such holder would have owned upon such exercise and been entitled to
receive by virtue of such dividend, subdivision, combination or
reclassification; provided, however, that in no event shall the consideration to
be paid upon the exercise of one Right be less than the aggregate par value of
the shares of capital stock of the Corporation issuable upon exercise of one
Right. If an event occurs that would require an adjustment under both Section
11.1.1 and Section 11.1.2, the adjustment provided for in this Section 11.1.1
shall be in addition to, and shall be made prior to, any adjustment required
pursuant to Section 11.1.2.
-13-
<PAGE> 17
11.1.2. In the event (a "SECTION 11.1.2 EVENT") that any Person,
alone or together with its Affiliates and Associates, shall become an Acquiring
Person, then proper provision shall be made so that each holder of a Right
(except as provided below and in Section 7.6 hereof) shall, for a period of
sixty (60) days (or such longer period as the Board of Directors of the
Corporation may determine at any time prior to or during such period of sixty
(60) days) after the later of the occurrence of any such event or the effective
date of an appropriate registration statement under the Act pursuant to Section
9.5 hereof, have a right to receive, upon exercise thereof at a price equal to
the then current Purchase Price, in accordance with the terms of this Agreement,
such number of shares of Common Stock (or, in the discretion of the Board of
Directors, one one-thousandths (1/1000ths) of a share of Preferred Stock) as
shall equal the result obtained by (x) multiplying the then current Purchase
Price by the then number of one one-thousandth (1/1000th) of a share of
Preferred Stock for which a Right was exercisable immediately prior to the first
occurrence of a Section 11.1.2 Event, and (y) dividing that product by 50% of
the then current per share market price of the Common Stock (determined pursuant
to Section 11.4 hereof) on the date of such first occurrence (such number of
shares being referred to as the "ADJUSTMENT SHARES"); provided, however, that if
the transaction that would otherwise give rise to the foregoing adjustment is
also subject to the provisions of Section 13 hereof, then only the provisions of
Section 13 hereof shall apply and no adjustment shall be made pursuant to this
Section 11.1.2.
11.1.3. In the event that there shall not be sufficient treasury
or authorized but unissued (and unreserved) Common Stock to permit the exercise
in full of the Rights in accordance with Section 11.1.2 and the Rights become so
exercisable (and the Board of Directors of the Corporation has not determined to
make the Rights exercisable solely into fractions of a share of Preferred
Stock), notwithstanding any other provision of this Agreement, to the extent
necessary and permitted by applicable law, each Right shall thereafter represent
the right to receive, upon exercise thereof at the then current Purchase Price
in accordance with the terms of this Agreement, (x) a number of (or fractions
of) shares of Common Stock (up to the maximum number of shares of Common Stock
that may permissibly be issued) and (y) one one-thousandth (1/1000th) of a share
of Preferred Stock or a number of, or fractions of, other equity securities of
the Corporation (or, in the discretion of the Board of Directors of the
Corporation, debt) that the Board of Directors of the Corporation has determined
to have the same aggregate current market value (determined pursuant to Section
11.1.1 and Section 11.1.2 hereof, to the extent applicable) as one share of
Common Stock (such number of, or fractions of, shares of Preferred Stock, debt
or other equity securities or debt of the Corporation being referred to as a
"CAPITAL STOCK EQUIVALENT"), equal in the aggregate to the number of Adjustment
Shares; provided, however, if sufficient shares of Common Stock and/or Capital
Stock Equivalents are unavailable, then the Corporation shall, to the extent
permitted by applicable law, take all such action as may be necessary to
authorize additional shares of Common Stock or Capital Stock Equivalents for
issuance upon exercise of the Rights, including the calling of a meeting of
stockholders; and provided, further, that if the Corporation is unable to cause
sufficient shares of Common Stock and/or Capital Stock Equivalents to be
available for issuance upon exercise in full of the Rights, then each Right
shall thereafter represent the right to receive the Adjusted Number of Shares
upon exercise at the Adjusted Purchase Price (as such terms are hereinafter
defined). As used herein, the term "ADJUSTED NUMBER OF SHARES" shall be equal to
that number of (or fractions of) shares of Common Stock (and/or Capital Stock
Equivalents) equal to the product of (x) the number of Adjustment Shares and (y)
a fraction, the numerator of which is the
-14-
<PAGE> 18
number of shares of Common Stock (and/or Capital Stock Equivalents) available
for issuance upon exercise of the Rights and the denominator of which is the
aggregate number of Adjustment Shares otherwise issuable upon exercise in full
of all Rights (assuming there were a sufficient number of shares of Common Stock
available) (such fraction being referred to as the "PRORATION FACTOR"). The
"ADJUSTED PURCHASE PRICE" shall mean the product of the Purchase Price and the
Proration Factor. The Board of Directors of the Corporation may, but shall not
be required to, establish procedures to allocate the right to receive shares of
Common Stock and Capital Stock Equivalents upon exercise of the Rights among
holders of Rights.
11.2. In case the Corporation 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 (for a period expiring within 45 calendar days
after such record date) to subscribe for or purchase shares of Preferred Stock
(or shares having the same rights, privileges and preferences as the Preferred
Stock ("EQUIVALENT PREFERRED STOCK")) or securities convertible into Preferred
Stock or Equivalent Preferred Stock at a price per share of Preferred Stock or
Equivalent Preferred Stock (or having a conversion price per share, if a
security convertible into shares of Preferred Stock or Equivalent Preferred
Stock) less than the then current per share market price of the Preferred Stock
(as determined pursuant to Section 11.4 hereof) on such record date, the
Purchase Price to be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to such record date
by a fraction, the numerator of which shall be the number of shares of Preferred
Stock outstanding on such record date plus the number of shares of Preferred
Stock that the aggregate offering price of the total number of shares of
Preferred Stock and/or Equivalent Preferred Stock so to be offered (and/or the
aggregate initial conversion price of the convertible securities so to be
offered) would purchase at such current per share 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); provided, however, that in no event shall the
consideration to be paid upon the exercise of one Right be less than the
aggregate par value of the shares of capital stock of the Corporation issuable
upon exercise of one Right. In case such subscription price may be paid in a
consideration part or all of which shall be in a form other than cash, the value
of such consideration shall be determined in good faith by the Board of
Directors of the Corporation, whose determination shall be described in a
statement filed with the Rights Agent and shall be binding on the Rights Agent.
Preferred Stock owned by or held for the account of the Corporation 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 that would then be in effect if
such record date had not been fixed.
11.3. In case the Corporation shall fix a record date for the making of
a distribution to all holders of the Preferred Stock (including any such
distribution made in connection with a consolidation or merger in which the
Corporation is the continuing or surviving corporation) of evidences of
indebtedness or assets (other than a regular quarterly cash dividend or a
dividend payable in Preferred Stock) or subscription rights or warrants
(excluding those referred to in Section 11.2 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,
-15-
<PAGE> 19
the numerator of which shall be the then current per share market price (as
determined pursuant to Section 11.4 hereof) of the Preferred Stock on such
record date, less the fair market value (as determined in good faith by the
Board of Directors of the Corporation, whose determination shall be described in
a statement filed with the Rights Agent and shall be binding on the Rights
Agent) of the portion of the assets or evidences of indebtedness so to be
distributed or of such subscription rights or warrants applicable to one share
of Preferred Stock, and the denominator of which shall be such current per share
market price of the Preferred Stock; provided, however, that in no event shall
the consideration to be paid upon the exercise of one Right be less than the
aggregate par value of the shares of capital stock of the Corporation to be
issued upon exercise of one Right. Such adjustments shall be made successively
whenever such a record date is fixed; and in the event that such distribution is
not so made, the Purchase Price shall again be adjusted to be the Purchase Price
that would then be in effect if such record date had not been fixed.
11.4. COMPUTATION OF "CURRENT PER SHARE MARKET PRICE".
11.4.1. For the purpose of any computation hereunder, the
"CURRENT PER SHARE MARKET PRICE" of any security (a "SECURITY" for the purpose
of this Section 11.4.1) on any date shall be deemed to be the average of the
daily closing prices per share of such Security for the thirty (30) consecutive
Trading Days immediately prior to such date; provided, however, that in the
event that the current per share market price of the Security is determined
during a period following the announcement by the issuer of such Security of (A)
a dividend or distribution on such Security payable in shares of such Security
or securities convertible into such shares, or (B) any subdivision, combination
or reclassification of such Security and prior to the expiration of thirty (30)
Trading Days after the ex-dividend date for such dividend or distribution, or
the record date for such subdivision, combination or reclassification, then, and
in each such case, the current per share market price shall be appropriately
adjusted to reflect the current market price per share equivalent of such
Security. 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 American Stock Exchange or, if the Security
is not listed or admitted to trading on such exchange, as reported in the
principal consolidated transaction reporting system with respect to securities
listed on the principal national securities exchange on which the Security is
listed or admitted to trading or, if the Security is not listed or admitted to
trading on any national securities exchange, the last quoted price or, if not so
quoted, the average of the high bid and low asked prices in the over-the-counter
market, as reported by the National Association of Securities Dealers, Inc.
Automated Quotations System ("NASDAQ") or such other system then in use, or, if
on any such date the Security is 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 Security selected by the Board of Directors
of the Corporation. If on any such date no such market maker is making a market
in the Security, the fair value of the Security on such date as determined in
good faith by the Board of Directors of the Corporation shall be used. The term
"TRADING DAY" shall mean a day on which the principal national securities
exchange on which the Security is listed or admitted to trading is open for the
transaction of business or, if the Security is not listed or admitted to trading
on any national securities exchange, a Business Day.
-16-
<PAGE> 20
11.4.2. For the purpose of any computation hereunder, the
"CURRENT PER SHARE MARKET PRICE" of the Preferred Stock shall be determined in
accordance with the method set forth in Section 11.4.1. If the shares of
Preferred Stock are not publicly traded, the "current per share market price" of
the Preferred Stock shall be conclusively deemed to be the current per share
market price of the Common Stock as determined pursuant to Section 11.4.1
(appropriately adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof), multiplied by 1,000. If neither
the Common Stock nor the Preferred Stock are publicly held or so listed or
traded, "current per share market price" shall mean, with respect to the
Preferred Stock, the fair value per share as determined in good faith by the
Board of Directors of the Corporation, whose determination shall be described in
a statement filed with the Rights Agent and shall be binding on the Rights
Agent.
11.5. Anything herein to the contrary notwithstanding, no adjustment in
the Purchase Price shall be required unless such adjustment would require an
increase or decrease of at least 1% in the Purchase Price; provided, however,
that any adjustments that by reason of this Section 11.5 are not required to be
made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 11 shall be made to the nearest
cent or to the nearest one one-thousandth (1/1000th) of a share of Preferred
Stock or of any other share or security as the case may be. Notwithstanding the
first sentence of this Section 11.5, 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 that mandates such adjustment or (ii) the Final Expiration Date.
11.6. If as a result of an adjustment made pursuant to Section 11.1.2
or Section 13.1 hereof, the holder of any Right thereafter exercised shall
become entitled to receive any shares of capital stock of the Corporation other
than Preferred Stock, thereafter the number of other shares so receivable upon
exercise of any Right shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the Preferred Stock contained in Section 11.1 through 11.3,
inclusive, and the provisions of Sections 7, 9, 10, 13 and 14 with respect to
the Preferred Stock shall apply on like terms to any such other shares.
11.7. All Rights originally issued by the Corporation 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
(1/1000ths) 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.
11.8. The Corporation 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 (1/1000ths) of a share of Preferred Stock
purchasable upon the exercise of a Right. Each of the Rights outstanding after
such adjustment of the number of Rights shall be exercisable for the number of
one one-thousandths (1/1000ths) of a share of Preferred Stock for which a Right
was exercisable immediately prior to such adjustment. Each Right held of record
prior to such adjustment of the number of Rights shall become that number of
Rights (calculated to the nearest one ten-thousandth) obtained by dividing the
Purchase Price in effect immediately prior to adjustment of the Purchase Price
by the Purchase Price in effect immediately after adjustment of the Purchase
Price. The Corporation shall make a public announcement of its
-17-
<PAGE> 21
election to adjust the number of Rights, indicating the record date for the
adjustment, and, if known at the time, the amount of the adjustment to be made.
This record date may be the date on which the Purchase Price is adjusted or any
day thereafter, but, if the Right Certificates have been issued, shall be at
least ten (10) days later than the date of the public announcement. If Right
Certificates have been issued, upon each adjustment of the number of Rights
pursuant to this Section 11.8, the Corporation shall, as promptly as
practicable, cause to be distributed to holders of record of Right Certificates
on such record date Right Certificates evidencing, subject to Section 14 hereof,
the additional Rights to which such holders shall be entitled as a result of
such adjustment, or, at the option of the Corporation, shall cause to be
distributed to such holders of record in substitution and replacement for the
Right Certificates held by such holders prior to the date of adjustment, and
upon surrender thereof, if required by the Corporation, new Right Certificates
evidencing all the Rights to which such holders shall be entitled after such
adjustment. Right Certificates so to be distributed shall be issued, executed
and countersigned in the manner provided for herein and shall be registered in
the names of the holders of record of Right Certificates on the record date
specified in the public announcement.
11.9. Irrespective of any adjustment or change in the Purchase Price or
the number of one one-thousandths (1/1000ths) of a share of Preferred Stock
issuable upon the exercise of the Rights, the Right Certificates theretofore and
thereafter issued may continue to express the Purchase Price and the number of
one one-thousandths (1/1000ths) of a share of Preferred Stock that were
expressed in the initial Right Certificates issued hereunder.
11.10. Before taking any action that would cause an adjustment reducing
the Purchase Price below the then par value, if any, of the number of one
one-thousandths (1/1000ths) of a share of Preferred Stock, share of Common Stock
or other securities issuable upon exercise of the Rights, the Corporation shall
take any corporate action that may, in the opinion of its counsel, be necessary
in order that the Corporation may validly and legally issue such number of fully
paid and non-assessable one one-thousandths (1/1000ths) of a share of Preferred
Stock, share of Common Stock or other securities at such adjusted Purchase
Price.
11.11. 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 Corporation may elect to defer until the occurrence of such
event the issuance to the holder of any Right exercised after such record date
of the Preferred Stock, shares of Common Stock or other securities of the
Corporation, if any, issuable upon such exercise over and above the Preferred
Stock, shares of Common Stock or other securities of the Corporation, if any,
issuable upon such exercise on the basis of the Purchase Price in effect prior
to such adjustment; provided, however, that the Corporation shall deliver to
such holder a due bill or other appropriate instrument evidencing such holder's
right to receive such additional shares upon the occurrence of the event
requiring such adjustment.
11.12. Anything in this Section 11 to the contrary notwithstanding, the
Corporation 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 the Corporation in its sole discretion shall determine to be
advisable in order that any (i) consolidation or subdivision of the Preferred
Stock, (ii) issuance wholly for cash of Preferred Stock at less than the current
market price, (iii) issuance wholly for cash of Preferred Stock or securities
that by their terms are
-18-
<PAGE> 22
convertible into or exchangeable for Preferred Stock, (iv) stock dividends or
(v) issuance of rights, options or warrants referred to in this Section 11,
hereafter made by the Corporation to holders of its Preferred Stock shall not be
taxable to such holders.
11.13. The Corporation 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 Corporation in a transaction that does not violate
Section 11.14 hereof), (ii) merge with or into any other Person (other than a
Subsidiary of the Corporation in a transaction that does not violate Section
11.14 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
Corporation and its Subsidiaries (taken as a whole) to any other Person or
Persons (other than the Corporation and/or any of its Subsidiaries in one or
more transactions each of which does not violate Section 11.14 hereof), if (x)
at the time of or immediately after such consolidation, merger, sale or
transfer, there are any charter or bylaw provisions or any rights, warrants or
other instruments or securities outstanding or agreements in effect or other
actions taken that would materially 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, sale or transfer, the stockholders
of the Person who constitutes, or would constitute, the "Principal Party" for
purposes of Section 13.1 hereof shall have received a distribution of Rights
previously owned by such Person or any of its Affiliates and Associates. The
Corporation shall not consummate any such consolidation, merger, sale or
transfer unless prior thereto the Corporation and such other Person shall have
executed and delivered to the Rights Agent a supplemental agreement evidencing
compliance with this Section 11.13.
11.14. The Corporation covenants and agrees that, after the
Distribution Date, it will not, except as permitted by Section 23 or Section
25.2 hereof, take (or permit any Subsidiary to take) any action the purpose of
which is to, or if at the time such action is taken it is reasonably foreseeable
that the effect of such action is to, materially diminish or otherwise eliminate
the benefits intended to be afforded by the Rights.
11.15. The exercise of Rights under Section 11.1.2 shall only result in
the loss of rights under Section 11.1.2 to the extent so exercised and shall not
otherwise affect the rights represented by the Rights under this Agreement,
including the rights represented by Section 13.
12. CERTIFICATE OF ADJUSTED PURCHASE PRICE OR NUMBER OF SHARES.
12.1. Whenever an adjustment is made as provided in Section 11 or
Section 13 hereof, the Corporation shall promptly (a) prepare a certificate
setting forth such adjustment and a brief statement of the facts accounting for
such adjustment, (b) file with the Rights Agent and with each transfer agent for
the Common Stock and the Preferred Stock a copy of such certificate and (c) mail
a brief summary thereof to each holder of a Right Certificate in accordance with
Section 25.1 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 such adjustment unless and until it shall have received
such certificate.
-19-
<PAGE> 23
13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS OR EARNING POWER.
13.1. In the event that, on or following the Shares Acquisition Date,
directly or indirectly, (x) the Corporation shall consolidate with, or merge
with and into, any Interested Stockholder or, if in such merger or consolidation
all holders of shares of Common Stock are not treated alike, any other Person,
(y) the Corporation shall consolidate with, or merge with, any Interested
Stockholder or, if in such merger or consolidation all holders of shares of
Common Stock are not treated alike, any other Person, and the Corporation shall
be the continuing or surviving corporation of such consolidation or merger
(other than, in a case of any transaction described in (x) or (y), a merger or
consolation that would result in all of the securities generally entitled to
vote in the election of directors of the Corporation ("VOTING SECURITIES")
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into securities of the surviving
entity) all of the voting securities of the Corporation or such voting surviving
entity outstanding immediately after such merger or consolidation and the
holders of such securities not having changed as a result of such merger or
consolidation), or (z) the Corporation 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 Corporation and
its Subsidiaries (taken as a whole) to any Interested Stockholder or
Stockholders or, if in such transaction all holders of Common Stock are not
treated alike, any other Person (other than the Corporation or any Subsidiary of
the Corporation in one or more transactions each of which does not violate
Section 11.14 hereof), then, and in each such case (except as provided in
Section 13.4 hereof), proper provision shall be made so that (i) each holder of
a Right, except as provided in Section 7.6 hereof, shall thereafter have the
right to receive, upon the exercise thereof at a price equal to the then current
Purchase Price, in accordance with the terms of this Agreement and in lieu of
Preferred Stock, such number of freely tradable shares of Common Stock of the
Principal Party, not subject to any liens, encumbrances, rights of first refusal
or other adverse claims, as shall equal the result obtained by (A) multiplying
the then current Purchase Price by the number of one one-thousandths (1/1000ths)
of a share of Preferred Stock for which a Right is then exercisable (without
taking into account any adjustment previously made pursuant to Section 11.1.2)
and dividing that product by (B) 50% of the then current per share market price
of the Common Stock of such Principal Party (determined pursuant to Section 11.4
hereof) 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 Corporation
pursuant to this Agreement; (iii) the term "Corporation" 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; and (iv) such Principal
Party shall take such steps (including, but not limited to, the reservation of a
sufficient number of its shares of 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 the shares of Common Stock thereafter deliverable upon the
exercise of the Rights.
13.2. "PRINCIPAL PARTY" shall mean:
13.2.1. in the case of any transaction described in clause (x) or
(y) of the first sentence of Section 13.1, the Person that is the issuer of any
securities into which shares of
-20-
<PAGE> 24
Common Stock of the Corporation 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 (including, if applicable, the Corporation if it is the
surviving corporation); and
13.2.2. in the case of any transaction described in clause (z) of
the first sentence of Section 13.1, 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 of the foregoing cases, (1) if the Common Stock
of such Person are not at such time and have not been continuously over the
preceding twelve (12) month period registered under Section 12 of the Exchange
Act, and such Person is a direct or indirect Subsidiary of another Person the
shares of Common Stock of which are and have 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 shares of
Common Stock 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 the chains of ownership having
an interest in such joint venture as if such party were a "Subsidiary" of both
or all of such joint venturers and the Principal Parties in each such chain
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.
13.2.3. The Corporation shall not consummate any such
consolidation, merger, sale or transfer unless the Principal Party shall have a
sufficient number of its authorized shares of Common Stock that have not been
issued or reserved for issuance to permit the exercise in full of the Rights in
accordance with this Section 13 and unless prior thereto the Corporation and
such Principal Party shall have executed and delivered to the Rights Agent a
supplemental agreement providing for the terms set forth in Sections 13.1 and
13.2 and further providing that, as soon as practicable after the date of any
consolidation, merger, sale or transfer mentioned in Section 13.1, the Principal
Party at its own expense shall:
13.2.3.1. prepare and file a registration statement under
the Act with respect to the Rights and the securities purchasable upon exercise
of the Rights on an appropriate form, and will use its best efforts to cause
such registration statement to (A) become effective as soon as practicable after
such filing and (B) remain effective (with a prospectus at all times meeting the
requirements of the Act) until the Final Expiration Date;
13.2.3.2. 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
13.2.3.3. deliver to holders of the Rights historical
financial statements for the Principal Party that comply in all respects with
the requirements for registration on Form 10 under the Exchange Act.
-21-
<PAGE> 25
The provisions of this Section 13 shall similarly apply to
successive mergers or consolidations or sales or other transfers. The rights
under this Section 13 shall be in addition to the rights to exercise Rights and
adjustments under Section 11.1.2 and shall survive any exercise thereof.
13.2.4. Notwithstanding anything in this Agreement to the
contrary, the foregoing provisions of this Section 13 shall not be applicable to
a transaction described in clauses (x) and (y) of Section 13.1 if: (i) such
transaction is consummated with a Person or Persons who acquired shares of
Common Stock pursuant to a Permitted Offer (or a wholly owned Subsidiary of any
such Person or Persons); (ii) the price per share of Common Stock offered in
such transaction is not less than the price per share of Common Stock paid to
all holders of shares of Common Stock whose shares were purchased pursuant to
such Permitted Offer; and (iii) the form of consideration offered in such
transaction is the same as the form of consideration paid pursuant to such
Permitted Offer. Upon consummation of any such transaction contemplated by this
Section 13.4, all Rights hereunder shall expire.
14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES.
14.1. The Corporation shall not be required to issue fractions of
Rights or to distribute Right Certificates that evidence fractional Rights. In
lieu of such fractional Rights, there shall be paid to the registered holders of
the Right Certificates with regard to which such fractional Rights would
otherwise be issuable an amount in cash equal to the same fraction of the
current market value of a whole Right. For the purposes of this Section 14.1,
the current market value of a whole Right shall be the closing price of the
Rights for the Trading Day immediately prior to the date on which such
fractional Rights would have been otherwise issuable. The closing price for any
day shall be the last sale price, regular way, or, in case no such sale takes
place on such day, the average of the closing bid 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 American
Stock Exchange or, if the Rights are not listed or admitted to trading on such
exchange, as reported in the principal consolidated transaction reporting system
with respect to securities listed on the principal national securities exchange
on which the Rights are listed or admitted to trading or, if the Rights are not
listed or admitted to trading on any national securities exchange, the last
quoted price or, if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by Nasdaq or such other
system then in use or, if on any such date the Rights are not quoted by any such
organization, the average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Rights selected by the Board of
Directors of the Corporation. 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 Corporation shall be used.
14.2. The Corporation shall not be required to issue fractions of
shares of Preferred Stock (other than fractions that are one one-thousandth
(1/1000th) or integral multiples of one one-thousandth (1/1000th) 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 that are one
one-thousandth (1/1000th) or integral multiples of one one-thousandth (1/1000th)
of a share of Preferred Stock). Fractions of shares of Preferred Stock in
integral multiples of one one-thousandth (1/1000th) of a share of Preferred
Stock may, at the election of the Corporation,
-22-
<PAGE> 26
be evidenced by depositary receipts, pursuant to an appropriate agreement
between the Corporation and a depositary selected by it; provided that such
agreement shall provide that the holders of such depositary receipts shall have
the rights, privileges and preferences to which they are entitled as beneficial
owners of the Preferred Stock represented by such depositary receipts. In lieu
of fractional shares of Preferred Stock that are not one one-thousandth
(1/1000th) or integral multiples of one one-thousandth (1/1000th) of a share of
Preferred Stock, the Corporation shall pay to the registered holders of Right
Certificates at the time such Rights are exercised as herein provided an amount
in cash equal to the same fraction of the current market value of one share of
Preferred Stock. For the purposes of this Section 14.2, the current market value
of a share of Preferred Stock shall be the closing price of a share of Preferred
Stock (as determined pursuant to Section 11.4.2 hereof) for the Trading Day
immediately prior to the date of such exercise.
14.3. Following the occurrence of one of the transactions or events
specified in Section 11 giving rise to the right to receive shares of Common
Stock, Capital Stock Equivalents (other than Preferred Stock) or other
securities upon the exercise of a Right, the Corporation shall not be required
to issue fractions of shares or units of such shares of Common Stock, Capital
Stock Equivalents or other securities upon exercise of the Rights or to
distribute certificates that evidence fractions of such shares of Common Stock,
Capital Stock Equivalents or other securities. In lieu of fractional shares or
units of such shares of Common Stock, Capital Stock Equivalents or other
securities, the Corporation may pay to the registered holders of Right
Certificates at the time such Rights are exercised as herein provided an amount
in cash equal to the same fraction of the current market value of a share or
unit of such shares of Common Stock, Capital Stock Equivalents or other
securities. For purposes of this Section 14.3, the current market value shall be
determined in the manner set forth in Section 11.4 hereof for the Trading Day
immediately prior to the date of such exercise and, if such Capital Stock
Equivalent is not traded, each such Capital Stock Equivalent shall have the
value of one one-thousandth (1/1000th) of a share of Preferred Stock.
14.4. The holder of a Right by the acceptance of the Right expressly
waives such holder's right to receive any fractional Rights or any fractional
share upon exercise of a Right (except as provided above).
15. RIGHTS OF ACTION.
15.1. All rights of action in respect of this Agreement, excepting the
rights of action given to the Rights Agent under Section 18 hereof, are vested
in the respective registered holders of the Right Certificates (and, prior to
the Distribution Date, the registered holders of shares of the Common Stock);
and any registered holder of any Right Certificate (or, prior to the
Distribution Date, of shares of the Common Stock), without the consent of the
Rights Agent or of the holder of any other Right Certificate (or, prior to the
Distribution Date, of shares of the Common Stock), may, in such registered
holder's own behalf and for such registered holder's own benefit, enforce, and
may institute and maintain any suit, action or proceeding against the
Corporation to enforce, or otherwise act in respect of, such registered holder's
right to exercise the Rights evidenced by such Right Certificate in the manner
provided in such Right Certificate and in this Agreement. Without limiting the
foregoing or any remedies available to the holders of Rights, it is specifically
acknowledged that the holders of Rights would not have an adequate
-23-
<PAGE> 27
remedy at law for any breach of this Agreement and will be entitled to specific
performance of the obligations under, and injunctive relief against actual or
threatened violations of the obligations of any Person subject to, this
Agreement. Nothing in this Section 15 is intended to modify or limit the
authority of the Board of Directors under Section 25.3.
16. AGREEMENT OF RIGHT HOLDERS.
Every holder of a Right, by accepting the same, consents and agrees
with the Corporation and the Rights Agent and with every other holder of a Right
that:
16.1. prior to the Distribution Date, the Rights will be transferable
only in connection with the transfer of the associated shares of Common Stock;
16.2. after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if surrendered at
the principal office or offices of the Rights Agent designated for such purpose,
duly endorsed or accompanied by a proper instrument of transfer and with the
appropriate form fully executed;
16.3. subject to Section 6 and Section 7.7 hereof, the Corporation and
the Rights Agent may deem and treat the Person in whose name the Right
Certificate (or, prior to the Distribution Date, the associated Common Stock
certificate) is registered as the absolute owner thereof and of the Rights
evidenced thereby (notwithstanding any notations of ownership or writing on the
Right Certificate or the associated Common Stock certificate made by anyone
other than the Corporation or the Rights Agent) for all purposes whatsoever, and
neither the Corporation nor the Rights Agent, subject to the last sentence of
Section 7.6 hereof, shall be required to be affected by any notice to the
contrary; and
16.4. notwithstanding anything in this Agreement to the contrary,
neither the Corporation nor the Rights Agent shall have any liability to any
holder of a Right or a beneficial interest in 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, that the Corporation must use its best efforts to have any
such order, decree or ruling lifted or otherwise overturned as soon as
practicable.
17. RIGHT CERTIFICATE HOLDER NOT DEEMED A STOCKHOLDER.
No holder, as such, of any Right Certificate shall be entitled to vote,
receive dividends or be deemed for any purpose the holder of shares of the
Preferred Stock or any other securities of the Corporation that may at any time
be issuable on the exercise of the Rights represented thereby, nor shall
anything contained herein or in any Right Certificate be construed to confer
upon the holder of any Right Certificate, as such, any of the rights of a
stockholder of the Corporation or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action, or to receive notice of
meetings or other actions affecting stockholders (except as provided in Section
-24-
<PAGE> 28
24 hereof), or to receive dividends or other distributions or to exercise any
preemptive or subscription rights, or otherwise, until the Right or Rights
evidenced by such Right Certificate shall have been exercised in accordance with
the provisions hereof.
18. CONCERNING THE RIGHTS AGENT.
18.1. The Corporation agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from time to time,
on demand of the Rights Agent, its reasonable expenses and counsel fees and
other disbursements incurred in the administration and execution of this
Agreement and the exercise and performance of its duties hereunder. The
Corporation 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. The indemnity provided
for herein shall survive the expiration of the Rights and the termination of
this Agreement.
18.2. 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 Right Certificate
or certificate for shares of Common Stock or for other securities of the
Corporation, 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.
18.3. Anything in this Agreement to the contrary notwithstanding, in no
event shall the Rights Agent be liable for special, indirect or consequential
loss or damage of any kind whatsoever (including but not limited to lost
profits), even if the Rights Agent has been advised of the likelihood of such
loss or damage and regardless of the form of the action.
19. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT.
19.1. 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 stock transfer or all or substantially all of the corporate trust business
of the Rights Agent or any successor Rights Agent, shall be the successor to the
Rights Agent under this Agreement without the execution or filing of any paper
or any further act on the part of any of the parties hereto, provided 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 Right
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 Right Certificates so countersigned; and in case at that time any
of the Right Certificates shall not have been countersigned, any successor
Rights Agent may countersign such Right Certificates either in the name of the
predecessor or in the name of the successor Rights Agent;
-25-
<PAGE> 29
and in all such cases such Right Certificates shall have the full force provided
in the Right Certificates and in this Agreement.
19.2. In case at any time the name of the Rights Agent shall be changed
and at such time any of the Right Certificates shall have been countersigned but
not delivered, the Rights Agent may adopt the countersignature under its prior
name and deliver Right Certificates so countersigned; and in case at that time
any of the Right Certificates shall not have been countersigned, the Rights
Agent may countersign such Right Certificates either in its prior name or in its
changed name; and in all such cases such Right Certificates shall have the full
force provided in the Right Certificates and in this Agreement.
20. DUTIES OF RIGHTS AGENT.
The Rights Agent undertakes only those duties and obligations imposed
by this Agreement upon the following terms and conditions, by all of which the
Corporation and the holders of Right Certificates, by their acceptance thereof,
shall be bound:
20.1. The Rights Agent may consult with legal counsel (who may be legal
counsel for the Corporation), 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.
20.2. Whenever in the performance of its duties under this Agreement
the Rights Agent shall deem it necessary or desirable that any fact or matter
(including, without limitation, the identity of an Acquiring Person and the
determination of the current market price of any security) be proved or
established by the Corporation prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively proved and
established by a certificate signed by any one of the Chairman of the Board, the
Chief Executive Officer, the President, any Vice President, the Treasurer or the
Secretary of the Corporation 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.
20.3. The Rights Agent shall be liable hereunder only for its own gross
negligence, bad faith or willful misconduct.
20.4. The Rights Agent shall not be liable for, or by reason of, any of
the statements of fact or recitals contained in this Agreement or in the Right
Certificates (except its countersignature on such Right Certificates) or be
required to verify the same, but all such statements and recitals are and shall
be deemed to have been made by the Corporation only.
20.5. The Rights Agent shall not be under any responsibility in respect
of the validity of this Agreement or the execution and delivery hereof (except
the due execution hereof by the Rights Agent) or in respect of the validity or
execution of any Right Certificate (except its countersignature thereof); nor
shall it be responsible for any breach by the Corporation of any covenant or
condition contained in this Agreement or in any Right Certificate; nor shall it
be
-26-
<PAGE> 30
responsible for any change in the exercisability of the Rights (including the
Rights becoming void pursuant to Section 7.6 hereof) or any adjustment required
under the provisions of Section 11 or Section 13 hereof or responsible for the
manner, method or amount of any such adjustment or the ascertaining of the
existence of facts that would require any such adjustment (except with respect
to the exercise of Rights evidenced by Right Certificates after receipt of the
certificate described in Section 12 hereof); 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 Preferred Stock or shares of Common Stock to be
issued pursuant to this Agreement or any Right Certificate or as to whether any
Preferred Stock or shares of Common Stock will, when issued, be validly
authorized and issued, fully paid and non-assessable.
20.6. The Corporation 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.
20.7. The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from any
one of the Chairman of the Board, the Chief Executive Officer, the President,
any Vice President, the Treasurer or the Secretary of the Corporation, and to
apply to such officers for advice or instructions in connection with its duties,
and shall not be liable for any action taken or suffered by it in good faith or
lack of action in accordance with instructions of any such officer or for any
delay in acting while waiting for those instructions. Any application by the
Rights Agent for written instructions from the Corporation may, at the option of
the Rights Agent, set forth in writing any action proposed to be taken or
omitted by the Rights Agent under this Agreement and the date on or after which
such action shall be taken or such omission shall be effective. The Rights Agent
shall not be liable for any action taken by, or omission of, the Rights Agent in
accordance with a proposal included in any such application on or after the date
specified in such application (which date shall not be less than five (5)
Business Days after the date any officer of the Corporation actually receives
such application, unless any such officer shall have consented in writing to an
earlier date) unless, prior to taking any such action (or the effective date in
the case of an omission), the Rights Agent shall have received written
instruction in response to such application specifying the action to be taken or
omitted.
20.8. 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 Corporation or become pecuniarily interested in any
transaction in which the Corporation may be interested, or contract with or lend
money to the Corporation 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 Corporation or for any other
legal entity.
20.9. 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, negligence or misconduct of any such attorneys
or agents or for any loss to the Corporation resulting from any such act,
default, negligence or misconduct, provided reasonable care was exercised in the
selection and continued employment thereof.
-27-
<PAGE> 31
20.10. 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.
20.11. If, with respect to any Right Certificate surrendered to the
Rights Agent for exercise or transfer, the certificate attached to the form of
assignment or form of election to purchase, as the case may be, has not been
completed, the Rights Agent shall not take any further action with respect to
such requested exercise or transfer without first consulting with the
Corporation.
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 Corporation and to each transfer agent of the Common Stock
or Preferred Stock by registered or certified mail, and to the holders of the
Right Certificates by first-class mail. The Corporation may remove the Rights
Agent or any successor Rights Agent upon sixty (60) 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 or Preferred Stock by registered or
certified mail, and to holders of the Right Certificates by first-class mail. If
the Rights Agent shall resign or be removed or shall otherwise become incapable
of acting, the Corporation shall appoint a successor to the Rights Agent. If the
Corporation shall fail to make such appointment within a period of sixty (60)
days after giving notice of such removal or after it has been notified in
writing of such resignation or incapacity by the resigning or incapacitated
Rights Agent or by the holder of a Right Certificate (who shall, with such
notice, submit his Right Certificate for inspection by the Corporation), then
the registered holder of any Right Certificate may apply to any court of
competent jurisdiction for the appointment of a new Rights Agent. Any successor
Rights Agent, whether appointed by the Corporation or by such a court, shall be
a corporation organized and doing business under the laws of the United States
or of any of the States of New York, New Jersey or California (or of any other
state of the United States so long as such corporation is authorized to do
business as a banking institution in any of the States of New York, New Jersey
or California), in good standing, having an office in any of such States, 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 (or the parent corporation of which) has at the time of its
appointment as Rights Agent a combined capital and surplus of at least
$50,000,000. After appointment, the successor Rights Agent shall be vested with
the same powers, rights, duties and responsibilities as if it had been
originally named as Rights Agent without further act or deed; but the
predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and 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 Corporation shall file
notice thereof in writing with the predecessor Rights Agent and each transfer
agent of the Common Stock or Preferred Stock, and mail a notice thereof in
writing to the registered holders of the Right Certificates. Failure to give any
notice provided for in this Section 21, however, or any defect therein, shall
not affect the legality or validity of the
-28-
<PAGE> 32
resignation or removal of the Rights Agent or the appointment of the successor
Rights Agent, as the case may be.
22. ISSUANCE OF NEW RIGHT CERTIFICATES.
22.1. Notwithstanding any of the provisions of this Agreement or of the
Rights to the contrary, the Corporation may, at its option, issue new Right
Certificates evidencing Rights in such form as may be approved by its Board of
Directors to reflect any adjustment or change in the Purchase Price and the
number or kind or class of shares or other securities or property purchasable
under the Right Certificates made in accordance with the provisions of this
Agreement.
22.2. In connection with the issuance or sale of Common Stock following
the Distribution Date and prior to the earlier of the Redemption Date and the
Final Expiration Date, the Corporation (a) shall with respect to shares of
Common Stock so issued or sold pursuant to the exercise of stock options or
under any employee plan or arrangement, or upon the exercise, conversion or
exchange of securities, notes or debentures issued by the Corporation, and (b)
may in any other case, if deemed necessary or appropriate by the Board of
Directors of the Corporation, issue Right Certificates representing the
appropriate number of Rights in connection with such issuance or sale; provided,
however, that (i) the Corporation shall not be obligated to issue any such Right
Certificates if, and to the extent that, the Corporation shall be advised by
counsel that such issuance would create a significant risk of material adverse
tax consequences to the Corporation or the Person to whom such Right Certificate
would be issued, and (ii) no Right Certificate shall be issued if, and to the
extent that, appropriate adjustment shall otherwise have been made in lieu of
the issuance thereof.
23. REDEMPTION AND TERMINATION.
23.1. REDEMPTION.
23.1.1. The Board of Directors of the Corporation may, at its
option, redeem all but not less than all of the then outstanding Rights at a
redemption price of $.001 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"), at any time prior to the earlier of the
occurrence of a Section 11.1.2 Event or the Final Expiration Date. The
Corporation may, at its option, pay the Redemption Price either in shares of
Common Stock (based on the current per share market price of the Common Stock at
the time of redemption) or cash; provided that if the Corporation elects to pay
the Redemption Price in shares of Common Stock, the Corporation shall not be
required to issue any fractional shares of Common Stock and the number of shares
of Common Stock issuable to each holder of Rights shall be rounded down to the
next whole share.
23.1.2. In addition, the Board of Directors of the Corporation
may, at its option, at any time following the occurrence of a Section 11.1.2
Event and the expiration of any period during which the holder of Rights may
exercise the Rights under Section 11.1.2 but prior to any Section 13 Event,
redeem all but not less than all of the then outstanding Rights at the
Redemption Price (x) in connection with any merger, consolidation or sale or
other transfer (in
-29-
<PAGE> 33
one transaction or in a series of related transactions) of assets or earning
power aggregating 50% or more of the earning power of the Corporation and its
Subsidiaries (taken as a whole) in which all holders of shares of Common Stock
are treated alike and not involving (other than as a holder of shares of Common
Stock being treated like all other such holders) an Interested Stockholder or
(y) (i) if and for so long as the Acquiring Person is not thereafter the
Beneficial Owner of 20% or more of the Common Stock, and (ii) at the time of
redemption no other Persons are Acquiring Persons.
23.2. In the case of a redemption permitted under Section 23.1.1,
immediately upon the date for redemption set forth in (or determined in the
manner specified in) a resolution of the Board of Directors of the Corporation
ordering the redemption of the Rights, evidence of which shall have been filed
with the Rights Agent, and without any further action and without any notice,
the right to exercise the Rights will terminate and the only right thereafter of
the holders of Rights shall be to receive the Redemption Price for each Right so
held. In the case of a redemption permitted only under Section 23.1.2, evidence
of which shall have been filed with the Rights Agent, the right to exercise the
Rights will terminate and represent only the right to receive the Redemption
Price upon the later of ten (10) Business Days following the giving of such
notice or the expiration of any period during which the Rights may be exercised
under Section 11.1.2. The Corporation shall promptly give public notice of any
such redemption; provided, however, that the failure to give, or any defect in,
any such notice shall not affect the validity of such redemption. Within ten
(10) days after such date for redemption set forth in a resolution of the Board
of Directors of the Corporation ordering the redemption of the Rights, the
Corporation shall mail a notice of redemption to all the holders of the then
outstanding Rights at their addresses as they appear upon the registry books of
the Rights Agent or, prior to the Distribution Date, on the registry books of
the transfer agent for the Common Stock. Any notice which is mailed in the
manner herein provided shall be deemed given, whether or not the holder receives
the notice. Each such notice of redemption will state the method by which the
payment of the Redemption Price will be made. Neither the Corporation nor any of
its Affiliates or Associates may redeem, acquire or purchase for value any
Rights at any time in any manner other than as specifically set forth in this
Section 23 and other than in connection with the purchase of shares of Common
Stock prior to the Distribution Date.
23.3. The Corporation may, at its option, discharge all of its
obligations with respect to the Rights by (i) issuing a press release announcing
the manner of redemption of the Rights in accordance with this Agreement and
(ii) mailing payment of the Redemption Price to the registered holders of the
Rights at their addresses as they appear on the registry books of the Rights
Agent or, prior to the Distribution Date, on the registry books of the Transfer
Agent of the Common Stock, and upon such action, all outstanding Rights and
Right Certificates shall be null and void without any further action by the
Corporation.
24. NOTICE OF CERTAIN EVENTS.
24.1. In case the Corporation shall propose (i) to pay any dividend
payable in stock of any class to the holders of its Preferred Stock or to make
any other distribution to the holders of its Preferred Stock (other than a
regular quarterly cash dividend), (ii) to offer to the holders of its Preferred
Stock rights or warrants to subscribe for or to purchase any additional
Preferred Stock or shares of stock of any class or any other securities, rights
or options, (iii) to effect any
-30-
<PAGE> 34
reclassification of its Preferred Stock (other than a reclassification involving
only the subdivision of outstanding Preferred Stock), (iv) to effect any
consolidation or merger into or with any other Person (other than a Subsidiary
of the Corporation in a transaction which does not violate Section 11.14
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 or more
transactions, of 50% or more of the assets or earning power of the Corporation
and its Subsidiaries (taken as a whole) to any other Person or Persons (other
than the Corporation and/or any of its Subsidiaries in one or more transactions
each of which does not violate Section 11.14 hereof), or (v) to effect the
liquidation, dissolution or winding up of the Corporation, then, in each such
case, the Corporation shall give to each holder of a Right Certificate, in
accordance with Section 25 hereof, a notice of such proposed action to the
extent feasible and file a certificate with the Rights Agent to that effect,
which shall specify the record date for the purposes of such stock dividend or
distribution of rights or warrants, or the date on which such reclassification,
consolidation, merger, sale, transfer, liquidation, dissolution or winding up is
to take place and the date of participation therein by the holders of the
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
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
Preferred Stock, whichever shall be the earlier.
24.2. In case of a Section 11.1.2 Event, then (i) the Corporation shall
as soon as practicable thereafter give to each holder of a Right Certificate, in
accordance with Section 25.1.3 hereof, a notice of the occurrence of such event,
which notice shall describe such event and the consequences of such event to
holders of Rights under Section 11.1.2 hereof, and (ii) all references in the
preceding Section 24.1 to Preferred Stock shall be deemed thereafter to refer
also to shares of Common Stock and/or, if appropriate, other securities of the
Corporation.
25. MISCELLANEOUS.
25.1. NOTICES.
25.1.1. Notices or demands authorized by this Agreement to be
given or made by the Rights Agent or by the holder of any Right Certificate to
or on the Corporation 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:
International Remote Imaging Systems, Inc.
9162 Eton Avenue
Chatsworth, California 91311
Attention: President
25.1.2. Subject to the provisions of Section 21 hereof, any
notice or demand authorized by this Agreement to be given or made by the
Corporation or by the holder of any Right Certificate to or on the Rights Agent
shall be sufficiently given or made if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing with the
Corporation) as follows:
-31-
<PAGE> 35
Continental Stock Transfer & Trust Company
2 Broadway
New York, NY 10004
Attention: Compliance Department
25.1.3. Notices or demands authorized by this Agreement to be
given or made by the Corporation or the Rights Agent to the holder of any Right
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 Corporation.
25.2. SUPPLEMENTS AND AMENDMENTS. The Corporation may from time to time
supplement or amend any provision of this Agreement without the approval of any
holders of Rights in order to cure any ambiguity, to correct or supplement any
provision herein, or to make any other provision with respect to the Rights
which the Corporation may deem necessary or desirable, any such supplement or
amendment to be evidenced by a writing signed by the Corporation and the Rights
Agent; provided, however, that from and after any Shares Acquisition Date this
Agreement shall not be amended in any manner which will adversely affect the
interests of the holders of Rights. Upon the delivery of a certificate from an
appropriate officer of the Corporation which states that the proposed supplement
or amendment is in compliance with the terms of this Section 25.2, the Rights
Agent shall execute such supplement or amendment, provided that such supplement
or amendment does not adversely affect the rights or obligations of the Rights
Agent under Section 18 or Section 20 of this Agreement. Prior to the
Distribution Date, the interests of the holders of Rights shall be deemed
coincident with the interests of the holders of shares of Common Stock.
25.3. DETERMINATION AND ACTIONS BY THE BOARD OF DIRECTORS, ETC. The
Board of Directors of the Corporation shall have the exclusive power and
authority to administer this Agreement and to exercise all rights and powers
specifically granted to the Board, or the Corporation, 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, without limitation, a determination to redeem or not
redeem the Rights or to amend the Agreement and whether any proposed amendment
adversely affects the interests of the holders of Right Certificates). For all
purposes of this Agreement, any calculation of the number of shares of Common
Stock or other securities outstanding at any particular time, including for
purposes of determining the particular percentage of such outstanding shares of
Common Stock or any other securities of which any Person is the Beneficial
Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i)
of the General Rules and Regulations under the Exchange Act as in effect on the
date of 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 Corporation, the Rights Agent,
the holders of the Right Certificates and all other parties, and (y) not subject
the Board to any liability to the holders of the Right Certificates. Nothing in
Section 15 hereof is intended to modify or limit this Section 25.3.
-32-
<PAGE> 36
25.4. SUCCESSORS. All the covenants and provisions of this Agreement by
or for the benefit of the Corporation or the Rights Agent shall bind and inure
to the benefit of their respective successors and assigns hereunder.
25.5. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Corporation, the
Rights Agent and the registered holders of the Right Certificates (and, prior to
the Distribution Date, the shares of Common Stock) any legal or equitable right,
remedy or claim under this Agreement. This Agreement shall be for the sole and
exclusive benefit of the Corporation, the Rights Agent and the registered
holders of the Right Certificates (and, prior to the Distribution Date, the
shares of Common Stock).
25.6. 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.
25.7. GOVERNING LAW. This Agreement, each Right and each Right
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of Delaware and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to contracts to
be made and performed entirely within such State.
25.8. 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.
25.9. 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.
26. EXCHANGE.
26.1. Notwithstanding any other provision hereof, the Board of
Directors of the Corporation may, at its option, at any time after any Person
becomes an Acquiring Person, exchange all or part of the then outstanding and
exercisable Rights (which shall not include Rights that have become void
pursuant to the provisions of Section 7.6 hereof) for shares of Common Stock of
the Corporation at an exchange ratio determined by dividing the then-applicable
exercise price of the Rights determined under Section 7.2 by the "current per
share market price" as defined in Section 11.4.1 (such exchange ratio being
hereinafter referred to as the "EXCHANGE RATIO"). Notwithstanding the foregoing,
the Board of Directors shall not be empowered to effect such exchange at any
time after any Person (other than the Corporation, any Subsidiary of the
Corporation, any employee benefit plan of the Corporation or any such
Subsidiary, any Person or entity holding shares of Common Stock for or pursuant
to the terms of any such plan or any trustee, administrator or fiduciary of such
a plan), together with all Affiliates and Associates of such Person, becomes the
Beneficial Owner of 50% or more of the Common Stock then outstanding.
-33-
<PAGE> 37
26.2. Immediately upon the action of the Board of Directors of the
Corporation ordering the exchange of any Rights pursuant to Section 26.1 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
(other than a holder of Rights that have become void pursuant to the provisions
of Section 7.6 hereof) 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 Corporation 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 Corporation 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 the 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 7.6) held by each holder of Rights.
26.3. In the event that there shall not be sufficient shares of Common
Stock issued but not outstanding or authorized but unissued to permit any
exchange of Rights as contemplated in accordance with this Section 26, the
Corporation 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.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
-34-
<PAGE> 38
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and attested, all as of the date and year first above written.
International Remote Imaging Systems, Inc.
Attest:
By: /s/ DANIEL E. HORACEK By: /s/ MARTIN S. McDERMUT
----------------------------- ---------------------------------------
Name: Daniel E. Horacek Name: Martin S. McDermut
Title: Controller and Title: Vice President, Finance and
Assistant Secretary Administration, Chief Financial
Officer and Secretary
Continental Stock Transfer & Trust Company
Attest:
By: /s/ THOMAS JENNING By: /s/ WILLIAM F. SEEGRABER
------------------------------- ---------------------------------
Name: Thomas Jenning Name: William F. Seegraber
Title: Assistant Secretary Title: Vice President
-35-
<PAGE> 39
EXHIBIT A
Form of Certificate of Designation, Preferences and
Rights of Series C Preferred Stock
(see attached)
<PAGE> 1
EXHIBIT 99.2
FORM OF
CERTIFICATE OF DESIGNATION, PREFERENCES AND
RIGHTS OF SERIES C PREFERRED STOCK
OF
INTERNATIONAL REMOTE IMAGING SYSTEMS, INC.
(PURSUANT TO SECTION 151
OF THE DELAWARE GENERAL CORPORATION LAW)
I, Martin S. McDermut, Secretary of International Remote Imaging
Systems, Inc. (the "CORPORATION"), a corporation organized and existing under
the General Corporation Law of the State of Delaware, in accordance with the
provisions of Section 103 thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors of
the Corporation by the Certificate of Incorporation of the Corporation, the said
Board of Directors on December 22, 1999, adopted the following resolutions
creating a series of the Corporation's Preferred Stock designated as Series C
Preferred Stock.
RESOLVED, that pursuant to the authority granted to and vested in the
Board of Directors of the Corporation in accordance with the provisions of the
Certificate of Incorporation of the Corporation, the Board of Directors hereby
creates a series of Series C Preferred Stock, with a par value of $0.01 per
share, of the Corporation and hereby states the designation and number of
shares, and fixes the relative rights, preferences and limitations thereof as
follows (the following provisions being intended to operate in addition to any
other provisions of said Certificate of Incorporation applicable to any series
of Preferred Stock):
SERIES C PREFERRED STOCK
1. DESIGNATION, PAR VALUE AND AMOUNT. The shares of such series shall
be designated as "Series C Preferred Stock" (hereinafter referred to as "Series
C Preferred Stock"), the shares of such series shall be with par value of $0.01
per share, and the number of shares constituting such series shall be 1,000,000;
provided, however, that, if more than a total of 1,000,000 shares of Series C
Preferred Stock shall be issuable upon the exercise of Rights (the "RIGHTS")
issued pursuant to the Rights Agreement, dated as of January 21, 2000, between
the Corporation and Continental Stock Transfer & Trust Company, as Rights Agent
(as amended from time to time, the "RIGHTS AGREEMENT"), the Board of Directors
of the Corporation shall direct by resolution or resolutions that a certificate
be properly executed, acknowledged and filed providing for the total number of
shares of Series C Preferred Stock authorized to be issued to be increased (to
the extent that the Certificate of Incorporation then permits) to the largest
number of whole shares (rounded up to the nearest whole number) issuable upon
exercise of the Rights.
<PAGE> 2
2. DIVIDENDS AND DISTRIBUTIONS.
2.1. Subject to the prior and superior rights of the holders of any
shares of any series of Preferred Stock ranking prior and superior to the shares
of Series C Preferred Stock with respect to dividends, the holders of shares of
Series C Preferred Stock shall be entitled to receive, when, as and if declared
by the Board of Directors out of assets legally available for the purpose,
quarterly dividends payable in cash on the first business 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
set forth in Section 6.1, 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, par value $.01 per share, of the Corporation (the
"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.
2.2. The Corporation shall declare a dividend or distribution on the
Series C Preferred Stock as provided in Section 2.1 above immediately after it
declares a dividend or distribution on the Common Stock (other than a dividend
payable in shares of Common Stock); provided that, in the event no dividend or
distribution shall have been declared on the Common Stock during the period
between any Quarterly Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $1.00 per share on the Series C Preferred
Stock shall nevertheless be payable on such subsequent Quarterly Dividend
Payment Date.
2.3. 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 of Series C Preferred Stock, unless
the date of issue of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such shares shall
begin to accrue from the date of issue of such shares, or unless the date of
issue is a Quarterly Dividend Payment Date or is a date after the record date
for the determination of holders of shares of Series 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 30 days prior to the date
fixed for the payment thereof.
2
<PAGE> 3
3. VOTING RIGHTS. The holders of shares of Series C Preferred Stock
shall have the following voting rights:
3.1. Except as provided in Section 3.3 and 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.
3.2. Except as otherwise provided herein or by law, the holders of
shares of Series C Preferred Stock and the holders of shares of Common Stock
shall vote together as one class on all matters submitted to a vote of
stockholders of the Corporation.
3.3. The following additional provisions shall apply with respect to
the voting of shares of Series C Preferred Stock.
3.3.1. If, on the date used to determine stockholders of record
for any meeting of stockholders for the election of directors, a default in
preference dividends (as defined in Section 3.3.5 below) on the Series C
Preferred Stock shall exist, the holders of the Series C Preferred Stock shall
have the right, voting as a class as described in Section 3.3.2 below, to elect
two directors (in addition to the directors elected by holders of Common Stock
of the Corporation). Such right may be exercised (a) at any meeting of
stockholders for the election of directors or (b) at a meeting of the holders of
shares of Voting Preferred Stock (as hereinafter defined), called for the
purpose in accordance with the Bylaws of the Corporation, until all such
cumulative dividends (referred to above) shall have been paid in full or until
non-cumulative dividends have been paid regularly for at least one year.
3.3.2. The right of the holders of Series C Preferred Stock to
elect two directors, as described above, shall be exercised as a class
concurrently with the rights of holders of any other series of Preferred Stock
upon which voting rights to elect such directors have been conferred and are
then exercisable. The Series C Preferred Stock and any additional series of
Preferred Stock that the Corporation may issue and that may provide for the
right to vote with the foregoing series of Preferred Stock are collectively
referred to herein as "VOTING PREFERRED STOCK."
3.3.3. Each director elected by the holders of shares of Voting
Preferred Stock shall be referred to herein as a "PREFERRED DIRECTOR." A
Preferred Director shall continue to serve as such for a term of one year,
except that upon any termination of the right of all holders of Voting Preferred
Stock to vote as a class for Preferred Directors, the term of office of
Preferred Directors then serving shall terminate. Any Preferred Director may be
removed by, and shall not be removed except by, the vote of the holders of
record of a majority of the outstanding shares of Voting Preferred Stock then
entitled to vote for the election of directors, present (in person or by proxy)
and voting together as a single class (a) at a meeting of the
3
<PAGE> 4
stockholders, or (b) at a meeting of the holders of shares of such Voting
Preferred Stock, called for the purpose in accordance with the Bylaws of the
Corporation.
3.3.4. So long as a default in any preference dividends of the
Series C Preferred Stock shall exist or the holders of any other series of
Voting Preferred Stock shall be entitled to elect Preferred Directors, (a) any
vacancy in the office of a Preferred Director may be filled (except as provided
in the following clause (b)) by an instrument in writing signed by the remaining
Preferred Director and filed with the Corporation and (b) in the case of the
removal of any Preferred Director, the vacancy may be filled by the vote or
written consent of the holders of a majority of the outstanding shares of Voting
Preferred Stock then entitled to vote for the election of directors, present (in
person or by proxy) and voting together as a single class, at such time as the
removal shall be effected. Each director appointed as aforesaid by the remaining
Preferred Director shall be deemed, for all purposes hereof, to be a Preferred
Director. Whenever (x) no default in preference dividends on the Series C
Preferred Stock shall exist and (y) the holders of other series of Voting
Preferred Stock shall no longer be entitled to elect such Preferred Directors,
then the number of directors constituting the Board of Directors of the
Corporation shall be reduced by two.
3.3.5. For purposes hereof, a "DEFAULT IN PREFERENCE DIVIDENDS" on
the Series C Preferred Stock shall be deemed to have occurred whenever the
amount of cumulative and unpaid dividends on the Series C Preferred Stock shall
be equivalent to six full quarterly dividends or more (whether or not
consecutive), and, having so occurred, such default shall be deemed to exist
thereafter until, but only until, all cumulative dividends on all shares of the
Series C Preferred Stock then outstanding shall have been paid through the last
Quarterly Dividend Payment Date or until, but only until, non-cumulative
dividends have been paid regularly for at least one year.
3.4. Except as set forth herein (or as otherwise required by applicable
law), holders of Series C Preferred Stock shall have no general or special
voting rights and their consent shall not be required for taking any corporate
action.
4. CERTAIN RESTRICTIONS.
4.1. Whenever quarterly dividends or other dividends or distributions
payable on the Series C Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series C Preferred Stock outstanding shall have
been paid in full, the Corporation shall not:
4.1.1. 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;
4
<PAGE> 5
4.1.2. 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;
4.1.3. redeem or purchase or otherwise acquire for consideration
(except as provided in Section 4.1.4 below) shares of any stock ranking 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;
4.1.4. redeem or purchase or otherwise acquire for consideration
any shares of Series C Preferred Stock, or 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 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.
4.2. 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 Section 4.1, purchase or
otherwise acquire such shares at such time and in such manner.
5. 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 Certificate
of Incorporation, in any other Certificate of Amendment creating a series of
Preferred Stock or as otherwise required by law.
6. LIQUIDATION, DISSOLUTION OR WINDING UP.
6.1. Subject to the prior and superior rights of holders of any shares
of any series of Preferred Stock ranking prior and superior to the shares of
Series C Preferred Stock with respect to rights upon liquidation, dissolution or
winding up (voluntary or otherwise), no distribution shall be made to the
holders of shares of stock ranking junior (either as to dividends
5
<PAGE> 6
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 per share an amount equal to the greater of 1,000 times $9.00 or
1,000 times the payment made per share of Common Stock, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment (the "SERIES C LIQUIDATION PREFERENCE"). Following
the payment of the full amount of the Series C Liquidation Preference, no
additional distributions shall be made to the holders of shares of Series C
Preferred Stock unless, prior thereto, the holders of shares of Common Stock
shall have received an amount per share (the "CAPITAL ADJUSTMENT") equal to the
quotient obtained by dividing (i) the Series C Liquidation Preference by (ii)
1,000 (as appropriately adjusted as set forth in Section 6.3 to reflect such
events as stock splits, stock dividends and recapitalizations with respect to
the Common Stock) (such number in clause (ii) being hereafter referred to as the
"ADJUSTMENT NUMBER"). Following the payment of the full amount of the Series C
Liquidation Preference and the Capital Adjustment in respect of all outstanding
shares of Series C Preferred Stock and Common Stock, respectively, holders of
Series C Preferred Stock and holders of Common Stock shall receive their ratable
and proportionate share of the remaining assets to be distributed in the ratio
of the Adjustment Number to 1 with respect to such Preferred Stock and Common
Stock, on a per share basis, respectively.
6.2. In the event, however, that there are not sufficient assets
available to permit payment in full of the Series C Liquidation Preference and
the liquidation preferences of all other series of preferred stock, if any,
which rank on a parity with the Series C Preferred Stock, then such remaining
assets shall be distributed ratably to the holders of Series C Preferred Stock
and the holders of such parity shares in proportion to their respective
liquidation preferences. In the event, however, that there are not sufficient
assets available to permit payment in full of the Capital Adjustment, then such
remaining assets shall be distributed ratably to the holders of Common Stock.
6.3. In the event the Corporation shall (i) declare any dividend on
Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into a smaller
number of shares, then in each such case the Adjustment Number in effect
immediately prior to such event shall be adjusted by multiplying such Adjustment
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.
7. CONSOLIDATION, MERGER, ETC. In case the Corporation shall enter into
any consolidation, merger, combination or other transaction in which the shares
of Common Stock are exchanged for or changed into other stock or securities,
cash and/or any other property, then in any such case the shares of Series C
Preferred Stock shall at the same time be similarly exchanged or changed in an
amount per share equal to the Adjustment Number (as appropriately adjusted as
set forth in Section 6.3 to reflect such events as stock splits, stock dividends
and recapitalizations with respect to the Common Stock) times the aggregate
amount of stock,
6
<PAGE> 7
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.
8. NO REDEMPTION. The shares of Series C Preferred Stock shall not be
redeemable.
9. RANKING. The Series C Preferred Stock shall rank junior to all other
series of the Corporation's Preferred Stock as to the payment of dividends and
the distribution of assets, unless the terms of any such other series shall
provide otherwise.
10. AMENDMENT. The Certificate of Incorporation of the Corporation
shall not be further amended in any manner that 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 a
majority or more of the outstanding shares of Series C Preferred Stock, voting
separately as a class.
11. FRACTIONAL SHARES. Series C Preferred Stock may be issued in
fractions of a share which shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and have the benefit of all other rights of holders
of Series C Preferred Stock.
RESOLVED, that the proper officers of the Corporation be, and each of
them hereby is, authorized to execute a Certificate of Designation with respect
to the Series C Preferred Stock pursuant to Section 151 of the General
Corporation Law of the State of Delaware and to take all appropriate action to
cause such Certificate to become effective, including, but not limited to, the
filing and recording of such Certificate with and/or by the Secretary of State
of the State of Delaware.
IN WITNESS WHEREOF, I have executed and subscribed to this Certificate
and do affirm the foregoing as true under penalty of perjury this 21st day of
January, 2000.
/s/ MARTIN S. McDERMUT
---------------------------------
Martin S. McDermut
Secretary
7
<PAGE> 8
EXHIBIT B
Form of Right Certificate
(see attached)
<PAGE> 9
FORM OF RIGHT CERTIFICATE
Certificate No. R- _____ Rights
NOT EXERCISABLE AFTER DECEMBER 22, 2009 OR EARLIER IF REDEEMED
BY THE CORPORATION. THE RIGHTS ARE SUBJECT TO REDEMPTION AT
$.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.
RIGHT CERTIFICATE
INTERNATIONAL REMOTE IMAGING SYSTEMS, 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 21, 2000 (the "RIGHTS AGREEMENT"), between
International Remote Imaging Systems, Inc. (the "CORPORATION"), and Continental
Stock Transfer & Trust Company (the "RIGHTS AGENT") to purchase from the
Corporation at any time after the Distribution Date (as such term is defined in
the Rights Agreement) and prior to 5:00 P.M., California time, on December 22,
2009, unless the Rights evidenced hereby shall have been previously redeemed by
the Corporation, at the principal office or offices of the Rights Agent
designated for such purpose, or at the office of its successor as Rights Agent,
one one-thousandth (1/1000th) of a fully paid non-assessable share of Series C
Preferred Stock, $0.01 par value per share (the "PREFERRED STOCK"), of the
Corporation, at a purchase price of $9.00 per one one-thousandth (1/1000th) of a
share of Preferred Stock (the "PURCHASE PRICE"), upon presentation and surrender
of this Right Certificate with the Form of Election to Purchase duly executed.
The number of Rights evidenced by this Right Certificate (and the number of one
one-thousandths (1/1000ths) of a share of Preferred Stock that may be purchased
upon exercise hereof) set forth above, and the Purchase Price set forth above,
are the number and Purchase Price as of December 22, 1999, based on the
Preferred Stock as approved on such date.
<PAGE> 10
Upon the occurrence of a Section 11.1.2 Event (as such term is defined
in the Rights Agreement), if the Rights evidenced by this Right 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 any
such Acquiring Person, Associate or Affiliate who becomes a transferee prior to
or concurrently with the Acquiring Person becoming such, 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 11.1.2 Event.
As provided in the Rights Agreement, the Purchase Price and the number
of one one-thousandths (1/1000ths) of a share of Preferred Stock or other
securities that may be purchased upon the exercise of the Rights evidenced by
this Right Certificate are subject to modification and adjustment upon the
happening of certain events, including Triggering Events (as such term is
defined in the Rights Agreement).
This Right Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Corporation and the holders of the Right 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 executive offices of
the Corporation and the principal office or offices of the Rights Agent.
This Right Certificate, with or without other Right Certificates, upon
surrender at the principal office of the Rights Agent, may be exchanged for
another Right Certificate or Right Certificates of like tenor and date
evidencing Rights entitling the holder to purchase a like aggregate number of
shares of Preferred Stock or other securities as the Rights evidenced by the
Right Certificate or Right Certificates surrendered shall have entitled such
holder to purchase. If this Right Certificate shall be exercised in part, the
holder shall be entitled to receive upon surrender hereof another Right
Certificate or Right Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced
by this Certificate may be redeemed by the Corporation at a redemption price of
$.01 per Right (subject to adjustment as provided in the Rights Agreement)
payable in cash.
No fractional shares of Preferred Stock will be issued upon the
exercise of any Right or Rights evidenced hereby (other than fractions that are
one one-thousandth (1/1000th) or integral multiples of one one-thousandth
(1/1000th) of a share of Preferred Stock, which may, at the election of the
Corporation, 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 Right Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of shares of the
Preferred Stock or of any other securities
-2-
<PAGE> 11
of the Corporation that 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 Corporation 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 other distributions or to exercise any preemptive or
subscription rights, or otherwise, until the Right or Rights evidenced by this
Right Certificate shall have been exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the
Corporation and its corporate seal. Dated: ___________________, _______.
[SEAL]
ATTEST: International Remote Imaging
Systems, Inc.
By: _______________________________ By: ______________________________
Name: _____________________________ Name: _____________________________
Title: ____________________________ Title: ____________________________
Countersigned:
Continental Stock Transfer & Trust Company,
a New York banking corporation
By: _______________________________
Authorized Officer
-3-
<PAGE> 12
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires
to transfer the Right Certificate.)
FOR VALUE RECEIVED _____________________________________________________________
hereby sells, assigns and transfers unto _______________________________________
________________________________________________________________________________
(Please print name and address of transferee)
________________________________________________________________________________
this Right Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint
_______________________ Attorney-in-Fact, to transfer the within Right
Certificate on the books of the within-named Corporation, with full power of
substitution.
The undersigned hereby certifies that (1) the Rights evidenced by this
Right Certificate are not being sold, assigned or transferred by or on behalf of
a Person who is or was an Acquiring Person or an Affiliate or Associate thereof
(as such terms are defined in the Rights Agreement), (2) this Right Certificate
is not being sold, assigned or transferred to or on behalf of any such Acquiring
Person, Affiliate or Associate, and (3) after due inquiry and to the best
knowledge of the undersigned, the undersigned did not acquire the Rights
evidenced by this Right Certificate from any Person who is or was an Acquiring
Person or an Affiliate or Associate thereof (as such terms are defined in the
Rights Agreement).
Dated: ____________________________ _____________________________________
Signature
Signature Guaranteed:
___________________________________
<PAGE> 13
Form of Reverse Side of Right Certificate -- continued
FORM OF ELECTION TO PURCHASE
(To be executed by the registered holder if such holder desires
to exercise Rights represented by the Right Certificate)
To the Rights Agent:
The undersigned hereby irrevocably elects to exercise ______________
Rights represented by this Right Certificate to purchase the shares of Preferred
Stock, shares of Common Stock or other securities issuable upon the exercise of
such Rights and requests that certificates for such shares of Preferred Stock,
shares of Common Stock or other securities be issued in the name of:
Please insert social security number
or other identifying number: ___________________________________________________
________________________________________________________________________________
(Please print name and address)
________________________________________________________________________________
If such number of Rights shall not be all the Rights evidenced by this
Right Certificate, a new Right Certificate for the balance remaining of such
Rights shall be registered in the name of and delivered to:
Please insert social security number
or other identifying number: ___________________________________________________
________________________________________________________________________________
(Please print name and address)
________________________________________________________________________________
The undersigned hereby certifies that (1) the Rights evidenced by this
Right Certificate are not being exercised by or on behalf of a Person who is or
was an Acquiring Person or an Affiliate or Associate thereof (as such terms are
defined in the Rights Agreement), (2) this Right Certificate is not being sold,
assigned or transferred by or on behalf of any such Acquiring Person, Affiliate
or Associate, and (3) after due inquiry and to the best knowledge of the
undersigned, the undersigned did not acquire the Rights evidenced by this Right
Certificate from any Person who is or was an Acquiring Person or an Affiliate or
Associate thereof (as such terms are defined in the Rights Agreement).
Dated: ____________________________ _____________________________________
Signature
Signature Guaranteed:
___________________________________
<PAGE> 14
Notice
Signatures must be guaranteed by an "Eligible Guarantor Institution" as
defined in Rule 17Ad-15 (or any successor rule or regulation) promulgated
pursuant to the Securities Exchange Act of 1934, as amended (this term means, in
general, banks, stock brokers, savings and loan associations, and credit unions,
in each case with membership in an approved signature guarantee medallion
program).
The signature on the foregoing Forms of Assignment and Election and
certificates must conform to the name as written upon the face of this Right
Certificate in every particular, without alteration or enlargement or any change
whatsoever.
In the event the certification set forth above in the Form of
Assignment or the Form of Election to Purchase, as the case may be, is not
completed, the Corporation and the Rights Agent will deem the Beneficial Owner
of the Rights evidenced by this Right Certificate to be an Acquiring Person or
an Affiliate or Associate thereof (as such terms are defined in the Rights
Agreement) and such Assignment or Election to Purchase will not be honored.
-2-
<PAGE> 15
EXHIBIT C
Summary of Rights to Purchase Series C Preferred Shares
(see attached)
<PAGE> 16
SUMMARY OF RIGHTS TO PURCHASE
SERIES C PREFERRED SHARES
On December 22, 1999, the Board of Directors (the "BOARD") of
International Remote Imaging Systems, Inc. ("IRIS") declared a dividend of one
right (a "RIGHT") for each outstanding share of IRIS Common Stock, par value
$0.01 per share (the "COMMON SHARES"). The dividend is payable to the
stockholders of record on February 7, 2000 (the "RECORD DATE"), and with respect
to Common Shares issued thereafter until the Distribution Date (as defined
below) and, in certain circumstances, with respect to Common Shares issued after
the Distribution Date. Except as set forth below, each Right, when it becomes
exercisable, entitles the registered holder to purchase from IRIS one
one-thousandth (1/1000th) (subject to adjustment) of a share of IRIS Series C
Preferred Stock, $0.01 par value per share (the "PREFERRED SHARES"), at a price
of $9.00 per one one-thousandth (1/1000th) of a Preferred Share (the "PURCHASE
PRICE"), subject to adjustment. The description and terms of the Rights are set
forth in a Rights Agreement (the "RIGHTS AGREEMENT") between IRIS and
Continental Stock Transfer & Trust Company, as Rights Agent (the "RIGHTS
Agent"), dated as of January 21, 2000.
Initially, the Rights will be attached to all certificates representing
Common Shares then outstanding, and no separate Right Certificates will be
distributed. The Rights will separate from the Common Shares upon the earliest
to occur of (i) a person or group of affiliated or associated persons having
acquired, without the prior approval of IRIS' Board, beneficial ownership of 20%
or more of the outstanding Common Shares (except pursuant to a Permitted Offer,
as hereinafter defined); or (ii) 10 days (or such later date as the Board may
determine) following the commencement of, or announcement of an intention to
make, a tender offer or exchange offer the consummation of which would result in
a person or group of affiliated or associated persons becoming an Acquiring
Person (as hereinafter defined) (the "DISTRIBUTION DATE"). A person or group
whose acquisitions of Common Shares cause a Distribution Date pursuant to clause
(i) above is an "ACQUIRING PERSON," with certain exceptions as set forth in the
Rights Agreement. The date that it is first publicly announced that a person or
group has become an Acquiring Person is the "SHARES ACQUISITION DATE."
The Rights Agreement provides that, until the Distribution Date, the
Rights will be transferred with and only with the associated Common Shares.
Until the Distribution Date (or earlier redemption or expiration of the Rights),
new Common Share certificates issued after the Record Date upon transfer or new
issuance of Common Shares will contain a notation incorporating the Rights
Agreement by reference. Until the Distribution Date (or earlier redemption or
expiration of the Rights), the surrender for transfer of any certificates for
Common Shares outstanding as of the Record Date, even without such notation or a
copy of this Summary of Rights being attached thereto, will also constitute the
transfer of the Rights associated with the Common Shares represented by such
certificate. As soon as practicable following the Distribution Date, separate
certificates evidencing the Rights ("RIGHT CERTIFICATES") will be mailed to the
holders of record of the Common Shares as of the Close of Business (as defined
in the Rights Agreement) on the Distribution Date (and to each initial record
holder of certain Common Shares issued after the Distribution Date), and such
separate Right Certificates alone will evidence the Rights.
<PAGE> 17
The Rights are not exercisable until the Distribution Date and will
expire at the close of business on December 22, 2009, unless earlier redeemed by
IRIS as described below.
In the event that any person becomes an Acquiring Person (except
pursuant to a tender or exchange offer which is for all outstanding Common
Shares at a price and on terms which a majority of certain members of the Board
determines to be adequate and in the best interests of IRIS, its stockholders
and other relevant constituencies, other than such Acquiring Person, its
affiliates and associates (a "PERMITTED OFFER"), each holder of a Right will
thereafter have the right (the "FLIP-IN RIGHT") to receive upon exercise the
number of Common Shares (or, in certain circumstances, of one one-thousandths
(1/1000ths) of a Preferred Share or other securities of IRIS) having an
aggregate per share market price (immediately prior to such triggering event, as
determined in accordance with the Rights Agreement) equal to two times the
Purchase Price. Notwithstanding the foregoing, following the occurrence of the
event described above, all Rights that are, or (under certain circumstances
specified in the Rights Agreement) were, beneficially owned by any Acquiring
Person or any affiliate or associate thereof will be null and void. The Board
has the option, at any time after any person becomes an Acquiring Person, to
exchange all or part of the then-exercisable Rights (excluding those that have
become void, as described in the immediately preceding sentence) for Common
Shares, at an exchange ratio determined by dividing the then-applicable Purchase
Price by the then-current market price per share of Common Shares. However, this
option generally terminates if any person becomes the beneficial owner of 50% or
more of the Common Shares.
In the event that, at any time following the Shares Acquisition Date,
(i) IRIS is acquired in a merger or other business combination transaction in
which the holders of all of the outstanding Common Shares immediately prior to
the consummation of the transaction are not the holders of all of the surviving
corporation's voting power, or (ii) more than 50% of IRIS' assets or earning
power is sold or transferred, in either case with or to (x) an Acquiring Person
or any affiliate or associate thereof or (y) any other person in which such
Acquiring Person, affiliate or associate has an interest or any person acting on
behalf of or in concert with such Acquiring Person, affiliate or associate, or
(z) if, in such transaction, all holders of Common Shares are not treated alike,
any other person, then each holder of a Right (except Rights which previously
have been voided as set forth above) shall thereafter have the right (the
"FLIP-OVER RIGHT") to receive, upon exercise, common shares of the acquiring
company having a value equal to two times the Purchase Price. The holder of a
Right will continue to have the Flip-Over Right whether or not such holder
exercises or surrenders the Flip-In Right.
The Purchase Price payable, and the number of Preferred Shares, Common
Shares or other securities issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Preferred
Shares, (ii) upon the grant to holders of Preferred Shares of certain rights or
warrants to subscribe for or purchase Preferred Shares at a price, or securities
convertible into Preferred Shares with a conversion price, less than the then
current per share market price of the Preferred Shares, or (iii) upon the
distribution to holders of Preferred Shares of evidences of indebtedness or
assets (excluding regular quarterly cash dividends) or of subscription rights or
warrants (other than those referred to above).
-2-
<PAGE> 18
The number of outstanding Rights and the number of the one-thousandths
(1/1000ths) of a Preferred Share issuable upon exercise of each Right are also
subject to adjustment in the event of a stock split of the Common Shares or a
stock dividend on the Common Shares payable in Common Shares or subdivisions,
consolidations or combinations of the Common Shares occurring, in any such case,
prior to the Distribution Date.
Preferred Shares purchasable upon exercise of the Rights will not be
redeemable. Each Preferred Share will be entitled to a minimum preferential
quarterly dividend payment of $1.00 per share but, if greater, will be entitled
to an aggregate dividend per share of 1,000 times the dividend declared per
share of Common Share. In the event of liquidation, the holders of Preferred
Shares will be entitled to a minimum preferential liquidation payment per share
in an amount equal to the greater of 1,000 times $9.00 or 1,000 times the
payment made per Common Share plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment (the "SERIES C LIQUIDATION PREFERENCE"); thereafter, and after the
holders of Common Shares receive a liquidation payment of an amount equal to the
quotient obtained by dividing the Series C Liquidation Preference by 1,000
(subject to certain adjustments for stock splits, stock dividends and
recapitalizations with respect to the Common Shares), the holders of Preferred
Shares and the holders of the Common Shares will share the remaining assets in
the ratio of 1,000 (as adjusted) to 1 for each Preferred Share and Common Shares
so held, respectively. Finally, in the event of any merger, consolidation or
other transaction in which Common Shares are exchanged, each Preferred Share
will be entitled to receive 1,000 times the amount received per Common Share.
These rights are protected by customary antidilution provisions. If there is a
default on any dividends owed to the holders of the Preferred Shares on the date
used to determine stockholders of record for any meeting of stockholders for the
election of directors, then the holders of Preferred Shares shall have the
right, voting as a class, to elect two directors (in addition to the directors
elected by holders of Common Shares) (each a "PREFERRED DIRECTOR"). A Preferred
Director will continue to serve as such for a term of one year or, if sooner,
when all cumulative dividends owed to the holders of Preferred Shares have been
fully paid or until non-cumulative dividends have been paid regularly for at
least one year.
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional Preferred Shares will be issued (other than
fractions which are one one-thousandth (1/1000th) or integral multiples of one
one-thousandth (1/1000th) of a Preferred Share, which may, at the election of
IRIS, be evidenced by depositary receipts) and in lieu thereof, an adjustment in
cash will be made based on the then-current per share market price of the
Preferred Shares on the last trading day prior to the date of exercise.
At any time prior to the earlier to occur of (i) a person becoming an
Acquiring Person or (ii) the expiration of the Rights, and under certain other
circumstances, IRIS may redeem the Rights in whole, but not in part, at a price
(payable in cash or, at IRIS' election, in Common Shares) of $.001 per Right
(the "REDEMPTION PRICE"), which redemption shall be effective upon the action of
the Board. Additionally, following the Shares Acquisition Date, IRIS may redeem
the then outstanding Rights in whole, but not in part, at the Redemption Price,
provided that such redemption is in connection with a merger or other business
combination transaction or series of
-3-
<PAGE> 19
transactions involving IRIS in which all holders of Common Shares are treated
alike but not involving an Acquiring Person or its affiliates or associates.
All of the provisions of the Rights Agreement may be amended by the
Board of IRIS prior to the Distribution Date. After the Distribution Date, the
provisions of the Rights Agreement may be amended by the Board in order to cure
any ambiguity, defect or inconsistency, to make changes that do not adversely
affect the interests of holders of Rights (excluding the interests of any
Acquiring Person), or, subject to certain limitations, to shorten or lengthen
any time period under the Rights Agreement.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of IRIS, including, without limitation, the right to
vote or to receive dividends. While the distribution of the Rights will not be
taxable to stockholders of IRIS, stockholders may, depending upon the
circumstances, recognize taxable income should the Rights become exercisable or
upon the occurrence of certain events thereafter.
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-K. A
COPY OF THE RIGHTS AGREEMENT IS AVAILABLE FREE OF CHARGE FROM IRIS. 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.
-4-
<PAGE> 1
EXHIBIT 99.3
[IRIS LOGO] NEWS RELEASE
CONTACTS: DR. JOHN A. O'MALLEY, CHAIRMAN, PRESIDENT
AND CHIEF EXECUTIVE OFFICER
818-709-1244 OR
ROBERT FROST, ECOM CONSULTANTS
212-391-9475 FOR IMMEDIATE RELEASE
===============================================================================
IRIS ADOPTS SHAREHOLDER RIGHTS PLAN
CHATSWORTH, CA, January 25, 2000 -- International Remote Imaging
Systems, Inc. ("IRIS"), a manufacturer and marketer of laboratory-oriented
medical devices, announced today that it has adopted a Shareholder Rights Plan.
The plan is designed to protect the value of shareholders' investments
in IRIS stock by assuring that IRIS shareholders receive fair value and equal
treatment in the event of an effort to acquire control of the IRIS without
paying full value to all shareholders. The shareholder rights plan will help
prevent partial tender offers and other disruptive tactics to gain control of
IRIS without providing fair value to all shareholders.
Dr. John A. O'Malley, Chairman, President and CEO of IRIS, said, "We
believe that adopting this plan is a prudent, proactive step to protect our
shareholders in the event of any attempt to acquire IRIS for less than its full
value. In making this decision, we considered a number of factors, including our
current stock price, our five-year plan and industry conditions. While IRIS is
not aware of any hostile attempt to gain control or acquire IRIS, our
shareholder rights plan would improve the Board's ability to negotiate a fair
deal for the shareholders if one surfaced." Dr. O'Malley also noted that many
other public companies have adopted similar plans.
Under the terms of the plan, each shareholder of record at the close of
business on February 7, 2000 will receive rights to purchase shares of a new
Series C Preferred Stock. Each share of Series C Preferred Stock would be the
economic equivalent of 1,000 shares of IRIS Common Stock. The Company currently
has approximately 9.3 million outstanding shares of common stock.
The rights will be exercisable only if a person or group acquires 20%
or more of the IRIS Common Stock, or announces a tender offer for 20% or more of
the IRIS Common Stock, without board approval. If the rights are triggered, all
stockholders (except the hostile party) will be entitled to purchase shares of
the Series C Preferred Stock at a price based on a substantial discount from the
market price of the IRIS Common Stock.
The Board of Directors may terminate the plan at any time or redeem the
rights prior to their becoming exercisable.
The Company plans to file a full copy of the Shareholder Rights Plan
with the SEC later this week and mail a detailed summary of the plan to all
shareholders shortly after the February 7 record date.
IRIS designs, develops, manufactures and markets IVD imaging systems
based on its patented and proprietary AIM technology for automating microscopic
procedures performed in hospital and reference clinical laboratories and
genetics laboratories, worldwide. Its major product lines are The Yellow IRIS(R)
family of urinalysis workstations, the PowerGene(TM) line of cytogenetic
analyzers and the StatSpin line of centrifugal specimen preparation devices.
