SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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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): April 6, 1999
EMS TECHNOLOGIES, INC.
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(Exact name of registrant as specified in charter)
Georgia 0-6072 58-1035424
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(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification
incorporation) No.)
660 Engineering Drive, Norcross, Georgia 30092
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(Address of principal executive offices)
Registrant's telephone number, including area code 770-263-9200
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(Former name or former address, if changed since last report)
<PAGE>
Item 5. Other Events
The Board of Directors of EMS Technologies, Inc. (the
"Company") has adopted a Stockholder Rights Plan, effective April
6, 1999 (the "Plan"), and has declared a dividend distribution of
one Right for each outstanding share of the Company's common
stock, $.10 per share par value ("Common Stock"), to stockholders
of record at the close of business on April 16, 1999. The Plan
replaces a similar plan adopted in 1989 that expired on April 6,
1999.
Initially, the Rights are deemed to be evidenced by Common
Stock certificates, and no separate Rights Certificates will be
distributed. Transfer of Common Stock certificates will also
transfer the Rights associated with the Common Stock. Upon the
occurrence of an event specified in the Plan (such as the public
announcement by a person (an "Acquiring Person") of an
acquisition of 20% of the Company's outstanding common stock
without the consent of the Company's Disinterested Directors)
(the "Distribution Date"), the Rights will separate from the
Common Stock, and Rights Certificates will be issued to Rights
holders. At that time, each Right will become exercisable for
one share of Common Stock at the Purchase Price (initially
$45.00), subject to adjustment from time to time to account for
events such as stock dividends or upon the occurrence of certain
triggering events as summarized herein and described in the Plan.
The Rights are not exercisable until the Distribution Date and
expire on August 6, 2009, unless earlier redeemed. All Common
Stock issued prior to the Distribution Date will be issued with
Rights attendant.
Until the Distribution Date, the Board of Directors may
amend the Plan or adopt a new rights plan in substitution for the
Plan and all outstanding Rights. After the Distribution Date,
the Disinterested Directors by majority vote may amend the Plan
to a more limited extent, or may substitute a new rights plan for
the Plan and all outstanding Rights, if the change, supplement or
substitution does not adversely affect the interests of rights
holders (other than those of an Acquiring Person or an affiliate
or associate thereof). A "Disinterested Director" is any
director who has no control relationship or affiliation with any
Acquiring Person or associate or affiliate thereof.
If certain triggering events described in the Plan occur,
the Rights will become exercisable at the Purchase Price for
shares of Common Stock having a value equal to two times the
Purchase Price, or at the election of the Disinterested Directors
may be exercised for one-half that number of shares of Common
Stock without payment of the Purchase Price. Rights beneficially
owned by Acquiring Persons will become null and void, and may not
be exercised. Triggering events include the acquisition of 20%
of the outstanding Common Stock without the consent of the
Disinterested Directors; the acquisition of 2% of the outstanding
Common Stock without such consent following the acquisition of
20% with such consent; or the engagement by a consented-to 20%
stock holders in certain self-dealing transactions. If the
Company is purchased or merged into another company, the Rights
may become exercisable for comparable securities of the surviving
entity instead of Common Stock of the Company.
At any time before their expiration, the outstanding Rights
may be redeemed by vote of the Disinterested Directors at a price
of $0.01 per Right. If the Disinterested Directors elect to
redeem the Rights, the outstanding Rights will no longer be
exercisable, and their holders will be entitled only to have
their Rights redeemed.
Copies of the Rights Plan are available free of charge from
the Company. This summary description of the Rights does not
purport to be complete and is qualified in its entirety by
reference to the Rights Plan, which is attached hereto as an
exhibit.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits.
(c) The following document is filed as an exhibit to this Report:
4.1 EMS Technologies, Inc. Stockholder Rights Plan dated as of
April 6, 1999.
SIGNATURE
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 thereunto duly authorized.
EMS TECHNOLOGIES, INC.
Date: April 6, 1999 By:
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William S. Jacobs
Vice President and
Secretary
Exhibit 4.1
EMS TECHNOLOGIES, INC.
Stockholder Rights Plan
Dated as of April 6, 1999
Table of Contents
Section Page
1 Certain Definitions 1
2 Authority to Appoint Rights Agent 6
3 Issue of Rights Certificates 6
4 Form of Rights Certificates 8
5 Registration 9
6 Transfer, Split Up, Combination and
Exchange of Rights Certificates;
Mutilated, Destroyed, Lost or
Stolen Rights Certificates 10
7 Exercise of Rights; Purchase
Price; Expiration Date of Rights 11
8 Cancellation and Destruction of
Rights Certificates 13
9 Reservation and Availability of
Capital Stock 13
10 Record Date for Securities Issued
Upon Exercise 15
11 Adjustment of Purchase Price,
Number and Kind of Shares or
Number of Rights 16
12 Certificate of Adjusted Purchase
Price or Number of Shares 26
13 Consolidation, Merger or Sale
or Transfer of Assets or Earning
Power 26
14 Fractional Rights and Fractional
Shares 29
15 Rights of Action 30
16 Agreement of Rights Holders 30
Section Page
17 Rights Certificate Holder Not Deemed
a Stockholder 31
18 Indemnification of Corporate Officers 32
19 Issuance of New Rights Certificates 32
20 Redemption and Termination 33
21 Notice of Certain Events 34
22 Notices 35
23 Supplements and Amendment; Substituted
Plan 36
24 Successors 37
25 Determinations and Actions
by the Board of Directors, etc. 37
26 Establishment of Fund for Disinterested 38
Directors
27 Benefits of this Plan 38
28 Severability 38
29 Governing Law 39
30 Descriptive Headings 39
Exhibit A -- Form of Rights Certificate
Exhibit B -- Form of Summary of Rights
STOCKHOLDER RIGHTS PLAN
Section 1. Certain Definitions. For purposes of this
Plan, the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person or group
of Persons acting together, directly or indirectly, through any
contract, arrangement, understanding, relationship or otherwise,
who or which, together with all Affiliates and Associates of such
Person(s), shall be the Beneficial Owner of 20% or more of the
shares of Common Stock then outstanding, but shall not include
(i) the Company, (ii) any Subsidiary of the Company, or (iii) any
employee benefit plan of the Company or any Subsidiary of the
Company, or any Person or entity organized, appointed or
established by the Company acting in accordance with and for or
pursuant to the terms of any such plan.
Notwithstanding the foregoing,"Acquiring Person" shall not
include any such Person who has reported or is required to report
such ownership (but less than 25%) on Schedule 13G under the
Exchange Act (or any comparable or successor report or on
Schedule 13D under the Exchange Act (or any comparable or
successor report) which Schedule 13D does not state any intention
to or reserve the right to control or influence the management or
policies of the Company or engage in any of the actions specified
in Item 4 of such Schedule (other than the disposition of the
Common Stock) and within 10 Business Days of being requested by
the Company to advise it regarding the same, certifies to the
Company that such Person acquired Common Stock equal to or
exceeding 20% inadvertently or without knowledge of the terms of
the Rights and who, together with all Affiliates and Associates,
thereafter does not acquire additional Common Stock while the
Beneficial Owner of 20% or more of the Common Stock then
outstanding; provided, however, that if the Person requested to
so certify fails to do so within 10 Business Days, then such
Person shall become an Acquiring Person immediately after such 10
Business Day Period. Notwithstanding the foregoing, no Person
shall become an "Acquiring Person" solely as the result of an
acquisition of Common Stock by the Company which, by reducing the
number of shares outstanding, increases the proportionate number
of shares beneficially owned by a Person to 20% or more of the
Common Stock of the Company then outstanding as determined above;
provided, however, that if a Person becomes the Beneficial Owner
of 20% or more of the Common Stock of the Company then
outstanding (as determined above) solely by reason of purchases
of Common Stock by the Company and shall, after becoming aware of
such purchases by the Company or of the resulting decrease in the
number of outstanding shares of the Common Stock, become the
Beneficial Owner of any additional Common Stock by any means
whatsoever, then such Person shall be deemed to be an "Acquiring
Person".
(b) "Act" shall mean the Securities Act of 1933.
as amended.
(c) "Adjustment Shares" shall have the meaning set
forth in Section ll(a)(ii) hereof.
(d) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act
of 1934, as amended and in effect on the date of this Plan (the
"Exchange Act").
(e) A Person shall be deemed the "Beneficial Owner" of,
and shall be deemed to "beneficially own," any securities:
(i) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to acquire (whether
such right is exercisable immediately or only after the passage of time)
pursuant to any agreement, arrangement or understanding (whether or not in
writing) or upon the exercise of conversion rights, exchange rights, rights,
warrants or options, or otherwise; provided, however, that a Person shall not
be deemed the "Beneficial Owner" of, or to "beneficially own," (A) securities
tendered pursuant to a tender or exchange offer made by such Person or any
of such Person's Affiliates or Associates until such tendered securities are
accepted for purchase or exchange, (B) securities issuable upon exercise of
Rights at any time prior to the occurrence of a Triggering Event, or
(C) securities issuable upon exercise of Rights from and after the occurrence
of a Triggering Event which Rights were acquired by such Person or any of
such Person's Affiliates or Associates prior to the Distribution Date or
pursuant to Section 3(a) or Section 19 hereof (the "Original Rights") or
pursuant to Section 11(a)(I) hereof in connection with an adjustment made
with respect to any Original Rights;
(ii) which such Person or any of such person's Affiliates or
Associates, directly or indirectly, has the right to vote or dispose of
or has "beneficial ownership" of (as determined pursuant to Rule 13d-3 of
the General Rules and Regulations under the Exchange Act), including
pursuant to any agreement, arrangement or understanding, whether or not
in writing; provided, however, that a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially own," any security under this
subparagraph (ii) as a result of an agreement, arrangement or understanding
to vote such security if such agreement, arrangement or understanding: (A)
arises solely from a revocable proxy given in response to a public proxy or
consent solicitation made pursuant to, and in accordance with, the applicable
provisions of the General Rules and Regulations under the Exchange Act, and
(B) is not also then reportable by such Person on Schedule 13D under the
Exchange Act (or any comparable or successor report): or
(iii) which are beneficially owned, directly or indirectly, by any
other Person (or any Affiliate or Associate thereof) with which such Person
(or any of such Person's Affiliates or Associates) has any agreement,
arrangement or understanding (whether or not in writing), for the purpose
of acquiring, holding, voting (except pursuant to a revocable proxy as
described in the provision to subparagraph (ii) of this paragraph
(e)) or disposing of any voting securities of the Company;
provided, however, that nothing in this paragraph (e) shall cause
a Person engaged in business as an underwriter of securities to
be the "Beneficial Owner" of, or to "beneficially own," any
securities acquired through such Person's participation in good faith
in a firm commitment underwriting until the expiration of forty days
after the date of such acquisition.
(f) "Board" shall mean the Board of Directors of the
Company.
(g) "Business Day" shall mean any day other than a
Saturday, Sunday or a day on which banking institutions in the
State of Georgia are authorized or obligated by law or executive
order to close.
(h) "Close of Business" on any given date shall mean
5:00 P.M. Eastern time on such date; provided, however, that if
such date is not a Business Day it shall mean 5:00 P.M. Eastern
time on the next succeeding Business Day.
(i) "Common Stock" shall mean the common stock, $.10
per share par value, of the Company, except that "Common Stock"
or "common stock" when used with reference to any Person other
than the Company shall mean the capital stock of such Person with
the greatest voting power, or the equity securities or other
equity interest having power to control or direct the management,
of such Person.
(j) "Common Stock Equivalent" shall have the meaning
set forth in Section 11(a))(iii) hereof.
(k) "Company" shall mean EMS Technologies, Inc., a
Georgia corporation, until a successor corporation shall have
become such or until a Principal Party shall assume, and
thereafter be liable for, all obligations and duties of the
Company hereunder, pursuant to the applicable provisions of this
Plan, and thereafter "Company" shall mean such successor
corporation or Principal Party.
(1) "Current Market Price" shall have the meaning set
forth in Section ll(d) hereof.
(m) "Current Value" shall have the meaning set forth in
Section ll(a)(iii) hereof.
(n) "Disinterested Director" shall mean any member of
the Board, while such Person is a member of the Board, who (i) is
not an Acquiring Person or an Affiliate or Associate of an
Acquiring Person, (ii) was not nominated by or is not in any
other manner representative of an Acquiring Person or of an
Affiliate or Associate of an Acquiring Person, (iii) does not
control and is not controlled by an Acquiring Person or an
Affiliate or Associate of an Acquiring Person, and (iv) does not
have a substantial interest (whether by beneficial ownership of
securities or otherwise) in an Acquiring Person or an Affiliate
or Associate of an Acquiring Person. An interest of less than 5%
shall not be considered "substantial" for purposes of this
definition.
(o) "Distribution Date" shall have the meaning set
forth in Section 3 (a) hereof.
(p) "Equivalent Common Stock" shall have the meaning
set forth in Section ll(b) hereof.
(q) "Exchange Act" shall have the meaning set forth in
Section l(d) hereof.
(r) "Expiration Date" shall have the meaning set forth
in Section 7(a) hereof.
(s) "Fair Value Offer" shall have the meaning set forth
in section ll(a)(ii)(A) hereof.
(t) "Final Expiration Date" shall mean the Close of
Business on August 6, 2009.
(u) "Original Rights" shall have the meaning set forth
in Section l(e)(I) hereof.
(v) "Person" shall mean any individual, firm,
corporation, partnership, unincorporated association, syndicate
or other entity.
(w) "Plan" shall mean this Stockholder Rights Plan as
originally adopted or as it may from time to time be supplemented
or amended pursuant to the applicable provisions hereof.
(x) "Principal Party" shall have the meaning set forth
in Section 13(b) hereof.
(y) "Purchase Price" shall have the meaning set forth
in Section 4(a) hereof.
(z) "Record Date" shall mean April 16, 1999.
(aa) "Redemption Price" shall have the meaning set
forth in Section 20(a).
(bb) "Right" shall mean the right to purchase one share
of Common Stock (subject to adjustment) as provided herein
(cc) "Rights Agent" shall have the meaning set forth in
Section 2 hereof.
(dd) "Rights Certificates" shall have the meaning set
forth in Section 3(a) hereof.
(ee) "Rights Dividend Declaration Date" shall mean
April 6, 1999, the effective date of this Plan.
(ff) "Section ll(a)(ii) Event" shall mean any event
described in Section ll(a)(ii) hereof.
(gg) "Section ll(a)(ii) Trigger Date" shall have the
meaning set forth in Section ll(a)(iii) hereof.
(hh) "Section 13 Event" shall mean any event described
in clauses (x), (y) or (z) of Section 13(a) hereof.
(ii) "Spread" shall have the meaning set forth in
Section ll(a)(iii) hereof.
(jj) "Stock Acquisition Date" shall mean the first date
of public announcement (which, for purposes of this definition,
shall include, without limitation, a report filed pursuant to
Section 13(d) under the Exchange Act) by the Company or an
Acquiring Person that an Acquiring Person has become such without
the consent of a majority of the Disinterested Directors.
(kk) "Subsidiary" shall mean, with reference to any
Person, any corporation of which an amount of voting securities
sufficient to elect at least a majority of the directors of such
corporation is beneficially owned, directly or indirectly, by
such Person, or otherwise controlled by such Person.
(ll) "Substitute Consideration" shall have the meaning
set forth in Section ll(a)(iii) hereof.
(mm) "Substitution Period" shall have the meaning set
forth in Section ll(a)(iii) hereof.
(nn) "Summary of Rights" shall have the meaning set
forth in Section 3(b) hereof.
(oo) "Trading Day" shall have the meaning set forth in
Section ll(d) hereof.
(pp) "Triggering Event" shall mean any Section
ll(a)(ii) Event or any Section 13 Event.
Section 2. Authority to Appoint Rights Agent.
The Company may appoint a rights agent (or one or more co-
rights agents) to act as agent for the Company and the holders of
the Rights (who, in accordance with Section 3 hereof, shall prior
to the Distribution Date also be the holders of the Common Stock)
in accordance with the terms and conditions hereof (the "Rights
Agent"), and may amend or supplement this Plan in accordance with
Section 23 hereof in any manner necessary or desirable to induce
such Rights Agent to accept its appointment hereunder.
Section 3. Issue of Rights Certificates.
(a) Until the earliest of (i) the Close of Business on
the tenth day after the Stock Acquisition Date, (ii) the Close of
Business on the tenth day after the date that a tender or
exchange offer by any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the
Company or of any Subsidiary of the Company, or any person or
entity organized, appointed or established by the Company acting
in accordance with and for or pursuant to the terms of any such
plan) is first published or sent or given within the meaning of
Rule 14d-2(a) of the General Rules and Regulations under the
Exchange Act, if upon consummation thereof, such Person would be
the Beneficial Owner of 20% or more of the shares of Common Stock
then outstanding, (iii) the Close of Business on the tenth day
after the occurrence of any of the events described in Section
ll(a)(ii)(B), or (iv) the Close of Business on the tenth day
after the date that an offer to effect any of the transactions
described in Section 13(a) made, encouraged or supported by
Acquiring Person is first announced, published, sent or given
(the earliest of (I), (ii), (iii) and (iv) being herein referred
to as the "Distribution Date"), (x) the Rights will be evidenced
(subject to the provisions of paragraph (b) of this Section 3) by
the certificates for the Common Stock registered in the names of
the holders of the Common Stock (which certificates for Common
Stock shall be deemed also to be certificates for Rights) and not
by separate certificates, and (y) the Rights will be transferable
only in connection with the transfer of the underlying shares of
Common Stock (including a transfer to the Company). As soon as
practicable after the Distribution Date, the Company will send by
first class, insured, postage prepaid mail, to each record holder
of the Common Stock as of the Close of Business on the
Distribution Date, at the address of such holder shown on the
records of the Company, one or more rights certificates, in
substantially the form of Exhibit A hereto (the "Rights
Certificates"), evidencing one Right for each share of Common
Stock so held, subject to adjustment as provided herein. In the
event that an adjustment in the number of Rights per share of
Common Stock has been made pursuant to Section ll(p) hereof, at
the time of distribution of the Rights Certificates, the Company
shall make the necessary and appropriate rounding adjustments (in
accordance with Section 14(a) hereof) so that Rights Certificates
representing only whole numbers of Rights are distributed and
cash is paid in lieu of any fractional Rights. As of and after
the Distribution Date, the Rights will be evidenced solely by
such Rights Certificates.
(b) Upon the request of any record holder of the Common
Stock, the Company will send a copy of a Summary of Rights, in
substantially the form attached hereto as Exhibit B (the "Summary
of Rights"), by first class, postage prepaid mail, to such holder
at the address of such holder shown on the records of the
Company. With respect to certificates for the Common Stock
outstanding as of the Record Date, until the Distribution Date
the Rights will be evidenced by such certificates for the Common
Stock and the registered holders of the Common Stock shall also
be the registered holders of the associated Rights. Until the
earlier of the Distribution Date or the Expiration Date, the
transfer of any certificates representing shares of Common Stock
in respect of which Rights have been issued shall also constitute
the transfer of the Rights associated with such shares of Common
Stock.
(c) Except as may otherwise be determined by the Board,
Rights shall be issued in respect of all shares of Common Stock
which are issued (whether originally issued or from the Company's
treasury) after the Record Date but prior to the earlier of the
Distribution Date or the Expiration Date, and in the event of
such a determination by the Board, no other provisions of this
Plan shall apply to any shares of Common Stock which the Board
has determined to be issued without Rights. Certificates
representing such shares of Common Stock shall also be deemed to
be certificates for Rights, and shall bear the following legend:
This certificate also evidences and entitles the holder
hereof to certain Rights as set forth in the Stockholder
Rights Plan of EMS Technologies, Inc. (the "Company") dated
as of April 6, 1999, as it may be from time to time amended
(the "Plan"), the terms of which are hereby incorporated
herein by reference and a copy of which is on file at the
principal offices of the Company. Under certain
circumstances, as set forth in the Plan, such Rights will be
evidenced by separate certificates and will no longer be
evidenced by this certificate. The Company will mail to the
holder of this certificate a copy of the Plan, as in effect
on the date of mailing, without charge promptly after
receipt of a written request therefor. Under certain
circumstances set forth in the Plan, Rights issued to or
held by any Person who is, was or becomes an Acquiring
Person or any Affiliate or Associate thereof (as such terms
are defined in the Plan), whether currently held by or on
behalf of such Person or by any subsequent holder, may
become null and void.
With respect to such certificates containing the foregoing
legend, until the earlier of (i) the Distribution Date or (ii)
the Expiration Date, the Rights associated with the Common Stock
represented by such certificates shall be evidenced by such
certificates alone and registered holders of Common Stock shall
also be the registered holders of the associated Rights, and the
transfer of any of such certificates shall also constitute the
transfer of the Rights associated with the Common Stock
represented by such certificates.
Section 4. Form of Rights Certificates.
(a) The Rights Certificates (and the forms of election
to purchase and of assignment to be printed on the reverse
thereof) shall each be substantially in the form set forth in
Exhibit A hereto and may have such marks of -identification or
designation and such legends, summaries or endorsements printed
thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Plan, or as may be
required to comply with any applicable law or with any rule or
regulation made pursuant thereto or with any rule or regulation
of any stock exchange on which the Rights may from time to time
be listed, or to conform to usage. Subject to the provisions of
Section 11 and Section 19 hereof, the Rights Certificates,
whenever distributed, shall be dated as of the Record Date and on
their face shall entitle the holders thereof to purchase such
number of shares of Common Stock as shall be set forth therein at
the price set forth therein (such exercise price per share, the
"Purchase Price"), but the amount and type of securities
purchasable upon the exercise of each Right and the Purchase
Price thereof shall be subject to adjustment as provided herein.
(b) Any Rights Certificate issued pursuant to Section
3(a) or Section 19 hereof that represents Rights beneficially
owned by: (i) an Acquiring Person or any Associate or Affiliate
of an Acquiring Person, (ii) a transferee of an Acquiring Person
(or of any such Associate or Affiliate) who becomes a transferee
after the Acquiring Person becomes such, or (iii) a transferee of
an Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee prior to or concurrently with the Acquiring
Person becoming such and receives such Rights pursuant to either
(A) a transfer (whether or not for consideration) from the
Acquiring Person to holders of equity interests in such Acquiring
Person or to any Person with whom such Acquiring Person has any
continuing agreement, arrangement or understanding regarding the
transferred Rights or (B) a transfer which a majority of the
Disinterested Directors have determined is part of a plan,
arrangement or understanding which has as a primary purpose or
effect avoidance of Section 7(e) hereof, and any Rights
Certificate issued pursuant to Section 6 or Section 11 hereof
upon transfer, exchange, replacement or adjustment of any other
Rights Certificate referred to in this sentence, shall contain
(to the extent feasible) the following legend, modified as
applicable to such Person:
The Rights represented by this Rights Certificate are or
were beneficially owned by a Person who was or became an
Acquiring Person or an Affiliate or Associate of an
Acquiring Person (as such terms are defined in the Plan).
Accordingly, this Rights Certificate and the Rights
represented hereby may become null and void in the
circumstances specified in Section 7(e) of such Plan.
Section 5. Registration.
(a) The Rights Certificates shall be executed on behalf
of the Company by its Chairman of the Board, its President or any
Vice President, either manually or by facsimile signature, and
shall have affixed thereto the Company's seal or a facsimile
thereof which shall be attested by the Secretary or an Assistant
Secretary of the Company, either manually or by facsimile
signature. In case any officer of the Company who shall have
signed any of the Rights Certificates shall cease to be such
officer of the Company before issuance and delivery by the
Company, such Rights Certificates, nevertheless, may be issued
and delivered by the Company with the same force and effect as
though the person who signed such Rights Certificates had not
ceased to be such officer of the Company; and any Rights
Certificates may be signed on behalf of the Company by any person
who, at the actual date of the execution of such Rights
Certificate, shall be a proper officer of the Company to sign
such Rights Certificate, although at the date of the execution of
this Plan any such person was not such an officer.
(b) Following the Distribution Date, the Company or the
Rights Agent, if any, will keep or cause to be kept, at the
principal executive office of the Company or at the principal
stockholder services office or offices of the Rights Agent
designated for such purposes, as the case may be, books for
registration and transfer of the Rights Certificates issued
hereunder. Such books shall show the names and addresses of the
respective holders of the Rights Certificates, the number of
Rights evidenced on its face by each of the Rights Certificates
and the date of each of the Rights Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of
Rights Certificates; Mutilated, Destroyed, Lost or Stolen Rights
Certificates.
(a) Subject to the provisions of Section 4(b), Section
7(e) and Section 14 hereof, at any time after the Close of
Business on the Distribution Date, and at or prior to the Close
of Business on the Expiration Date, any Rights Certificate or
Certificates may be transferred, split up, combined or exchanged
for another Rights Certificate or Certificates, entitling the
registered holder to purchase a like number of shares of Common
Stock (or, following a Triggering Event, other securities, cash
or other assets, as the case may be) as the Rights Certificate or
Certificates surrendered then entitle such holder (or former
holder in the case of a transfer) to purchase. Any registered
holder desiring to transfer, split up, combine or exchange any
Rights Certificate or Certificates shall make such request in
writing delivered to the Company or the Rights Agent, if any, and
shall surrender the Rights Certificate or Certificates to be
transferred, split up, combined or exchanged, with the form of
assignment and certificate duly executed, at the principal
executive office of the Company, or the principal stockholder
services office or offices of the Rights Agent designated for
such purposes, as the case may be. Neither the Company nor the
Rights Agent, if any, as the case may be, shall be obligated to
take any action whatsoever with respect to the transfer of any
such surrendered Rights Certificate until the registered holder
shall have completed and signed the certificate contained in the
form of assignment set forth on the reverse side of each such
Rights Certificate and shall have provided such additional
evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as the
Secretary of the Company or the Rights Agent, as the case may be,
shall reasonably request. Thereupon the Secretary of the Company
or the Rights Agent, as the case may be, shall, subject to
Section 4(b), Section 7(e) and Section 14 hereof, deliver to the
Person entitled thereto a Rights Certificate or Rights
Certificates, as the case may be, as so requested. The Company
may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any
transfer, Split up, combination or exchange of Rights
Certificates.
(b) Upon receipt by the Company or the Rights Agent, if
any, of evidence reasonably satisfactory to either of them of the
loss, theft, destruction or mutilation of a Rights Certificate,
and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to either of them, and
reimbursement to the Company or the Rights Agent, as the case may
be, of all reasonable expenses incidental thereto, and upon
surrender to the Company or the Rights Agent, as the case may be,
and cancellation of the Rights Certificate if mutilated,
the Company or the Rights Agent, as the case may be, will execute
and deliver a new Rights Certificate of like tenor to the
registered owner in lieu of the Rights Certificate so lost,
stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration
Date of Rights.
(a) Subject to Section 7(e) hereof, the registered
holder of any Rights Certificate may exercise the Rights
evidenced thereby (except as otherwise provided herein, including
without limitation the restrictions on exercisability set forth
in Section 9(c), Section ll(a)(iii) and Section 20(a) hereof) in
whole or in part at any time after the Distribution Date upon
surrender of the Rights Certificate, with the form of election to
purchase and the certificate on the reverse side thereof duly
executed, to the Company or the Rights Agent, if any, at the
principal executive office of the Company or the principal
stockholder services office or offices of the Rights Agent
designated for such purposes, as the case may be, together with
payment of the aggregate Purchase Price with respect to the total
number of shares of Common Stock (or other securities, cash or
other assets, as the case may be) as to which such surrendered
Rights are then exercisable, at or prior to the earlier of (i)
the Final Expiration Date or (ii) the time at which the Rights
are redeemed as provided in Section 20 hereof (the earlier of (i)
or (ii) being herein referred to as the "Expiration Date").
(b) The Purchase Price for each share of Common Stock
pursuant to the exercise of a Right shall initially be $45.00,
and shall be subject to adjustment from time to time as provided
in Sections 11 and 13(a) hereof and shall be payable in
accordance with paragraph (c) below.
(c) Upon receipt of a Rights Certificate representing
exercisable Rights, with the form of election to purchase and the
certificate duly executed, accompanied by payment, with respect
to each Right so exercised, of the Purchase Price per share of
Common Stock (or, following a Triggering Event, other securities,
cash or other assets, as the case may be) to be purchased as set
forth below and an amount equal to any applicable transfer tax,
the Company shall promptly (I)(A) requisition from any transfer
agent of the shares of Common Stock, if any (but only to the
extent such transfer agent expressly assumes such duty), or, if
none, from the Company's Secretary, as the case may be,
certificates for the total number of shares of Common Stock to be
purchased and the Company hereby irrevocably authorizes its
transfer agent to comply with all such requests, or (B) if the
Company shall have elected to deposit the total number of shares
of Common Stock issuable upon exercise of the Rights hereunder
with a depository agent, requisition from the depository agent
depository receipts representing such number of shares of Common
Stock as are to be purchased (in which case certificates for the
shares of Common Stock represented by such receipts shall be
deposited by the transfer agent (but only to the extent such
transfer agent expressly assumes such duty), or, if none, from
the Company's Secretary, as the case may be, with the depository
agent) and the Company will direct the depository agent to comply
with such request, (ii) when appropriate, requisition the amount
of cash, if any, to be paid in lieu of fractional shares of
Common Stock in accordance with Section 14 hereof, (iii) after
receipt of such certificates or depository receipts for shares of
Common Stock, cause the same to be delivered to or upon the order
of the registered holder of such Rights Certificate, registered
in such name or names as may be designated by such holder, and
(iv) after receipt thereof, deliver such cash, if any, to or upon
the order of the registered holder of such Rights Certificate.
The payment of the Purchase Price (as such amount may be reduced
pursuant to Section ll(a)(iii) hereof) may be made (x) in cash or
by certified check, cashier's check or bank draft payable to the
order of the Company or (y) if the Board so determines, by
delivery of a certificate or certificates (with appropriate stock
powers executed in blank attached thereto) evidencing a number of
shares of Common Stock equal to the then Purchase Price divided
by the closing price (as determined pursuant to Section ll(d)
hereof) per share of Common Stock on the Trading Day immediately
preceding the date of such exercise. In the event that the
Company is obligated to issue other securities of the Company,
pay cash and/or distribute other property pursuant to Section
ll(a) hereof, the Company will make all arrangements necessary so
that such other securities, cash and/or other property are
available for distribution, if and when appropriate. The Company
reserves the right to require, prior to the occurrence of a
Section ll(a)(ii) Event or a Section 13 Event, that upon exercise
of any Rights, an appropriate number of Rights be exercised so
that any Common Stock issuable hereunder shall only be issued as
whole shares.
(d) In case the registered holder of any Rights
Certificate shall exercise less than all the Rights evidenced
thereby, a new Rights Certificate evidencing Rights equivalent to
the Rights remaining unexercised shall be issued by the Company
and delivered to, or upon the order of, the registered holder of
such Rights Certificate, registered in such name or names as may
be designated by such holder, subject to the provisions of
Section 14 hereof.
(e) Notwithstanding anything in this Plan to the
contrary, from and after the first occurrence of a Section
ll(a)(ii) Event, any Rights beneficially owned by (i) an
Acquiring Person or an Associate or Affiliate of an Acquiring
Person, (ii) a transferee of any such Acquiring Person (or of
any such Associate or Affiliate) who becomes a transferee after
such Acquiring Person becomes such, or (iii) a transferee of any
such Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee prior to or concurrently with such Acquiring
Person becoming such and receives such Rights pursuant to either
(A) a transfer (whether or not for consideration) from such
Acquiring Person to holders of equity interests in such Acquiring
Person or to any Person with whom such Acquiring Person has any
continuing agreement, arrangement or understanding regarding the
transferred Rights or (B) a transfer which a majority of the
Disinterested Directors have determined is part of a plan,
arrangement or understanding which has as a primary purpose or
effect the avoidance of this Section 7(e), shall become null and
void without any further action and no holder of such Rights
shall have any rights whatsoever with respect to such Rights,
whether under any provision of this Plan or otherwise. The
Company shall use all reasonable efforts to ensure that the
provisions of this Section 7(e) and Section 4(b) hereof are
complied with, but shall have no liability to any holder of
Rights Certificates or other Person as a result of its failure to
make any determinations with respect to an Acquiring Person or
any Affiliates, Associates or transferees of an Acquiring Person
hereunder.
(f) Notwithstanding anything in this Plan to the
contrary, the Company shall not 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 following the form of election to purchase set forth
on the reverse side of the Rights Certificate surrendered for
such exercise, and (ii) provided such additional evidence of the
identity of the Beneficial Owner (or former Beneficial Owner) or
Affiliates or Associates thereof as the Company shall reasonably
request.
Section 8. Cancellation and Destruction of Rights
Certificates.
All Rights Certificates surrendered for the purpose of
exercise, transfer, Split up, combination or exchange shall, upon
surrender to the Company or any of its agents, be cancelled by
it, and no Rights Certificates shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this
Plan. The Company shall cancel and retire any other Rights
Certificate purchased or acquired by the Company otherwise than
upon the exercise thereof.
Section 9. Reservation and Availability of Capital Stock.
(a) The Company shall use reasonable efforts to cause
to be reserved and kept available out of its authorized and
unissued shares of Common Stock (and, following the occurrence of
a Triggering Event, other securities) or out of its authorized
and issued Common Stock held in its treasury, the number of
shares of Common Stock (and, following the occurrence of a
Triggering Event, other securities) that, as provided in this
Plan, including Section ll(a)(iii) hereof, will be sufficient to
permit the exercise in full of all outstanding Rights.
(b) So long as the shares of Common Stock (and,
following the occurrence of a Triggering Event, other securities)
issuable and deliverable upon the exercise of the Rights are
listed on any national securities exchange, the Company shall use
its best efforts to cause, from and after such time as the Rights
become exercisable, all shares reserved for such issuance to be
listed on such exchange upon official notice of issuance upon
such exercise.
(c) The Company shall use its best efforts to (i) file,
as soon as practicable following the earliest date after the
first occurrence of a Section ll(a)(ii) Event on which the
consideration to be delivered by the Company upon exercise of the
Rights has been determined in accordance with Section ll(a)(iii)
hereof, or as soon as is required by law following the
Distribution Date, as the case may be, a registration statement
under the Act with respect to the securities purchasable upon
exercise of the Rights on an appropriate form, (ii) cause such
registration statement to become effective as soon as practicable
after such filing, and (iii) cause such registration statement to
remain effective (with a prospectus at all times meeting the
requirements of the Act) until the earlier of (A) the date as of
which the Rights are no longer exercisable for such securities,
and (B) the date of the expiration of the Rights. The Company
will also take such action as may be appropriate under, or to
ensure compliance with, the securities or "blue sky" laws of the
various states in connection with the exercisability of the
Rights. The Company may temporarily suspend, for a period of time
not to exceed ninety (90) days after the date set forth in clause
(i) of the first sentence of this Section 9(c), the
exercisability of the Rights in order to prepare and file such
registration statement and permit it to become effective. Upon
any such suspension, the Company shall issue a public
announcement stating that the exercisability of the Rights has
been temporarily suspended, as well as a public announcement at
such time as the suspension is no longer in effect. In addition,
if the Company shall determine that a registration statement is
required following the Distribution Date, the Company may
temporarily suspend the exercisability of the Rights until such
time as a registration statement has been declared effective.
Notwithstanding any provision of this Plan to the contrary, the
Rights shall not be exercisable in any jurisdiction if the
requisite qualification in such jurisdiction shall not have been
obtained, the exercise thereof shall not be permitted under
applicable law, or any necessary registration statement, the
effectiveness of which in such jurisdiction is required to make
the offering not illegal, shall not have been declared effective.
(d) The Company shall take all such action as may be
necessary to ensure that all shares of Common Stock (and,
following the occurrence of a Triggering Event, other
securities), delivered upon exercise of Rights shall, at the time
of delivery of the certificates for such shares and of such other
securities (subject to payment of the Purchase Price), be duly
and validly authorized and issued and that all shares shall be
fully paid and nonassessable.
(e) The Company shall pay when due and payable any and
all federal and state transfer taxes and charges which may be
payable in respect of the issuance or delivery of the Rights
Certificates, any certificates for shares of Common Stock (or
other securities, as the case may be) issued upon the exercise of
Rights. The Company shall not, however, be required to pay any
transfer tax which may be payable in respect of any transfer or
delivery of Rights Certificates to a Person other than, or the
issuance or delivery of a number of shares of Common Stock (or
other securities, as the case may be) in respect of a name other
than that of, the registered holder of the Rights Certificates
evidencing Rights surrendered for exercise, or to issue or
deliver any certificates for a number of shares of Common Stock
(or other securities, as the case may be) in a name other than
that of the registered holder upon the exercise of any Rights
until such tax shall have been paid (any such tax being payable
by the holder of such Rights Certificate at the time of
surrender), or until it has been established to the Company's
satisfaction that no such tax is due.
Section 10. Record Date for Securities Issued Upon Exercise.
Each Person in whose name any certificate for a number of
shares of Common Stock (or other securities, as the case may be)
is issued upon the exercise of Rights shall for all purposes be
deemed to have become the holder of record of such shares of
Common Stock (or other securities, as the case may be)
represented thereby on, and such certificate shall be dated, the
date upon which the Rights Certificate evidencing such Rights was
duly surrendered and payment of the Purchase Price (and all
applicable transfer taxes) was made; provided, however, that if
the date of such surrender and payment is a date upon which the
Common Stock (or other securities, as the case may be) transfer
books of the Company are closed, such Person shall be deemed to
have become the record holder of such stock (or other securities,
as the case may be) on, and such certificate shall be dated, the
next succeeding Business Day on which the Common Stock (or other
securities, as the case may be) transfer books of the Company are
open. Prior to the exercise of the Rights evidenced thereby, the
holder of a Rights Certificate shall not be entitled to any
rights of a stockholder of the Company with respect to stock for
which the Rights shall be exercisable, including, without
limitation, the right to vote, to receive dividends or other
distributions or to exercise any preemptive rights, and shall not
be entitled to receive any notice of any proceedings of the
Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number and Kind of
Shares or Number of Rights.
The Purchase Price, the number and kind of securities
covered by each Right and the number of Rights outstanding are
subject to adjustment from time to time as provided in this
Section 11.
(a)(I) In the event the Company shall at any time after
the date this Plan is adopted (A) declare a dividend on the
Common Stock payable in shares of Common Stock, (B) subdivide the
outstanding Common Stock, (C) combine the outstanding Common
Stock into a smaller number of shares, or (D) issue any shares of
its capital stock in a reclassification of the Common Stock
(including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or
surviving corporation), except as otherwise provided in this
Section ll(a) and Section 7(e) hereof, the Purchase Price in
effect at the time of the record date for such dividend or of the
effective date of such subdivision, combination or
reclassification, and the number of shares of Common Stock (or
the number and kind of other securities, as the case may be),
shall be proportionately adjusted so that if a holder of Rights
after such time were to exercise that number of Rights which
would result in the aggregate amount of the Purchase Price
payable upon such exercise tat the Purchase Price then in effect)
being equal to the amount of the Purchase Price that was payable
prior to such time upon exercise of a Right, the holder would be
entitled to receive the aggregate number of shares of Common
Stock (or the number and kind of other securities, as the case
may be) which, if a Right had been exercised immediately prior to
such time and at a time when the Common Stock (or other
securities, as the case may be) transfer books of the Company
were open, the holder would have owned upon such exercise and
been entitled to receive by virtue of such dividend, subdivision,
combination or reclassification. If an event occurs which would
require an adjustment under both this Section ll(a)(I) and
Section ll(a)(ii) hereof, the adjustment provided for in this
Section ll(a)(I) shall be in addition to, and shall be made prior
to, any adjustment required Pursuant to Section ll(a)(ii) hereof.
(ii) In the event:
(A) any Person or group of Persons shall at any time
after the Rights Dividend Declaration Date, without the consent
of a majority of the Disinterested Directors, become an Acquiring
Person unless the event causing the 20% threshold to be crossed
is a transaction set forth in Section 13(a) hereof, or is an
acquisition of shares of Common Stock pursuant to a tender offer
or an exchange offer for all outstanding shares of Common Stock
at a price and on terms determined by at least a majority of the
Disinterested Directors after receiving advice from one or more
investment banking firms, to be (a) at a price which is fair to
stockholders (taking into account all factors which such members
of the Board deem relevant including, without limitation, prices
which could reasonably be achieved if the Company or its assets
were sold on an orderly basis designed to realize maximum value)
and (b) otherwise in the best interests of the Company and its
stockholders (such offer herein referred to as a "Fair Value
Offer"), or
(B) any Acquiring Person whose acquisition of 20% or
more of the Company's Common Stock has been consented to by a
majority of the Disinterested Directors, or any Associate or
Affiliate of any such Acquiring Person, shall, without the
consent of a majority of the Disinterested Directors, (1)
acquire, directly or indirectly, in one or a series of
transactions, an additional 2% or more of the Company's Common
Stock, (2) sell, purchase, lease, exchange, mortgage, pledge,
transfer or otherwise acquire or dispose of, in one or a series
of transactions, to, from or with the Company or any of its
Subsidiaries, assets on terms and conditions less favorable to
the Company than the Company would be able to obtain in arm's
length negotiation with an unaffiliated third party, other than
pursuant to a transaction set forth in Section 13(a) hereof, (3)
sell, purchase, lease, exchange, mortgage, pledge, transfer or
otherwise acquire or dispose of, in one or a series of
transactions, to, from or with the Company or any of its
Subsidiaries (other than incidental to the lines of business, if
any, engaged in as of the date of this Plan between the Company
and such Acquiring Person or Associate or Affiliate thereof)
assets having an aggregate fair market value of more than
$5,000,000, other than pursuant to a transaction set forth in
Section 13(a) hereof, (4) receive any compensation from the
Company or any of the Company's Subsidiaries other than
compensation for full-time employment as a regular employee at
rates in accordance with the Company's or such Subsidiary's
normal practices, or (5) receive the benefit, directly or
indirectly (except resulting from a requirement of law or
governmental regulation), of any loans, advances, guarantees,
pledges or other financial assistance or any tax credits or other
tax advantage provided by the Company or any of its Subsidiaries.
then, ten days following the first occurrence of a Section
ll(a)(ii) Event (or such shorter or longer period as a majority
of the Disinterested Directors shall from time to time
determine), proper provision shall be made so that each holder of
a Right (except as provided below and in Section 7(e) hereof)
shall thereafter have the right to receive, upon exercise thereof
at the then current Purchase Price in accordance with the terms
of this Plan such number of shares of Common Stock of the Company
as shall equal the result obtained by (x) multiplying the then
current Purchase Price by the then number of shares of Common
Stock for which a Right was exercisable immediately prior to the
first occurrence of a Section ll(a)(ii) Event, and (y) dividing
that product (which, following such first occurrence, shall
thereafter be referred to as the "Purchase Price" for each Right
and for all purposes of this Plan) by 50% of the Current Market
Price per share of Common Stock on the date of such first
occurrence (such number of shares, the "Adjustment Shares");
provided that, in no event shall the Company issue or be
obligated to issue Common Stock at a Purchase Price per share of
Common Stock that is less than the per share par value of the
Common Stock as the same may be adjusted from time to time; and
provided further that after the occurrence of any Section
ll(a)(ii) event, the Company, by action of a majority of the
Disinterested Directors in office at the time, may permit the
Rights to be exercised, or may require and specify that the
Rights may only be exercised, for 50% of the shares of Common
Stock (or cash or other securities or assets to be substituted
for the Adjustment Shares pursuant to Section ll(a)(iii) below)
that would otherwise be purchasable pursuant to the preceding
clauses of this Section ll(a)(ii) in consideration of the
surrender to the Company of the Rights so exercised and without
payment of the Purchase Price(except to the extent, if any, as
may, in the opinion of the Company's legal counsel, be necessary
in order that the Company may validly and legally thereupon issue
fully paid and nonassessable shares of Common Stock), and all
Rights so exercised under this proviso without payment of the
Purchase Price shall be deemed to have been exercised in full and
shall be cancelled; and provided further that during the ten days
following the first occurrence of a Section ll(a)(ii) Event (or
such shorter or longer period as a majority of the Disinterested
Directors shall from time to time determine), the Rights may be
redeemed only by the vote of a majority of the Disinterested
Directors who are Directors of the Company on the day before the
occurrence of such Section ll(a)(ii) Event.
(iii) In the event that the number of shares of Common Stock
which are authorized by the Company's articles of incorporation
but not outstanding or reserved for issuance for purposes other
than upon exercise of the Rights is not sufficient to permit the
exercise in full of the Rights in accordance with the foregoing
subparagraph (ii) of this Section ll(a), the Company shall: (A)
determine the excess of (i) the value of the Adjustment Shares
issuable upon the exercise of a Right (the "Current Value") over
(2) the Purchase Price (such excess being referred to as the
"Spread"), and (B) with respect to each Right, make adequate
provision to substitute for the Adjustment Shares, upon payment
of the applicable Purchase Price, (1) cash, (2) a reduction in
the Purchase Price, (3) other equity securities of the Company
(including, without limitation, shares, or units of shares of
preferred stock, if any exists at such time), which the Board has
deemed to have the same value as shares of Common Stock (such
shares of preferred stock being referred to as "Common Stock
Equivalents")), (4) debt securities of the Company, (5) other
assets, or (6) any combination of the foregoing (whichever
substituted, the "Substitute Consideration"), having an aggregate
value equal to the Current Value, where such aggregate value has
been determined by the Board based upon the advice of a
nationally recognized investment banking firm selected by the
Board; provided, however, if the Company shall not have made
adequate provision to deliver value pursuant to clause (B) above
within thirty (30) days following the date of the first
occurrence of a Section ll(a)(ii) Event (such date being referred
to herein as the "Section ll(a)(ii) Trigger Date"), then, subject
to subsection (k) hereof, the Company shall be obligated to
deliver, upon the surrender for exercise of a Right and without
requiring payment of the Purchase Price, shares of Common Stock
(to the extent available) and then, if necessary, cash, which
shares and/or cash have an aggregate value equal to the Spread.
If the Board shall determine in good faith that it is likely that
sufficient additional shares of Common Stock could be authorized
for issuance upon exercise in full of the Rights, the thirty (30)
day period set forth above may be extended to the extent
necessary, but not more than ninety (90) days after the Section
ll(a)(ii) Trigger Date, in order that the Company may seek
stockholder approval for the authorization of such additional
shares (such period, as it may be extended, being referred to
herein as the "Substitution Period"). To the extent that the
Company determines that some action need be taken pursuant to the
first and/or second sentences of this Section ll(a)(iii), the
Company (x) shall provide, subject to Section 7(e) hereof, that
such action shall apply uniformly to all outstanding Rights, and
(y) may suspend the exercisability of the Rights until the
expiration of the Substitution Period in order to seek any
authorization of additional shares and/or to decide the
appropriate form of distribution to be made pursuant to such
first sentence and to determine the value thereof. In the event
of any such suspension, the Company shall issue a public
announcement stating that the exercisability of the Rights has
been temporarily suspended, as well as a public announcement at
such time as the suspension is no longer in effect. For purposes
of this Section ll(a)(iii), the value of the Common Stock shall
be the Current Market Price per share of the Common Stock on the
Section ll(a)(ii) Trigger Date and the value of any Common Stock
Equivalent shall be deemed to have the same value as the Common
Stock on such date.
(b) In case the Company shall fix a record date for issuance
of rights, options or warrants to all holders of Common Stock,
entitling them to subscribe for or purchase (for a period
expiring within forty-five (45) calendar days after such record
date) Common Stock (or shares having the same rights, privilege
and preferences as the shares of Common Stock ("Equivalent Common
Stock")) or securities convertible into Common Stock or
Equivalent Common Stock at a price per share of Common Stock or
per share of Equivalent Common Stock (or having a conversion
price per share, if a security convertible into Common Stock or
Equivalent Common Stock) less than the Current Market Price per
share of Common Stock on such record date, the Purchase Price to
be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to
such record date by a fraction, the numerator of which shall be
the number of shares of Common Stock outstanding on such record
date, plus the number of shares of Common Stock which the
aggregate offering price of the total number of shares of Common
Stock and/or Equivalent Common Stock so to be offered (and/or the
aggregate initial conversion price of the convertible securities
so to be offered) would purchase at such Current Market Price,
and the denominator of which shall be the number of shares of
Common Stock outstanding on such record date, plus the number of
additional shares of Common Stock and/or Equivalent Common Stock
to be offered for subscription or purchase (or into which the
convertible securities so to be offered are initially
convertible). In case such subscription price may be paid by
delivery of consideration part or all of which may be in a form
other than cash, the value of such consideration shall be as
determined in good faith by the Board whose determination shall
be conclusive for all purposes. Shares of Common Stock owned by
or held for the account of the Company shall not be deemed
outstanding for the purpose of any such computation. Such
adjustment shall be made successively whenever such a record date
is fixed, and in the event that such rights or warrants are not
so issued, the Purchase Price shall be adjusted to be the
Purchase Price which would then be in effect if such record date
had not been fixed.
(c) In case the Company shall fix a record date for a
distribution to all holders of Common Stock (including any such
distribution made in connection with a consolidation or merger in
which the Company is the continuing corporation) of evidences of
indebtedness, cash (other than a regular quarterly cash dividend
out of the earnings or retained earnings of the Company), assets
(other than a dividend payable in Common Stock, but including any
dividend payable in stock other than Common Stock) or
subscription rights or warrants (excluding those referred to in
Section ll(b) hereof), the Purchase Price to be in effect after
such record date shall be determined by multiplying the Purchase
Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the Current Market
Price per share of Common Stock on such record date, less the
fair market value (as determined in good faith by the Board whose
determination shall be conclusive for all purposes) of the
portion of the cash, assets or evidences of indebtedness so to be
distributed or of such subscription rights or warrants applicable
to a share of Common Stock and the denominator of which shall be
such Current Market Price per share of Common Stock. Such
adjustments shall be made successively whenever such a record
date is fixed, and in the event that such distribution is not so
made, the Purchase Price shall be adjusted to be the Purchase
Price which would have been in effect if such record date had not
been fixed.
(d) For the purpose of any computation hereunder, other than
computations made pursuant to Section ll(a)(iii) hereof, the
"Current Market Price" per share of Common Stock on any date
shall be deemed to be the average of the daily closing prices per
share of such Common Stock for the thirty (30) consecutive
Trading Days immediately prior to such date, and for purposes of
computations made pursuant to Section ll(a)(iii) hereof, the
"Current Market Price" per share of Common Stock on any date
shall be deemed to be the average of the daily closing prices per
share of such Common Stock for the ten (10) consecutive Trading
Days immediately following such date; provided, however, that in
the event that the Current Market Price per share of the Common
Stock is determined during a period following the announcement by
the issuer of such Common Stock of (i) a dividend or distribution
on such Common Stock payable in shares of such Common Stock or
securities convertible into shares of such Common Stock (other
than the Rights), or (ii) any subdivision, combination or
reclassification of such Common Stock, and prior to the
expiration of the requisite thirty (30) Trading Day or ten (10)
Trading Day period, as set forth above, after the tax-dividend
date for such dividend or distribution, or the record date for
such subdivision, combination or reclassification, then, and in
each such case, the Current Market Price shall be properly
adjusted to take into account tax-dividend trading. The closing
price for each day shall be the last sale price, regular way, or,
in case no such sale takes place on such day, the average of the
closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting
system with respect to securities listed on the principal
national securities exchange on which the shares of Common Stock
are listed or admitted to trading or, if the shares of Common
Stock are not listed or admitted to trading on any national
securities exchange, the last quoted price or, if not so quoted,
the average of the high bid and low asked prices in the over-the-
counter market, as reported by the National Association of
Securities Dealers, Inc., Automated Quotation System or such
other system then in use, or, if on any such date the shares of
Common Stock are not quoted by any such organization, the average
of the Closing bid and asked prices as furnished by a
professional market maker making a market in the Common Stock
selected by the Board. If on any such date no market maker is
making a market in the Common Stock, the fair value of such stock
on such date as determined in good faith by the Board shall be
used. The term "Trading Day" shall mean a day on which the
principal national securities exchange on which the shares of
Common Stock are listed or admitted to trading is open for the
transaction of business or, if the shares of Common Stock are not
listed or admitted to trading on any national securities
exchange, a Business Day. If the Common Stock is not publicly
held or not so listed or traded, Current Market Price per share
shall mean the fair value per share as determined in good faith
by the Board whose determination shall be conclusive for all
purposes. The Current Market Price of any fraction of a share of
Common Stock hereunder shall be determined by multiplying the
Current Market Price per share of Common Stock, determined in
accordance with this paragraph, by such fraction.
(e) Anything herein to the contrary notwithstanding, no
adjustment in the Purchase Price shall be required unless such
adjustment would require an increase or decrease of at least one
percent (1%) in the Purchase Price; provided, however, that any
adjustments which by reason of this Section ll(e) are not
required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this
Section 11 shall be made to the nearest cent or to the nearest
ten-thousandth of a share, as the case may be. Notwithstanding
the first sentence of this Section ll(e), any adjustment required
by this Section 11 shall be made no later than the earlier of (I)
three (3) years from the date of the transaction which mandates
such adjustment, or (ii) the Expiration Date.
(f) If as a result of an adjustment made pursuant to Section
ll(a)(ii) or Section 13(a) hereof, the holder of any Right
thereafter exercised shall become entitled to receive any shares
of capital stock other than Common Stock, thereafter the number
of such other shares so receivable upon exercise of any Right and
the Purchase Price thereof shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Common Stock
contained in Sections ll(a), (b), (c), (e), (g), (h), (I), (j),
(k) and (m), and the provisions of Sections 7, 9, 10, 13 and 14
hereof with respect to the Common Stock shall apply on like terms
to any such other shares.
(g) All Rights originally issued by the Company subsequent
to any adjustment made to the Purchase Price hereunder shall
evidence the right to purchase, at the adjusted Purchase Price,
that number of shares of Common Stock purchasable from time to
time hereunder (or, if applicable, preferred stock) upon exercise
of the Rights, all subject to further adjustment as provided
herein.
(h) Unless the Company shall have exercised its election as
provided in Section ll(I), upon each adjustment of the Purchase
Price as a result of the calculations made in Sections ll(b) and
(c), each Right outstanding immediately prior to the making of
such adjustment shall thereafter evidence the right to purchase,
at the adjusted Purchase Price, that number of shares of Common
Stock (calculated to the nearest ten-thousandth) obtained by (i)
multiplying (x) the number of shares covered by a Right
immediately prior to this adjustment, by (y) the Purchase Price
in effect immediately prior to such adjustment of the Purchase
Price, and (ii) dividing the product so obtained by the Purchase
Price in effect immediately after such adjustment of the Purchase
Price.
(i) The Company may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of Rights,
in lieu of any adjustment in the number of shares of Common Stock
purchasable upon the exercise of a Right. In that event, each of
the Rights outstanding after the adjustment in the number of
Rights shall be exercisable for that number of shares of Common
Stock for which a Right was exercisable immediately prior to such
adjustment; and each Right held of record prior to such
adjustment of the number of Rights shall become the number of
Rights (calculated to the nearest one-ten-thousandth) obtained by
dividing the Purchase Price in effect immediately prior to
adjustment of the Purchase Price by the Purchase Price in effect
immediately after adjustment of the Purchase Price. The Company
shall make a public announcement of its election to adjust the
number of Rights, indicating the record date for the adjustment,
and, if known at the time, the amount of the adjustment to be
made. This record date may be the date on which the Purchase
Price is adjusted or any day thereafter, but, if the Rights
Certificates have been issued, shall be at least ten (10) days
later than the date of the public announcement. If Rights
Certificates have been issued, upon each adjustment of the number
of Rights pursuant to this Section ll(I), the Company shall, as
promptly as practicable, cause to be distributed to holders of
record of Rights Certificates on such record date Rights
Certificates evidencing, subject to Section 14 hereof, the
additional Rights to which such holders shall be entitled as a
result of such adjustment, or, at the option of the Company,
shall cause to be distributed to such holders of record in
substitution and replacement for the Rights Certificates held by
such holders prior to the date of adjustment, and upon surrender
thereof, if required by the Company, new Rights Certificates
evidencing all the Rights to which such holders shall be entitled
after such adjustment. All costs associated with such
adjustments, including without limitation any taxes required to
be paid on account of such adjustment, shall be borne by the
Company. Rights Certificates so to be distributed shall be issued
and executed in the manner provided for herein (and may bear, at
the option of the Company, the adjusted Purchase Price) and shall
be registered in the names of the holders of record of Rights
Certificates on the record date specified in the public
announcement.
(j) Irrespective of any adjustment or change in the Purchase
Price or the stock issuable upon the exercise of the Rights, the
Rights Certificates theretofore and thereafter issued may
continue to express the Purchase Price per share of Common Stock
and the shares of Common Stock which were expressed in the
initial Rights Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below the then par value, if any, of
the shares of Common Stock issuable upon exercise of the Rights,
the Company shall take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Company
may validly and loyally issue fully paid and
nonassessable s hares of Common Stock at such adjusted Purchase
Price.
(1) In any case in which this Section 11 shall require that
an adjustment in the Purchase Price be made effective as of a
record date for a specified event, the Company may elect to defer
until the occurrence of such event the issuance to the holder of
any Right exercised after such record date the shares of Common
Stock and other capital stock or securities of the Company, if
any, issuable upon such exercise over and above the shares of
Common Stock and other capital stock or securities of the
Company, if any, issuable upon such exercise on the basis of the
Purchase Price in effect prior to such adjustment; provided,
however, that the Company shall deliver to such holder a due bill
or other appropriate instrument evidencing such holder's right to
receive such additional shares (fractional or otherwise) or
securities upon the occurrence of the event requiring such
adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to the
extent that in its good faith judgment the Board shall determine
to be advisable in order that any (i) consolidation or
subdivision of the Common Stock, (ii) issuance wholly for cash of
any shares of Common Stock at less than the Current Market Price,
(iii) issuance wholly for cash of shares of Common Stock or
securities which by their terms are convertible into or
exchangeable for shares of Common Stock, (iv) stock dividends or
(v) issuance of rights, options or warrants referred to in this
Section 11, hereafter made by the Company to holders of its
Common Stock shall not be taxable to such stockholders.
(n) The Company shall not, at any time after the
Distribution Date, (i) consolidate with any other Person (other
than a Subsidiary of the Company in a transaction which complies
with Section 11 hereof), (ii) merge with or into any other Person
(other than a Subsidiary of the Company in a transaction which
complies with Section 11 hereof), or (iii) sell or transfer (or
permit any Subsidiary to sell or transfer), in one transaction or
a series of related transactions, assets or earning power
aggregating more than 50% of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to any other
Person or Persons (other than the Company and/or any of its
Subsidiaries in one or more transactions each of which complies
with Section 11 hereof), if (x) at the time of or immediately
after such consolidation, merger or sale there are any rights,
warrants or other instruments or securities outstanding or
agreements in effect which would substantially diminish or
otherwise eliminate the benefits intended to be afforded by the
Rights to the holders of the Rights or (y) prior
to, simultaneously with or immediately after such consolidation,
merger or sale, the stockholders of the Person who constitutes,
or would constitute, the "Principal Party" for purposes of
Section 13(a) hereof shall have received a distribution of Rights
previously owned by such Person or any of its Affiliates and
Associates.
(o) After the Distribution Date, the Company shall not,
except as permitted by Section 20 or Section 23 hereof, take (or
permit any Subsidiary to take) any action if at the time such
action is taken it is reasonably foreseeable that such action
will diminish substantially or otherwise eliminate the benefits
intended to be afforded by the Rights.
(p) Anything in this Plan to the contrary notwithstanding,
in the event that the Company shall at any time after the Rights
Dividend Declaration Date and prior to the Distribution Date (i)
declare a dividend on the outstanding shares of Common Stock,
(ii) subdivide the outstanding shares of Common Stock, or (iii)
combine the outstanding shares of Common Stock into a smaller
number of shares, the number of Rights associated with each share
of Common Stock then outstanding, or issued or delivered
thereafter but prior to the Distribution Date, shall be
proportionately adjusted so that the number of Rights thereafter
associated with each share of Common Stock following any such
event shall equal the result obtained by multiplying the number
of Rights associated with each share of Common Stock immediately
prior to such event by a fraction the numerator of which shall be
the total number of shares of Common Stock outstanding
immediately prior to the occurrence of the event and the
denominator of which shall be the total number of shares of
Common Stock outstanding immediately following the occurrence of
such event.
Section 12. Certificate of Adjusted Purchase Price or Number
of Shares.
Whenever an adjustment is made as provided in Section 11 and
Section 13 hereof, the Company shall (a) promptly prepare a
certificate setting forth such adjustment and a brief statement
of the facts accounting for such adjustment, (b) promptly file
with the Rights Agent, if any, or if no Rights Agent has been
appointed, with the Company's Secretary, and with each transfer
agent for the Common Stock, a copy of such certificate, and
mail a brief summary thereof to each holder of a Rights
Certificate (or, if prior to the Distribution Date, to each
holder of a certificate representing shares of Common Stock) in
accordance with Section 22 hereof. The Rights Agent, if any,
shall be fully protected in relying on any such certificate and
on any adjustment therein contained and shall not be deemed to
have knowledge of any such adjustment unless and until it shall
have received such certificate.
Section 13. Consolidation, Merger or Sale or Transfer of
Assets or Earning Power.
(a) In the event that, following or simultaneously with the
Distribution Date, directly or indirectly, without the consent of
a majority of the Disinterested Directors, (x) the Company shall
consolidate with, or merge with and into, any other Person (other
than a Subsidiary of the Company in a transaction which complies
with Section 11 hereof), and the Company shall not be the
continuing or surviving corporation of such consolidation or
merger, (y) any Person (other than a Subsidiary of the Company in
a transaction which complies with Section 11 hereof) shall
consolidate with, or merge with or into, the Company, and the
Company shall be the continuing or surviving corporation of such
consolidation or merger and, in connection with such
consolidation or merger, all or part of the outstanding shares of
Common Stock shall be changed into or exchanged for stock or
other securities of any other Person or cash or any other
property, or (z) the Company shall sell or otherwise transfer (or
one or more of its Subsidiaries shall sell or otherwise
transfer), in one transaction or a series of related
transactions, assets or earning power aggregating more than 50%
of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any Person or Persons (other
than the Company or any Subsidiary of the Company in one or more
transactions, each of which complies with Section 11 hereof),
then, and in each such case (except as may be contemplated by
Section 13(d) hereof), proper provision shall be made so that:
(i) each holder of a Right, except as provided in Section 7(e)
hereof, shall thereafter have the right to receive, upon the
exercise thereof at the then current Purchase Price in accordance
with the terms of this Plan, such number of validly authorized
and issued, fully paid, non-assessable and freely traceable
shares of Common Stock of the Principal Party, not subject to any
liens, encumbrances, rights of first refusal or other adverse
claims, as shall be equal to the result obtained by (1)
multiplying the then current Purchase Price by the number of
shares of Common Stock (or, if applicable, preferred stock) for
which a Right is exercisable immediately prior to the first
occurrence of a Section 13 Event (or, if a Section ll(a)(ii)
Event has occurred prior to the first occurrence of a Section 13
Event, multiplying the number of shares of Common Stock (or, if
applicable, preferred stock) for which a Right was exercisable
immediately prior to the first occurrence of a Section ll(a)(ii)
Event by the Purchase Price in effect immediately prior to such
first occurrence), and dividing that product (which, following
the first occurrence of a Section 13 Event, shall be referred to
as the "Purchase Price" for each Right and for all purposes of
this Plan) by (2) 50% of the Current Market Price per share of
the Common Stock of such Principal Party on the date of
consummation of such Section 13 Event; (ii) such Principal Party
shall thereafter be liable for, and shall assume, by virtue of
such Section 13 Event, all the obligations and duties of the
Company pursuant to this Plan; (iii) the term "Company" shall
thereafter be deemed to refer to such Principal Party, it being
specifically intended that the provisions of Section 11 hereof
shall apply only to such Principal Party following the first
occurrence of a Section 13 Event; (iv) such Principal Party shall
take such steps (including, but not limited to, the reservation
of a sufficient number of shares of its Common Stock) in
connection with the consummation of any such transaction as may
be necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in
relation to its shares of Common Stock thereafter deliverable
upon the exercise of the Rights; and (v) the provisions of
Section ll(a)(ii) hereof shall be of no effect following the
first occurrence of any Section 13 Event.
(b) "Principal Party" shall mean:
(i) in the case of any transaction described in clause (x)
or (y) of the first sentence of Section 13(a), the Person that is
the issuer of any securities into which shares of Common Stock of
the Company are converted in such merger or consolidation, and if
no securities are so issued, the Person that is the other party
to such merger or consolidation; and
(ii) in the case of any transaction described in clause (z)
of the first sentence of Section 13(a), the Person that is the
party receiving the greatest portion of the assets or earning
power transferred pursuant to such transaction or transactions;
provided, however, that in any such case, (1) if the Common Stock
of such Person is not at such time and has not been continuously
over the preceding twelve (12) month period registered under
Section 12 of the Exchange Act, and such Person is a direct or
indirect Subsidiary of another Person the Common Stock of which
is and has been so registered, "Principal Party" shall refer to
such other Person; and (2) in case such Person is a Subsidiary,
directly or indirectly, of more than one Person, the Common
Stocks of two or more of which are and have been so registered,
"Principal Party" shall refer to whichever of such Persons is the
issuer of the Common Stock having the greatest aggregate market
value.
(c) The Company shall not consummate any such consolidation,
merger, sale or transfer unless the Principal Party shall have a
sufficient number of authorized shares of its Common Stock which
have not been issued or reserved for issuance to permit the
exercise in full of the Rights in accordance with this Section 13
and unless prior thereto the Company and such Principal Party
shall have executed and delivered to the Rights Agent, if any, or
if no Rights Agent shall have been appointed,
to the Company's Secretary, a supplemental agreement,
satisfactory in form and substance to a majority of the
Disinterested Directors, providing for the terms set forth in
Paragraphs (a) and (b) of this Section 13 and further providing
that, as soon as practicable after the date of any consolidation,
merger or sale of assets mentioned in paragraph (a) of this
Section 13, the Principal Party:
(i) will 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 Expiration Date; and
(ii) will deliver to holders of the Rights historical
financial statements for the Principal Party and each of its
Affiliates which comply in all respects with the requirements for
registration on Form 10 under the Exchange Act.
The provisions of this Section 13 shall similarly apply to
successive mergers or consolidations or sales or other transfers.
In the event that a Section 13 Event shall occur at any time
after the occurrence of a Section ll(a)(ii) Event, the Rights
which have not theretofore been exercised shall thereafter become
exercisable in the manner described in Section 13(a).
(d) Notwithstanding anything in this Plan to the contrary,
Section 13 shall not be applicable to a transaction described in
subparagraphs (x) and (y) of Section 13(a) if (i) such
transaction is consummated with a Person or Persons (or a wholly
owned subsidiary of any such Person or Persons) who acquired
shares of Common Stock pursuant to a Fair Value Offer, (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 Fair Value Offer, and (iii) the form of
consideration being offered to the remaining holders of shares of
Common Stock pursuant to such transaction is cash. Upon
consummation of any such transaction contemplated by this Section
13(d), all Rights hereunder shall expire.
(e) The provisions of this Section 13 shall be applicable to
a transaction described in subparagraphs (x), (y), and (z) of
Section 13(a) regardless of the business form of the Principal
Party (e.g., corporation, partnership, or other form). In the
event that the Principal Party is an entity other than a
corporation, the term "Common Stock," as used in reference to the
Principal Party in this Section 13 or otherwise, shall be
construed to refer to the equity securities or other equity
interest having power to control or direct the management of, or
representing the fundamental economic interest in, such Principal
Party.
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of
Rights or to distribute Rights Certificates which evidence
fractional Rights. In lieu of such fractional Rights, there may
be paid to the registered holders of the Rights Certificates with
regard to which such fractional Rights would otherwise be
issuable an amount in cash equal to the same fraction of the
current market value of a whole Right. For purposes of this
Section 14(a), the current market value of a whole Right shall be
the closing price of the Rights for the Trading Day immediately
prior to the date on which such fractional Rights would have been
otherwise issuable. The closing price of the Rights for any day
shall be the last sale price, regular way, or, in case no such
sale takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with respect
to securities listed 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 the National Association
of Securities Dealers, Inc. Automated Quotation System 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
selected by the Board making a market in the Rights. If on any
such date no such market maker is making a market in the Rights,
then the fair value of the Rights on such date as determined in
good faith by the Board shall be used.
(b) The Company shall not be required to issue fractions of
shares of Common Stock (or other securities) upon exercise of the
Rights or to distribute certificates which evidence fractional
shares of Common Stock (or other securities). In lieu of
fractional shares of Common Stock (or other securities), the
Company may pay to the registered holders of Rights Certificates
at the time such Rights are exercised as herein provided an
amount in cash equal to the same fraction of the current market
value of a share of Common Stock (or other securities). For
purposes of this Section 14(b), the current market value of one
share of Common Stock shall be the closing price per share of
Common Stock (as determined pursuant to Section ll(d) hereof) for
the Trading Day immediately prior to the date of such exercise,
and the current market value of any other securities shall be
determined utilizing the principles of Section ll(d) hereof as
applied by the Board in its sole discretion.
(c) The holders of Rights by the acceptance of the Rights
expressly waive any right to receive any fractional Rights and/or
any fractional shares upon exercise of a Right.
Section 15. Rights of Action.
All rights of action in respect of this Plan are vested in
the respective registered holders of the Rights Certificates
(and, prior to the Distribution Date, the registered holders of
the Common Stock); and any registered holder of any Rights
Certificate (or, prior to the Distribution Date, of the Common
Stock), without the consent of the holder of any other Rights
Certificate (or, prior to the Distribution Date, of the Common
Stock), may, in such holder's own behalf and for such holder's
own benefit, enforce, and may institute and maintain any suit,
action or proceeding against the Company to enforce, or otherwise
act in respect of, such holder's right to exercise the Rights
evidenced by such Rights Certificate in the manner provided in
such Rights Certificate and in this Plan. Without limiting the
foregoing or any remedies available to the holders of Rights, it
is specifically acknowledged that the holders of Rights would not
have an adequate remedy at law for any breach of this Plan and
shall be entitled to specific performance of the obligations
hereunder and injunctive relief against actual or threatened
violations of the obligations hereunder of any Person subject to
this Plan.
Section 16. Agreement of Rights Holders.
Every holder of a Right by accepting the same consents and
agrees with the Company and with every other holder of a Right
that:
(a) Prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of Common
Stock;
(b) After the Distribution Date, the Rights Certificates are
transferable only on the registry books of the Company, if
surrendered at the principal office of the Company, or, if a
Rights Agent is appointed by the Company hereunder, only on the
registry books of said Rights Agent, if surrendered at the
principal stockholder services office or offices of the Rights
Agent designated for such purposes, in either case duly endorsed
or accompanied by a proper instrument of transfer and with the
appropriate forms and certificates fully executed;
(c) Subject to Section 6(a) and Section 7(f)) hereof, the
Company and the Rights Agent, if any, may deem and treat the
person in whose name a Rights Certificate (or, prior to the
Distribution Date, the associated Common Stock certificate) is
registered as the absolute owner thereof and of the Rights
evidenced thereby (notwithstanding any notations of ownership or
writing on the Rights Certificates or the associated Common Stock
certificate made by anyone other than the Company or any Rights
Agent) for all purposes whatsoever, and neither the Company nor
any Rights Agent appointed by the Company, subject to the last
sentence of Section 7(e) hereof, shall be required to be affected
by any notice to the contrary; and
(d) Notwithstanding anything in this Plan to the contrary,
neither the Company nor any Rights Agent appointed by the Company
shall have any liability to any holder of a Right or other Person
as a result of its inability to perform any of its obligations
under this Plan by reason of any preliminary or permanent
injunction or other order, decree or ruling issued by a court of
competent jurisdiction or by a governmental, regulatory or
administrative agency or commission, or any statute, rule,
regulation or executive order promulgated or enacted by any
governmental authority, prohibiting or otherwise restraining
performance of such obligation; provided, however, the Company
must use its best efforts to have any such order, decree or
ruling lifted or otherwise overturned as soon as possible.
Section 17. Rights Certificate Holder Not Deemed a
Stockholder.
No holder, as such, of any Rights Certificate shall be
entitled to vote, receive dividends or be deemed for any purpose
the holder of the number of shares of Common Stock or any other
securities of the Company which may at any time be issuable on
the exercise of the Rights represented thereby, nor shall
anything contained herein or in any Rights Certificate be
construed to confer upon the holder of any Rights Certificate, as
such, any of the rights of a stockholder 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 21 hereof), or to receive dividends or subscription
rights or otherwise, until the Right or Rights evidenced by such
Rights Certificate shall have been exercised in accordance with
the provisions hereof.
Section 18. Indemnification of Corporate Officers.
(a) The Company shall indemnify its officers for and hold
them harmless against any loss, liability or expense incurred
without negligence, bad faith or willful misconduct on
the part of such officers for anything done or omitted by such
officers in connection with the acceptance and administration of
this Plan, including the costs and expenses of defending against
any claim of liability arising therefrom, directly or indirectly,
and will promptly reimburse such officers for any legal or other
expenses reasonably incurred in investigating or defending any
such 1066, expense, claim, damage or liability.
(b) The Company' 6 officers shall be protected by the
indemnity provided in this Section 18 and shall incur no
liability for or in respect of any action taken, suffered or
omitted by any of them in connection with their administration of
this Plan in reliance upon any Rights Certificate or certificate
for Common Stock or for other securities of the Company,
instrument or assignment of transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent,
certificate, statement or other paper or document believed by
such officer to be genuine and to be signed, executed and, where
necessary, verified or acknowledged by the proper Person or
Persons.
Section 19. Issuance of New Rights Certificates.
Notwithstanding any of the provisions of this Plan or of the
Rights to the contrary, the Company may, at its option, issue new
Rights Certificates evidencing Rights in such form as may be
approved by the Board to reflect any adjustment or change in the
Purchase Price and the number or kind or class of shares or other
securities or property purchasable under the Rights Certificates
made in accordance with the provisions of this Plan. In addition,
in connection with the issuance or sale of shares of Common Stock
following the Distribution Date and prior to the redemption or
expiration of the Rights, the Company (a) shall, with respect to
shares of Common Stock so issued or sold pursuant to the exercise
of stock options, or under any employee benefit plan or
arrangement, or upon the exercise, conversion or exchange of
securities hereinafter issued by the Company, and (b) may, in any
other case, if deemed necessary or appropriate by the Board,
issue Rights Certificates representing the appropriate number of
Rights in connection with such issuance or sale; provided,
however, that (i) no such Rights Certificate shall be issued if,
and to the extent that, the Company shall be advised by counsel
that such issuance would create a significant risk of material
adverse tax consequences to the Company or the Person to whom
such Rights Certificate would be issued, and (ii) no such Rights
Certificate shall be issued if, and to the extent that,
appropriate adjustment shall otherwise have been made in lieu of
the issuance thereof.
Section 20. Redemption and Termination; Exchange.
(a) The Disinterested Directors then in office
may. at any time prior to the Final Expiration Date, at their
option, upon the affirmative vote or written consent of not less
than a majority of such Disinterested Directors, redeem all but
not less than all of the then outstanding Rights at a redemption
price of $.01 per Right, as such amount may be appropriately
adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such redemption
price being hereinafter referred to as the "Redemption Price").
The Company may, at its option, pay the Redemption Price in cash,
shares of Common Stock (based on the Current Market Price of the
Common Stock at the time of redemption) or any other form of
consideration deemed appropriate by a majority of the
Disinterested Directors.
(b) Immediately upon the taking of action by a majority of
the Disinterested Directors ordering the redemption of the
Rights, and without any further action and without any notice,
the right to exercise the Rights will terminate and the only
right thereafter of the holders of Rights shall be to receive the
Redemption Price (without the payment of any interest thereon)
for each Right so held. Promptly after the taking of action by a
majority of the Disinterested Directors ordering the redemption
of the Rights, the Company shall give notice of such redemption
to the holders of the then outstanding Rights by mailing such
notice to all such holders at each holder's last address as it
appears upon the registry books of the Company. Any notice which
is mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. Each such notice
of redemption will state the method by which the payment of the
Redemption Price will be made.
(c) The Board may, at its option, at any time after the
Distribution Date, 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(e) hereof)
for Common Stock at an exchange ratio of one share of Common
Stock per Right, appropriately adjusted to reflect any stock
split, stock dividend or similar transaction occurring after the
Rights Dividend Declaration Date(such number of shares of Common
Stock issuable in exchange for one Right being referred to herein
as the "Exchange Shares"),subject to payment by exchanging
holders of Rights of such amount, if any, as may, in the opinion
of the Company's legal counsel, be necessary in order that the
Company may validly and legally thereupon issue fully paid and
nonassessable shares of Common Stock. Notwithstanding the
foregoing, the Board shall not be empowered to effect such
exchange at any time after any Acquiring Person, together with
all Affiliates and Associates of such Person, becomes the
beneficial owner of 50% or more of the Common Stock then
outstanding.
(d) Immediately upon the action of the Board ordering the
exchange of any Rights pursuant to subsection (c) of this Section
20, without any further action and without any notice the right
to exercise such Rights shall terminate and the only right
thereafter of a holder of such Rights shall be to receive the
Exchange Shares. The Company shall promptly give public notice
of any such exchange; provided, however, that the failure to
give, or any defect in, such notice shall not affect the validity
of such exchange. The Company promptly shall mail a notice of
any such exchange to all of the holders of such Rights in
accordance with Section 22 hereof. Each such notice of exchange
will 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(e) hereof) held by each holder of
Rights.
(e) 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 20, the Company shall either take
such action as shall be necessary to authorize additional shares
of Common Stock, or take such action specified in Section
11(a)(iii) hereof as shall be necessary to substitute for each
Exchange Share other consideration having value equal to the
Current Market Price per share of the Common Stock as of the date
such substitution is authorized by the Board.
Section 21. Notice of Certain Events.
(a) In case the Company shall propose, at any time after the
Distribution Date, (i) to pay any dividend payable in shares of
any class to the holders of Common Stock or to make any other
distribution to the holders of Common Stock (other than a regular
quarterly cash dividend out of earnings or retained earnings of
the Company), or (ii) to offer to the holders of Common Stock
rights or warrants to subscribe for or to purchase any additional
shares of Common Stock or shares of stock of any class or any
other securities, rights or options, or (iii) to effect any
reclassification of its Common Stock (other than a
reclassification involving only the subdivision of outstanding
shares of Common Stock), or (iv) to effect any consolidation or
merger into or with any other Person (other than a Subsidiary of
the Company in a transaction which complies with Section ll(o)
hereof), or to effect any sale or other transfer (or to permit
one or more of its Subsidiaries to effect any sale or other
transfer), in one transaction or a series of related
transactions, of more than 50% of the assets or earning power of
the Company and its Subsidiaries (taken as a whole) to
any other Person or Persons (other than the Company and/or any of
its Subsidiaries in one or more transactions each of which
complies with Section ll hereof), or (v) to effect the
liquidation, dissolution or winding up of the Company, then, in
each such case, the Company shall give to each holder of a Rights
Certificate, to the extent feasible and, in accordance with
Section 22 hereof, a notice of such proposed action, which shall
specify the record date for the purposes of such stock dividend,
distribution of rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution, or winding up is to take place and the
date of participation therein by the holders of the shares of
Common Stock, if any such date is to be fixed, and such notice
shall be so given in the case of any action covered by clause (I)
or (ii) above at least twenty (20) days prior to the record date
for determining holders of the shares of Common Stock for
purposes of such action, and in the case of any such other
action, at least twenty (20) days prior to the date of the taking
of such proposed action or the date of participation therein by
the holders of the shares of Common Stock, whichever shall be the
earlier.
(b) If any event set forth in Section ll(a)(ii) hereof shall
occur, then, (i) the Company shall as soon as practicable
thereafter give to each holder of a Rights Certificate, to the
extent feasible and in accordance with Section 22 hereof, a
notice of the occurrence of such event, which shall specify the
event and the consequences of the event to holders of Rights
under Section ll(a)(ii) hereof, and (ii) all references in the
preceding paragraph to Common Stock shall, to the extent
appropriate, also be deemed thereafter to refer to other
securities.
Section 22. Notices.
Notices or demands authorized by this Plan to be given or
made to or on the Company shall be sufficiently given or made if
sent by first class mail, postage prepaid, addressed (until
another address is sent as provided below to the holders of the
Rights) as follows:
EMS Technologies, Inc.
660 Engineering Drive
Technology Park/Atlanta
Norcross, Georgia 30092
Attention: Chairman of the Board of Directors
Notices or demands authorized by this Plan to be given or
made to the holder of any Rights Certificate (or, if prior to the
Distribution Date, to the holder of certificates representing
shares of Common Stock) shall be sufficiently given or made if
sent by first class mail, postage prepaid, addressed to such
holder at the address of such holder as shown on the registry
books of the Company.
Section 23. Supplements and Amendment; Substituted Plan.
Prior to the Distribution Date, the Company may supplement
or amend any provision of this Plan, terminate this Plan or adopt
a new rights plan in substitution for this Plan and all Rights
outstanding hereunder (in which case this Plan and all such
Rights shall thereafter become null and void), without the
approval of any holders of certificates representing shares of
Common Stock. From and after the Distribution Date, the
Disinterested Directors may supplement or amend this Plan, or
adopt a new rights plan in substitution for this Plan and all
Rights outstanding hereunder (in which case this Plan and all
such Rights shall thereafter become null and void), without the
approval of any holders of Rights Certificates in order (i) to
cure any ambiguity, (ii) to correct or supplement any provision
contained herein which may be defective or inconsistent with any
other provisions herein, (iii) to shorten or lengthen any time
period hereunder, (iv) to effect compliance with, or take
advantage of, any changes in law affecting the legality or
enforceability of plans or arrangements such as this Plan, or (v)
to change or supplement the provisions hereunder in any other
manner which the Disinterested Directors may deem necessary or
desirable, including without limitation the addition of other
events requiring adjustment to the Rights under Section ll(a)(ii)
or 13 or procedures relating to the redemption of the Rights,
which supplement or amendment shall not adversely affect the
interests of the holders of Rights Certificates (other than an
Acquiring Person or an Affiliate or Associate of an Acquiring
Person); provided, this Plan may not be so supplemented or
amended, and a new rights plan may not be so adopted in
substitution for this Plan, to lengthen, pursuant to clause (iii)
of this sentence, any time period (other than the period to the
Final Expiration Date) unless such lengthening is for the purpose
of protecting, enhancing or clarifying the rights of, and/or the
benefits to, the holders of Rights (other than an Acquiring
Person or an Affiliate or Associate of an Acquiring Person).
Notwithstanding anything contained in this Plan to the contrary,
no supplement or amendment or substituted plan shall be made or
adopted which changes the Redemption Price, changes the Final
Expiration Date to an earlier date, reduces the Purchase Price,
or reduces the number of shares of Common Stock for which a Right
is exercisable, except that any such amendment may substitute
preferred stock for the Common Stock issuable upon exercise of
the Right if the value of the preferred stock so substituted with
respect to each Right shall equal, in the sole discretion of a
majority of the Disinterested Directors, the then Current Market
Value of the Common Stock then issuable upon exercise of each
Right, and any such amendment or substituted plan effecting such
substitution may amend any such provision of this Plan, including
without limitation the adjustment provisions of Section 11, to
reflect appropriately such substitution, or to restate this Plan
in its entirety to reflect appropriately such substitution. Prior
to the Distribution Date, the interests of the holders of Rights
shall be deemed coincident with the interests of the holders of
Common Stock.
Section 24. Successors.
All the covenants and provisions of this Plan by or for the
benefit of the Company shall bind and inure to the benefit of its
successors and assigns hereunder.
Section 25. Determinations and Actions by the Board of
Directors, etc.
For all purposes of this Plan, any calculation of the number
of shares of Common Stock outstanding at any particular time,
including for purposes of determining the particular percentage
of such outstanding shares of Common Stock of which any Person is
the Beneficial Owner, shall be made in accordance with the last
sentence of Rule 13d-3(d)(1)(I) of the General Rules and
Regulations under the Exchange Act, subject in all events to the
provisions of Section l(e) hereof including specifically, the
last proviso thereof. The Board (or, as set forth herein, certain
specified members thereof) shall have the exclusive power and
authority to administer this Plan and to exercise all rights and
powers specifically granted to the Board (or, as set forth
herein, certain specified members thereof) or to the Company, or
as may be necessary or advisable in the administration of this
Plan, including, without limitation,- the right and power to (i)
interpret the provisions of this Plan, and (ii) make all
determinations deemed necessary or advisable for the
administration of this Plan (including but not limited to a
determination to redeem or not redeem the Rights, to consent to a
transaction in which a Person becomes an Acquiring Person, to
amend the Plan or to remit the Substitute Consideration or Spread
payable). 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 (or, as set forth herein, certain specified members
thereof) in good faith, shall (x) be final, conclusive and
binding on the Company, the holders of the Rights and all other
parties, and (y) not subject the Board (or, as set forth herein,
certain specified members thereof) to any liability to the
holders of the Rights.
Section 26. Establishment of Fund for Disinterested
Directors.
The Board may, at any time it deems appropriate, establish
or set aside one or more funds, whether in trust, escrow or
otherwise (and regardless of whether such fund is combined with
any other fund established or set aside by the Company), for the
purpose of assuring that adequate resources are available to any
Disinterested Director in order to enable such Disinterested
Director to carry out his or her prescribed functions under this
Plan and to fulfill his or her fiduciary obligations to
stockholders of the Company.
Section 27. Benefits of this Plan.
Nothing in this Plan shall be construed to give to any
Person other than the Company and the registered holders of the
Rights Certificates (and, prior to the Distribution Date,
registered holders of the Common Stock) any legal or equitable
right, remedy or claim under this Plan; but this Plan shall be
for the sole and exclusive benefit of the Company and the
registered holders of the Rights Certificates (and, prior to the
Distribution Date, registered holders of the Common Stock).
Section 28. Severability.
If any term, provision, covenant or restriction of this Plan
is held by a court of competent jurisdiction or other authority
to be invalid, void or unenforceable (including without
limitation the last proviso to Section l(e)), the remainder of
the terms, provisions, covenants and restrictions of this Plan
shall remain in full force and effect and shall in no way be
affected, impaired or invalidated; provided, however, that in the
event of such a holding by such court or authority, this Plan may
be amended to take into account such holding including by way of
illustration but not limitation, an amendment raising the
percentage of beneficial ownership specified in Section l(a) or
Section ll(a)(ii). Without limiting the foregoing provisions of
this Section 27, if any provisions of this Plan requiring that a
determination be made by less than the entire Board (or at a time
or with the concurrence of a group of directors consisting less
than the entire Board) is held by a court of competent
jurisdiction or other authority to be invalid, void or
unenforceable, such determination shall no longer be subject to
determination by such directors constituting less than the entire
Board, but shall instead be made in the best interests of the
holders of the Rights and with a view to effecting the purposes
and intent of this Plan by a court of competent jurisdiction, or,
if such court determines it is impermissible or inappropriate to
discharge such function, then such determination shall be made by
the entire Board in good faith, in accordance with applicable law
and the Company's articles of incorporation and bylaws, in the
best interests of the holders of the Rights, and with a view to
effecting the purposes and intent of this Plan.
Section 29. Governing Law.
This Plan, each Right and each Rights Certificate issued
hereunder shall be deemed to be a contract made under the laws of
the State of Georgia and for all purposes shall be governed by
and construed in accordance with the laws of such State
applicable to contracts made and to be performed entirely within
such State.
Section 30. Descriptive Headings.
Descriptive headings of the several Sections of this Plan
are inserted for convenience only and shall not control or affect
the meaning or construction of any of the provisions hereof.
EXHIBIT A
[Form of Face Side of Rights Certificate]
Certificate No. R- Rights
NOT EXERCISABLE AFTER AUGUST 6, 2009, OR EARLIER IF REDEEMED BY
THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION
OF THE COMPANY, AT $.01 PER RIGHT ON THE TERMS SET FORTH IN THE
STOCKHOLDER RIGHTS PLAN. UNDER CERTAIN CIRCUMSTANCES, RIGHTS
BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS
DEFINED IN THE RIGHTS PLAN) AND ANY SUBSEQUENT HOLDER OF SUCH
RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS
RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO
WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF
AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE STOCKHOLDER
RIGHTS PLAN). ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS
REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES
SPECIFIED IN SECTION 7(e) OF SUCH PLAN.]*
Rights Certificate
EMS TECHNOLOGIES, 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 Stockholder Rights Plan, dated
as of April 6, 1999 (the "Rights Plan"), of EMS Technologies,
Inc., a Georgia corporation (the "Company"), to purchase from the
Company at any time prior to 5:00 P.M. Eastern time on August 6,
2009, at the principal executive office of the Company or the
offices of the Rights Agent, if any, designated for such purpose,
one fully paid and nonassessable share of common stock, par value
$.10 per share (the "Common Stock"), of the Company, at a
purchase price of $45.00 per Right (the ''Purchase Price"), upon
presentation and surrender of this Rights Certificate with a Form
of Election to Purchase and related Certificate duly executed.
The number of Rights evidenced by this Rights Certificate (and
the amount of securities constituting a Right which may be
purchased upon exercise thereof) set forth above, and the
Purchase Price set forth above, are the amount of securities
constituting a Right and Purchase Price as of April 6, 1999,
based on the Common Stock an constituted as of such date.
* The portion of the legend in brackets shall be inserted only if
applicable and shall replace the preceding sentence.
In the circumstances and subject to the conditions specified
in the Rights Plan, the Company may (i) at the sole discretion of
the Disinterested Directors (as defined in the Rights Plan),
permit or require the Rights to be exercised for 50% of the
shares otherwise purchasable but without payment of the Purchase
Price (except to the extent of any requirements as to payment of
par value), and (ii) at the sole discretion of the Board of
Directors, exchange each Right (other than those that have become
void as specified below), for one share of Common Stock without
payment except to the extent of any requirements as to payment of
par value.
Upon the occurrence of a Section ll(a)(ii) Event (as defined
in the Rights Plan), if the Rights evidenced by this Rights
Certificate are beneficially owned by (i) an Acquiring Person or
an Associate or Affiliate thereof (as such terms are defined in
the Rights Plan), (ii) a transferee of any such Acquiring Person
(or Associate or Affiliate thereof) who becomes a transferee
after such Acquiring Person becomes such, or (iii) under certain
circumstances specified in the Rights Plan, a transferee of any
such Acquiring Person (or Associate or Affiliate thereof), who
becomes a transferee prior to or concurrently with such 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 ll(a)(ii) Event.
As provided in the Rights Plan, the Purchase Price and the
number and kind of shares of Common Stock, securities or other
property, which may be purchased upon the exercise of the Rights
evidenced by this Rights Certificate are subject to modification
and adjustment upon the happening of certain events, including
Triggering Events (as defined in the Rights Plan).
This Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Plan, which terms,
provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Plan
reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent, if any, the Company and the
holders of the Rights Certificates, which limitations of rights
include the temporary suspension of the exercisability of such
Rights under the specific circumstances set forth in the Rights
Plan. Copies of the Rights Plan are on file at the principal
executive office of the Company and are also available upon
written request to the Company.
This Rights Certificate, with or without other Rights
Certificates, upon surrender at the principal executive offices
of the Company or the stockholder services office or offices of
any Rights Agent designated for such purpose, as the case may be,
may be exchanged for another Rights Certificate or Rights
Certificates of like tenor and date evidencing Rights entitling
the holder to purchase a like aggregate number of shares of
Common Stock as the Rights evidenced by the Rights Certificate or
Rights Certificates surrendered shall have entitled such holder
to purchase. If this Rights Certificate shall be exercised in
part, the holder shall be entitled to receive upon surrender
hereof another Rights Certificate or Rights Certificates for the
number of whole Rights not exercised.
Subject to the provisions of the Rights Plan, the Rights
evidenced by this Certificate may be redeemed at any time prior
to the Final Expiration Date by the Company at its option at a
redemption price of $.01 per Right (payable in cash, Common Stock
or other consideration deemed appropriate by a majority of the
Disinterested Directors of the Company).
The Company is not required to issue fractional shares of
Common Stock upon the exercise of any Right or Rights evidenced
thereby, but in lieu thereof a cash payment will be made, as
provided in the Rights Plan.
No holder of this Rights Certificate shall be entitled to
vote or receive dividends on or be deemed for any purpose the
holder of shares of Common Stock or any other securities of the
Company which may at any time be issuable on the exercise hereof,
nor shall anything contained in the Rights Plan or herein be
construed to confer upon the holder hereof, as such, any of the
rights of a stockholder of the Company or any right to vote for
the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings
or other actions affecting stockholders (except as provided in
the Rights Plan), or to receive dividends or subscription rights
until the Right or Rights evidenced by this Rights Certificate
shall have been exercised as provided in the Rights Plan.
This Rights Certificate shall not be valid or effective for
any purpose until it shall have been executed by the Company.
WITNESS the facsimile signature of the proper officers of
the company and its corporate seal.
Dated as of ,
ATTEST: EMS TECHNOLOGIES, INC.
Title By:
Title
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires
to transfer the Rights Certificate.)
FOR VALUE RECEIVED
hereby sells, assigns and transfers unto
(Please print name and address of transferee)
this Rights Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and
appoint Attorney, to transfer the within Rights Certificate on
the books of the within-named Company, with full power of
substitution.
Dated: ,
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) this Rights Certificate [ ] is [ ] is not being sold,
assigned and transferred by or on behalf of a Person who is or
was an Acquiring Person or an Affiliate or Associate of any such
Person (as such terms are defined in the Rights Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights evidenced
by this Rights Certificate from any person who is, was or
subsequently became an Acquiring Person or an Affiliate or
Associate of any such Person.
Dated: ,
Signature
NOTICE
The signatures to the foregoing Assignment and Certificate
must correspond to the name as written upon the face of this
Rights Certificate in every particular, without alteration or
enlargement or any change whatsoever.
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise Rights represented
by the Rights Certificate.)
To: EMS TECHNOLOGIES, INC.
The undersigned hereby irrevocably elects to exercise
Rights represented by this Rights Certificate to
purchase the number of shares of Common Stock issuable upon the
exercise of the Rights (or such other securities of the Company
or of any other person which may be issuable upon the exercise of
the Rights) and requests that the certificates for shares of
Common Stock (or such other securities) constituting such Rights
be issued in the name of and delivered to:
Please insert social security or other identifying number:
(Please print name and address)
If such number of Rights shall not be all the Rights
evidenced by this Rights Certificate, a new Rights Certificate
for the balance of such Rights shall be registered in the name of
and delivered to:
Please insert social security or other identifying number:
(Please print name and address)
Dated: ,
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) the Rights evidenced by this Rights Certificate [ ] are
[ ] are not being exercised by or on behalf of a Person who is or
was an Acquiring Person or an Affiliate or Associate of any such
Person (as such terms are defined in the Rights Plan);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights evidenced
by this Rights Certificate from any Person who is, was or became
an Acquiring Person or an Affiliate or Associate of any such
Person.
Dated: ,
Signature
Signature Guaranteed:
NOTICE
The signatures to the foregoing Election to Purchase and
Certificate must correspond to the name as written upon the face
of this Rights Certificate in every particular, without
alteration or enlargement or any change whatsoever.
EXHIBIT B
EMS TECHNOLOGIES, INC.
SUMMARY OF RIGHTS TO PURCHASE COMMON STOCK
On March 15, 1999, the Board of Directors (the "Board") of
EMS Technologies, Inc.(the "Company") declared a dividend
distribution of one Right for each outstanding share of Company
Common Stock to stockholders of record at the close of business
on April 16, 1999. The description and terms of the Rights are
set forth in a Stockholder Rights Plan (the "Plan") adopted by
the Board of Directors. Subject to becoming exercisable as
described below, each Right entitles its registered holder to
purchase from the Company one share of Common Stock at a Purchase
Price of $45.00, subject to adjustment.
Initially, the Rights will be attached to all Common Stock
certificates representing shares then outstanding, and no
separate Rights Certificates will be distributed. The Rights will
separate from the Common Stock on the "Distribution Date" (as
defined in the next paragraph), and separate Rights Certificates
will be distributed as soon as practicable thereafter to record
holders of the Common Stock at the close of business on the
Distribution Date. As of and after the Distribution Date, the
separate Rights Certificates alone will represent the Rights.
Except as otherwise determined by the Board, all shares of Common
Stock issued prior to the Distribution Date will be issued with
Rights.
The Distribution Date will occur on the earliest of (i) 10
days following the date (the "Stock Acquisition Date") of a
public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") has acquired, or
obtained the right to acquire, without the consent of a majority
of Disinterested Directors (as defined below), beneficial
ownership of 20% or more of the outstanding shares of Common
Stock, except in certain inadvertent acquisitions not involving
any intention of exercising control,(ii) 10 days following the
commencement of a tender offer or exchange offer that would
result in a person or group beneficially owning 20% or more of
such outstanding shares of Common Stock, (iii) with respect to
any Acquiring Person whose acquisition of 20% or more of the
outstanding shares of Common Stock of the Company was consented
to by a majority of the Disinterested Directors, 10 days
following the date that such person, without the consent of a
majority of the Disinterested Directors, thereafter acquires an
additional 2% of the outstanding shares of Common Stock of the
Company or engages in certain self-dealing transactions with the
Company, or (iv) 10 days following the date that an offer, made,
encouraged or supported by such Acquiring Person, to acquire the
Company in a merger or other business combination transaction in
which the Company is not the surviving corporation or to sell or
transfer 50% or more of the Company's assets or earning power is
first announced, published, sent or given.
Until the Distribution Date, (i) the Rights will be
evidenced by the Common Stock certificates and will be
transferred with and only with such Common Stock certificates,
(ii) new Common Stock certificates issued after April 16, 1999,
will contain a legend incorporating the Plan by reference, and
(iii) the surrender for transfer of any certificate for Common
Stock outstanding will also constitute the transfer of the Rights
associated with the Common Stock represented by such certificate.
The Rights are not exercisable until the Distribution Date
and will expire at the close of business on April 6, 2009, unless
earlier redeemed by the Company as described below.
If at any time after the Rights dividend is declared,
(1) a Person becomes the beneficial owner of 20% or more of
the then outstanding shares of Common Stock without the consent
of a majority of the Disinterested Directors (except pursuant to
an offer for all outstanding shares of Common Stock which a
majority of the Disinterested Directors determine to be fair to
and otherwise in the best interests of the Company and its
stockholders, or in certain inadvertent acquisitions not
involving any intent to exercise control), or
(2) a Person who has become the beneficial owner of 20% or
more of the then outstanding shares of Common Stock with the
consent of a majority of the Disinterested Directors thereafter
acquires an additional 2% or more of the outstanding shares of
Common Stock of the Company without such consent or engages in
certain self-dealing transactions with the Company without such
consent,
then beginning ten days after such event (or such shorter or
longer period as a majority of the Disinterested Directors shall
from time to time determine), each holder of a Right will have
the right to receive, upon exercise of the Right and payment of
the Purchase Price, Common Stock (or, in certain circumstances
and subject to certain limitations, cash, property or other
securities of the Company) having a value equal to two times the
Purchase Price of the Right, but in no case exceeding one share
for each $.10 of Purchase Price paid by the holder.
Alternatively, in such event and with the approval of a majority
of the Disinterested Directors, each holder of a Right will have
the right, or may be permitted only, to receive shares of Common
Stock having a value equal to the Purchase Price upon surrender
of the Right to the Company and without payment of the Purchase
Price, subject to any requirements as to the payment of par
value. Notwithstanding any of the foregoing, upon the occurrence
of any of the events set forth in this paragraph, all Rights that
are, or (under certain circumstances specified in the Plan) were,
beneficially owned by any Acquiring Person or its associates or
affiliates will be null and void.
For example, at a Purchase Price of $45.00 per Right, each
Right not owned by an Acquiring Person (or by certain
related parties) following an event set forth in the preceding
paragraph would entitle its holder to purchase $90.00 worth of
Common Stock (or other consideration, as noted above) for $45.00.
Assuming that the Common Stock had a per share value of $15.00 at
such time, the holder of each valid Right would be entitled to
purchase six shares of Common Stock for $45.00.
If at any time following or simultaneously with the
Distribution Date, without the consent of a majority of
Disinterested Directors, (i) the Company is acquired in a merger
or other business combination transaction in which the Company is
not the surviving corporation (other than a merger which follows
a fair offer for all outstanding shares, as described in the
second preceding paragraph), or (ii) 50% or more of the Company's
assets or earning power is sold or transferred, each holder of a
Right (except Rights which have become void as set forth above)
will have the right upon exercise of the Right to receive common
stock (or other securities or property, as the case may be) of
the acquiring company having a value equal to two times the
Purchase Price of the Right.
The Purchase Price payable and the number of shares of
Common Stock (or the number and kind of other securities or
property, as the case may be) issuable upon exercise of the
Rights are subject to adjustment from time to time to prevent
dilution (i) in the event of a share dividend on, or a
subdivision, combination or reclassification of, the Common
Stock, (ii) if holders of the Common Stock are granted certain
rights or warrants to subscribe for Common Stock or convertible
securities at less than the current market price of the Common
Stock, or (iii) upon the distribution to holders of the Common
Stock of evidences of indebtedness or assets (excluding regular
quarterly cash dividends) or of subscription rights or warrants
(other than those referred to above).
With certain exceptions, no adjustment in the Purchase Price
will be required until cumulative adjustments amount to at least
1% of the Purchase Price. The Company is not required to issue
fractional shares of Common Stock and in lieu thereof an
adjustment in cash may be made based on the market price of the
Common Stock on the last trading date prior to the date of
exercise.
At any time prior to the Expiration Date, the Disinterested
Directors, by majority vote, may redeem the outstanding Rights at
a redemption price of $0.01 per Right (the "Redemption Price")
(payable in cash, Common Stock or other consideration deemed
appropriate by a majority of the Disinterested Directors).
Immediately upon the action of the Disinterested Directors
electing to redeem the outstanding Rights, the right to exercise
the outstanding Rights will terminate and the holders of
outstanding Rights will only have the right to receive the
Redemption Price. Also, the Board may, at any time after the
Distribution Date, elect to exchange all or a portion of
outstanding Rights (other than Rights that have become void as
set forth above) for Common Stock at a ratio of one share of
Common Stock for each Right (subject to any requirements as to
payment of par value), whereupon the right to exercise the
affected Rights will terminate and their holders will only have
the right to receive the exchange shares. The Company shall
promptly give notice of redemption or exchange to all Rights
holders by first-class mail.
A "Disinterested Director" is any member of the Board who is
not, does not control, is not controlled by, is not affiliated
with, has not been nominated by or is not in any other manner
representative of, and does not have a substantial interest in
(whether by beneficial ownership of securities or otherwise), any
Acquiring Person or associate or affiliate thereof.
Until a Right is exercised, the holder thereof, as such,
will have no rights as a stockholder of the Company, including,
without limitation, the right to vote or to receive dividends.
Stockholders may, depending upon the circumstances, recognize
taxable income in the event that the Rights become exercisable
for Common Stock (or other consideration) of the Company or for
securities of an acquiring company as set forth above.
Prior to the Distribution Date, any of the provisions of the
Plan may be amended by the Board, or the Board may adopt a new
rights plan in substitution for the Plan and all Rights
outstanding thereunder. After the Distribution Date, the
provisions of the Plan may be amended, or a new rights plan may
be adopted in substitution for the Plan and all rights
outstanding thereunder, by a majority of the Disinterested
Directors to cure any ambiguity, correct or supplement any
provision of the Plan that may be defective or inconsistent with
other provisions of the Plan, shorten or lengthen any time period
under the Plan, effect compliance with, or take advantage of,
changes in law affecting the legality or enforceability of the
Plan, or change or supplement the provisions of the Plan in any
manner that the majority of the Disinterested Directors may deem
desirable (including, without limitation, the addition of other
events requiring adjustment to the Rights), which change,
supplement or substitution does not adversely affect the
interests of holders of Rights (other than those of an Acquiring
Person or an affiliate or associate of an Acquiring Person).
However, no amendment or substituted plan may change the
Redemption Price, change the expiration date of the Plan to an
earlier date, or reduce the Purchase Price or the number of
shares for which a Right is exercisable.
The Board my establish one or more funds, in trust or
otherwise, for use by the Disinterested Directors in carrying out
their responsibilities under the Plan.
Copies of the Plan will be filed with the Securities and
Exchange Commission as an Exhibit to an interim report to be
filed by the Company on Form 8-K dated April 6, 1999. Copies of
the Plan are available free of charge from the Company. This
summary description of the Rights does not purport to be complete
and is qualified in its entirety by reference to the Plan, which
is incorporated herein by reference.
