SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8--A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Barrett Resources Corporation
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(Exact name of registrant as specified in its charter)
Delaware 84-0832476
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(State of incorporation or organization) (I.R.S. Employer
Identification
No.)
1515 Arapahoe Street, Tower 3, Suite 1000,
Denver, Colorado
------------------------------- 80202
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange on
which each class is to be
Title of each class to be so registered registered
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Preferred Stock Purchase Rights New York Stock Exchange
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If this Form relates to the registration of a class of debt
securities and is effective upon filing pursuant to General
Instruction A.(c)(1), please check the following box. [ ]
If this Form relates to the registration of a class of debt
securities and is to become effective simultaneously with the
effectiveness of a concurrent registration statement under the
Securities Act of 1933 pursuant to General Instruction A.(c)(2),
please check the following box. [ ]
Securities to be registered pursuant to Section 12(g) of the Act:
None
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(Title of Class)
Item 1. Description of Securities to be Registered
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On August 4, 1997, the Board of Directors of Barrett
Resources Corporation (the "Company") declared a dividend
distribution of one preferred stock purchase right (a "Right")
for each outstanding share of Common Stock, par value $.01 per
share, of the Company (the "Common Shares"), payable to the
holders of record of the Common Shares as of the close of
business on August 20, 1997. Except as set forth below, each
Right, when it becomes exercisable, entitles the registered
holder to purchase from the Company one one--thousandth of a
share of a series of preferred stock, designated as Series A
Junior Participating Preferred Stock, par value $.001 per share
(the "Preferred Stock"), at a price of $150 per one one--
thousandth of a share (the "Purchase Price"), subject to
adjustment. The description and terms of the Rights are set
forth in a Rights Agreement (the "Rights Agreement") between the
Company and BankBoston, N.A., as Rights Agent. A copy of the
Rights Agreement is attached as an exhibit hereto and is hereby
incorporated by reference. The following summary of the Rights
is qualified in its entirety by reference to the Rights
Agreement. The terms of the Preferred Stock are summarized below
and are set forth in an Certificate of Designation attached as
Exhibit A to the Rights Agreement.
Until the earliest to occur of (i) a public
announcement that, without the prior consent of the Board of
Directors of the Company, a person or group, including any
affiliates or associates of such person or group (an "Acquiring
Person"), acquired, or obtained the right to acquire, beneficial
ownership of 15% or more of the outstanding Common Shares (the
"Stock Acquisition Date") or (ii) ten business days (or such
later date as the Board may determine) following the commencement
or announcement of an intention (which is not subsequently
withdrawn) to make a tender offer or exchange offer which would
result in any person or group (and related persons) having
beneficial ownership of 15% or more of the outstanding Common
Shares without the prior consent of the Board of Directors or
(iii) twenty business days prior to the date on which a
Transaction (as such term is hereinafter defined) is reasonably
expected to become effective or be consummated (the earliest of
such dates being called the "Distribution Date"), the Rights will
be attached to all Common Share certificates and will be
evidenced by the Common Share certificates. The Rights Agreement
provides that, until the Distribution Date, the Rights will be
transferred with and only with the Common Shares. Until the
Distribution Date (or earlier redemption or expiration of the
Rights), new Common Share certificates issued after August 20,
1997 upon transfer, replacement or new issuance of Common Shares
will contain a notation incorporating the Rights Agreement by
reference. Until the Distribution Date (or earlier redemption or
expiration of the Rights), the surrender for transfer of any
Common Share certificates outstanding as of August 20, 1997, even
without such a notation, will also constitute the transfer of the
Rights associated with the Common Shares represented by such
certificate. As soon as practicable following the Distribution
Date, separate certificates evidencing the Rights ("Rights
Certificates") will be mailed to holders of record of the Common
Shares as of the close of business on the Distribution Date, and
the separate Rights Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution
Date. The Rights will expire on August 4, 2007, unless earlier
redeemed by the Company as described below.
The Preferred Stock purchasable upon exercise of the
Rights will be nonredeemable and junior to any other series of
preferred stock the Company may issue (unless otherwise provided
in the terms of such stock). Each share of Preferred Stock will
have a preferential quarterly dividend in an amount equal to the
greater of $10.00 and 1,000 times the dividend declared on each
Common Share. In the event of liquidation, the holders of
Preferred Stock will receive a preferred liquidation payment per
share equal to the greater of $5,000 and 1,000 times the payment
made per Common Share. Each share of Preferred Stock will have
one vote, voting together with the Common Shares. In the event
of any merger, consolidation or other transaction in which Common
Shares are exchanged, each share of Preferred Stock will be
entitled to receive 1,000 times the amount and type of
consideration received per Common Share. The rights of the
Preferred Stock as to dividends, liquidation and voting, and in
the event of mergers and consolidations, are protected by
customary anti--dilution provisions. Fractional shares of
Preferred Stock in integral multiples of one one--thousandth of a
share of Preferred Stock will be issuable; however, the Company
may elect to distribute depositary receipts in lieu of such
fractional shares. In lieu of fractional shares other than
fractions that are multiples of one one--thousandth of a share,
an adjustment in cash will be made based on the market price of
the Preferred Stock on the last trading date prior to the date of
exercise.
In the event that any person becomes an Acquiring
Person, each holder of a Right generally will thereafter have the
right for a 60 day period after the later of the date of such
event and the effectiveness of an appropriate registration
statement (or such other longer period set by the Board of
Directors) to receive upon exercise of the Right that number of
units of one one-thousandth of a share of Preferred Stock (or,
under certain circumstances, Common Shares or other securities)
having an average market value during a specified time period
(immediately prior to the occurrence of a Person becoming an
Acquiring Person) of two times the exercise price of the Right
(such right being called the "Subscription Right").
Notwithstanding the foregoing, following the occurrence of a
Person becoming an Acquiring Person or a Transaction Person (as
hereinafter defined), all Rights that are, or (under certain
circumstances specified in the Rights Agreement) were,
beneficially owned by the Acquiring Person, the Transaction
Person, or any affiliate or associate thereof will be null and
void.
In the event that, at any time following the Stock
Acquisition Date or, if a Transaction is proposed, the
Distribution Date, the Company is acquired in a merger or other
business combination transaction or 50% or more of the Company's
assets or earning power are sold (in one transaction or a series
of transactions), proper provision shall be made so that each
holder of a Right (except a Right voided as set forth above)
shall thereafter have the right to receive, upon the exercise
thereof at the then current exercise price of the Right, that
number of shares of common stock of the acquiring company (or, in
the event there is more than one acquiring company, the acquiring
company receiving the greatest portion of the assets or earning
power transferred) which at the time of such transaction would
have a market value of two times the exercise price of the Right
(such right being called the "Merger Right"). The holder of a
Right will continue to have the Merger Right whether or not such
holder exercises the Subscription Right.
The Purchase Price payable, the number of Rights and
the number of shares of Preferred Stock, Common Shares or other
securities or property issuable, upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution
(i) in the event of a stock dividend on, or a subdivision,
combination or reclassification of the Preferred Stock, (ii) upon
the grant to holders of the Preferred Stock of certain rights or
warrants to subscribe for Preferred Stock, certain convertible
securities or securities having the same or more favorable
rights, privileges and preferences as the Preferred Stock at less
than the current market price of the Preferred Stock or
(iii) upon the distribution to holders of the Preferred Stock of
evidences of indebtedness or assets (excluding regular quarterly
cash dividends out of earnings or retained earnings and dividends
payable in Preferred Stock) 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 require an
adjustment of at least 1% in such Purchase Price. No fractional
shares will be issued and, in lieu thereof, an adjustment in cash
will be made based on the market price of the Preferred Stock on
the last trading date prior to the date of exercise.
The number of outstanding Rights associated with each
share of Common Stock and the voting and economic rights of each
one one--thousandth of a share of Preferred Stock issuable upon
exercise of each Right are also subject to adjustment in the
event of a stock split of the Common Stock or a stock dividend on
the Common Stock payable in Common Stock or subdivisions,
consolidations or combinations of the Common Stock occurring, in
any such case, prior to the Distribution Date.
At any time prior to the earliest to occur of (i) the
close of business on the Stock Acquisition Date or (ii) the
expiration of the Rights, the Company may redeem the Rights in
whole, but not in part, at a price of $.001 per Right (the
"Redemption Price"), which redemption shall be effective upon the
action of the Board of Directors. Additionally, following the
Stock Acquisition Date and the expiration of the period during
which the Subscription Right is exercisable, the Company may
redeem the then outstanding Rights in whole, but not in part, at
the Redemption Price, provided that such redemption is in
connection with a merger or other business combination
transaction or series of transactions involving the Company in
which all holders of Common Shares are treated alike but not
involving an Acquiring Person (or any person who was an Acquiring
Person) or its affiliates or associates. Upon the effective date
of the redemption of the Rights, the right to exercise the Rights
will terminate and the only right of the holders of Rights will
be to receive the Redemption Price.
In the event that a majority of the Board of Directors
of the Company in office following a meeting of stockholders or
stockholder action by written consent are not nominated by the
Board of Directors serving immediately prior to such meeting or
action, then for 365 days following such meeting or action the
Rights may not be redeemed or amended if such redemption or
amendment is reasonably likely to facilitate a combination or
sale of assets or earning power (a "Transaction") with a person
who (A) either (i) is or will become an Acquiring Person or
(ii) is a party involved in a merger or consolidation with, or
sale of assets by, the Company or affiliate or associate thereof
if the Transaction were to be consummated and (B) who has
directly or indirectly proposed or nominated a member of the
Board who is in office at the time the Transaction is being
considered (a "Transaction Person"). The Rights may not be
redeemed thereafter if during such 365 day period the Company
enters into any agreement reasonably likely to facilitate a
Transaction with a Transaction Person and the redemption is
reasonably likely to facilitate a Transaction with a Transaction
Person.
Until a Right is exercised, the holder thereof, as
such, will have no rights as a shareholder of the Company,
including, without limitation, the right to vote or to receive
dividends.
Except as set forth above, the terms of the Rights may
be amended by the Board of Directors of the Company, (i) prior to
the Distribution Date in any manner, and (ii) on or after the
Distribution Date to cure any ambiguity, to correct or supplement
any provision of the Rights Agreement which may be defective or
inconsistent with any other provisions, or in any manner not
adversely affecting the interests of the holders of the Rights
(including the interests of any Acquiring Person), or, subject to
certain limitations, to shorten or lengthen any time period under
the Rights Agreement.
The Rights have certain anti--takeover effects. The
Rights will cause substantial dilution to a person or group that
attempts to acquire the Company without conditioning the offer on
the Rights being redeemed or a substantial number of Rights being
acquired. However, the Rights generally should not interfere
with any merger or other business combination approved by the
Board of Directors.
The form of Rights Agreement between the Company and
BankBoston, N.A., specifying the terms of the Rights, Exhibit A
thereto -- the form of Certificate of Designation setting forth
the terms of the Preferred Stock -- Exhibit B thereto -- the Form
of Rights Certificate -- and Exhibit C thereto -- the Summary of
Rights to Purchase Stock -- are attached hereto as Exhibit 1 and
are incorporated herein by reference. The foregoing description
of the Rights is qualified by reference to the Rights Agreement.
Item 2. Exhibits.
1 Form of Rights Agreement (the "Rights Agreement")
dated as of August 5, 1997 between Barrett
Resources Corporation and BankBoston, N.A. which
includes, as Exhibit A thereto, the form of
Certificate of Designation specifying the terms of
the Preferred Stock and, as Exhibit B thereto, the
form of Rights Certificate. Pursuant to the
Rights Agreement, Rights Certificates will not be
mailed until a person acquires beneficial
ownership of 15% or more of the Common Shares or
10 days (or such later date as the Board of
Directors of the Company may determine) after a
person commences or announces its intention to
commence an offer if, upon consummation thereof,
such person would become an Acquiring Person (as
defined in the Rights Agreement) or prior to
certain transactions involving the Company.
SIGNATURE
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, the registrant has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereto duly authorized.
BARRETT RESOURCES CORPORATION
By /s/ Paul M. Rady
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Paul M. Rady
President and Chief
Executive Officer
Date: August 8, 1997
EXHIBIT INDEX
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Exhibit Description
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1 Form of Rights Agreement (the "Rights
Agreement") dated as of August 5, 1997
between Barrett Resources Corporation and
BankBoston, N.A. which includes, as Exhibit
A thereto, the form of Certificate of
Designation specifying the terms of the
Preferred Stock, and, as Exhibit B thereto,
the form of Rights Certificate. Pursuant
to the Rights Agreement, Rights
Certificates will not be mailed until a
person acquires beneficial ownership of 15%
or more of the Common Shares or 10 days (or
such later date as the Board of Directors
of the Company may determine) a person
commences or announces its intention to
commence an offer if, upon consummation
thereof, such person would become an
Acquiring Person (as defined in the Rights
Agreement) or prior to certain transactions
involving the Company.
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BARRETT RESOURCES CORPORATION
and
BANKBOSTON, N.A.
Rights Agent
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Rights Agreement
Dated as of August 5, 1997
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Table of Contents
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Page
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Section 1. Certain Definitions ix
Section 2. Appointment of Rights Agent xiv
Section 3. Issue of Rights Certificates xv
Section 4. Form of Rights Certificates xviii
Section 5. Countersignature and Registration xix
Section 6. Transfer, Split Up, Combination and
Exchange of Rights Certificates;
Mutilated, Destroyed, Lost or Stolen
Rights Certificates xxi
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights xxii
Section 8. Cancellation and Destruction of Rights
Certificates xxvii
Section 9. Reservation and Availability of Preferred
Stock xxviii
Section 10. Preferred Stock Record Date xxx
Section 11. Adjustment of Purchase Price, Number and
Kind of Shares or Number of Rights xxxi
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares xlviii
Section 13. Consolidation, Merger or Sale or Transfer
of Assets or Earning Power xlix
Section 14. Additional Covenant liv
Section 15. Fractional Rights and Fractional Shares liv
Section 16. Rights of Action lvii
Section 17. Agreement of Rights Holders lviii
Section 18. Rights Certificate Holder Not Deemed a
Stockholder lix
Section 19. Concerning the Rights Agent lx
Section 20. Merger or Consolidation or Change of Name
of Rights Agent lxi
Section 21. Duties of Rights Agent lxii
Section 22. Change of Rights Agent lxvii
Section 23. Issuance of New Rights Certificates lxix
Section 24. Redemption and Termination lxx
Section 25. Notice of Certain Events lxxiii
Section 26. Notices lxxiv
Section 27. Supplements and Amendments lxxv
Section 28. Determination and Actions by the Board of
Directors, etc. lxxvii
Section 29. Successors lxxviii
Section 30. Benefits of this Agreement lxxviii
Section 31. Severability lxxix
Section 32. Governing Law lxxix
Section 33. Counterparts lxxix
Section 34. Descriptive Headings lxxix
Exhibit A -- Form of Certificate of Designation
of Series A Junior Participating Preferred Stock
Exhibit B -- Form of Rights Certificate
Exhibit C -- Form of Summary of Rights
RIGHTS AGREEMENT
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This Agreement, dated as of August 5, 1997, between
Barrett Resources Corporation, a Delaware corporation (the
"Company"), and BankBoston, N.A. (the "Rights Agent").
W I T N E S S E T H
WHEREAS, the Board of Directors of the Company has
authorized and declared a dividend distribution of one preferred
stock purchase right (a "Right") for each outstanding share of
Common Stock, par value $.01 per share, of the Company (the
"Common Stock") outstanding at the close of business on
August 20, 1997, (the "Record Date"), each Right representing the
right to purchase one of a share of Series A Junior Participating
Preferred Stock of the Company having the rights, powers and
preferences set forth in the form of Certificate of Designation
attached as Exhibit A to this Agreement, upon the terms and
subject to the conditions set forth herein, and has further
authorized and directed the issuance of one Right with respect to
each share of Common Stock that shall become outstanding between
the Record Date and the earliest of the Distribution Date, the
Redemption Date or the Expiration Date (as such terms are
hereinafter defined); provided, however, that Rights may be
issued with respect to shares of Common Stock that shall become
outstanding after the Distribution Date and prior to the earlier
of the Redemption Date and the Expiration Date in accordance with
the provisions of Section 23 of this Agreement;
NOW, THEREFORE, in consideration of the premises and
the mutual agreements herein set forth, the parties hereby agree
as follows:
Section 1. Certain Definitions.
For purposes of this Agreement, the following terms
have the meanings indicated:
(a) "Acquiring Person" shall mean any Person (as
such term is hereinafter defined) who or which, together with all
Affiliates (as such term is hereinafter defined) and Associates
(as such term is hereinafter defined) of such Person, without the
prior approval of the Board of Directors of the Company, shall be
the Beneficial Owner of 15% or more of the shares of Common Stock
then outstanding or who was such a Beneficial Owner at any time
after the date hereof, whether or not such Person continues to be
the Beneficial Owner of 15% or more of the outstanding shares of
Common Stock, but shall not include the Company, any subsidiary
of the Company (as such term is hereinafter defined), any
employee benefit plan of the Company or any of its subsidiaries
or any entity holding shares of Common Stock organized, appointed
or established by the Company or any of its subsidiaries for or
pursuant to the terms of any such plan or any trustee or
administrator of any such plan; provided, however, that no Person
shall be an Acquiring Person if within three Business Days after
such Person would (but for the operation of this proviso)
otherwise have become an Acquiring Person or, if such Person did
so inadvertently, after such Person discovers that it would
otherwise have become an Acquiring Person if such Person both
(i) notifies the Board of Directors of the Company that such
Person would (absent the operation of this proviso) have become
an Acquiring Person inadvertently and (ii) within two Business
Days after such notification, such Person divests itself of a
sufficient number of shares of Common Stock so that such Person
is no longer the Beneficial Owner of 15% or more of the
outstanding shares of Common Stock.
(b) "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 (the "Exchange Act"), as in effect on the
date of this Agreement.
(c) A Person shall be deemed the "Beneficial
Owner" of, and shall be deemed to "beneficially own," any
securities:
(i) which such Person or any of such
Person's Affiliates or Associates beneficially owns,
directly or indirectly;
(ii) which such Person or any of such
Person's Affiliates or Associates has (A) the right or
obligation to acquire (whether such right or obligation
is exercisable or effective immediately or only after
the passage of time) pursuant to any agreement,
arrangement or understanding (whether or not in
writing) or upon the exercise of conversion rights,
exchange rights, rights (other than these Rights),
warrants or options, or otherwise; provided, however,
that a Person shall not be deemed the "Beneficial
Owner" of, or to "beneficially own," securities
tendered pursuant to a tender or exchange offer made by
such Person or any of such Person's Affiliates or
Associates until such tendered securities are accepted
for purchase or exchange; or (B) the right to vote
pursuant to any agreement, arrangement or understanding
(whether or not in writing); provided, however, that a
Person shall be not be deemed the "Beneficial Owner"
of, or to "beneficially own," any security under this
clause (B) if the agreement, arrangement or
understanding to vote such security (1) arises solely
from a revocable proxy given in response to a public
proxy or consent solicitation made pursuant to, and in
accordance with, the applicable rules and regulations
of the Exchange Act and (2) is not also then reportable
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 clause (B) of subparagraph (ii) of this
paragraph (c)) or disposing of any securities of the
Company.
(d) "Business Day" shall mean any day other than
a Saturday, Sunday, or a day on which banking institutions in the
State of Colorado are authorized or obligated by law or executive
order to close.
(e) "Close of business" on any given date shall
mean 5:00 P.M., Massachusetts time, on such date; provided,
however, that if such date is not a Business Day it shall mean
5:00 P.M., Massachusetts time, on the next succeeding Business
Day.
(f) "Common Stock" shall mean the Common Stock,
par value $.01 per share, of the Company, except that "Common
Stock" when used with reference to any Person other than the
Company shall mean the capital stock with the greatest voting
power, or the equity securities or other equity interest having
power to control or direct the management, of such Person or, if
such Person is a subsidiary of another Person, the Person which
ultimately controls such first--mentioned Person and which has
issued and outstanding such capital stock, equity securities or
equity interests.
(g) "Person" shall mean any individual, firm,
corporation, partnership or other entity.
(h) "Preferred Stock" shall mean the Series A
Junior Participating Preferred Stock, par value $.001 per share,
of the Company.
(i) "Rights Agreement" shall mean this Agreement,
including as it may hereafter be amended.
(j) "Stock Acquisition Date" shall mean the first
date of public announcement by the Company or an Acquiring Person
that an Acquiring Person has become such. However, a Stock
Acquisition Date shall not occur if a Person does not become an
Acquiring Person by reason of the proviso in the definition of
"Acquiring Person".
(k) A "subsidiary" of any Person shall mean any
corporation or other entity of which a majority of the voting
power of the voting equity securities or voting interests is
owned, directly or indirectly, by such Person, or which is
otherwise controlled by such Person.
(l) "Transaction" shall mean any merger,
consolidation or sale of assets described in Section 13(a) hereof
or any acquisition of shares of Common Stock of the Company which
would result in a Person becoming a Transaction Person.
(m) "Transaction Person" with respect to a
Transaction shall mean (x) any Person who (i) is or will become
an Acquiring Person or a Principal Party (as such term is defined
in Section 13(b) hereof) if the Transaction were to be
consummated and (ii) directly or indirectly proposed or nominated
a director of the Company which director is in office at the time
of consideration of the Transaction (a Person shall be deemed to
have indirectly nominated a director if it has proposed becoming
or indicated an intention to become an Acquiring Person or a
Principal Party and a third party proposes, nominates or appoints
a director for the purpose of facilitating a Transaction with
such Person), or (y) an Affiliate or Associate of such a Person.
Section 2. Appointment of Rights Agent.
The Company hereby appoints the Rights Agent to act
as agent for the Company and the holders of the Rights (who, in
accordance with Section 3 hereof, shall prior to the Distribution
Date also be the holders of the Common Stock) in accordance with
the terms and conditions hereof, and the Rights Agent hereby
accepts such appointment. The Company may from time to time
appoint such Co--Rights Agents as it may deem necessary or
desirable, upon ten (10) days' prior written notice to the Rights
Agent. The Rights Agent shall have no duty to supervise, and in
no event be liable for, the acts or omissions of any such co--
Rights Agent. In the event the Company appoints one or more Co--
Rights Agents, the respective duties of the Rights Agents and any
Co--Rights Agents shall be as the Company shall determine.
Section 3. Issue of Rights Certificates.
(a) Until the earliest of (i) the Stock
Acquisition Date, (ii) the tenth Business Day after the date of
the commencement of, or first public announcement of the intent
of any Person (other than the Company, any subsidiary of the
Company, or any employee benefit plan of the Company or any of
its subsidiaries or any trustee or administrator of any such plan
in its capacity as such) to commence (which intention to commence
remains in effect for five business days after such
announcement), a tender or exchange offer which would result in
such Person becoming an Acquiring Person (or such later date
determined by the Board of Directors of the Company which date
shall not be later than the earlier of the dates specified in (i)
and (iii)), or (iii) twenty business days prior to the date on
which a Transaction is reasonably expected to become effective or
be consummated (the earliest of such dates being herein referred
to as the "Distribution Date"), (x) the Rights will be evidenced
(subject to the provisions of paragraph (b) of this Section 3) by
the certificates for 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 (and the right to
receive certificates therefor) will be transferable only in
connection with the transfer of the underlying shares of Common
Stock (including a transfer to the Company); provided, however,
that if a tender or exchange offer is terminated prior to the
occurrence of the Distribution Date, then no Distribution Date
shall occur as a result of that tender or exchange offer. As
soon as practicable after the Distribution Date, the Rights Agent
will send by first--class, insured, postage prepaid mail, to each
record holder of the Common Stock as of the close of business on
the Distribution Date, at the address of such holder shown on the
records of the Company, a certificate for Rights, in
substantially the form of Exhibit B hereto (the "Rights
Certificates"), evidencing one Right for each share of Common
Stock so held. As of and after the Distribution Date, the Rights
will be evidenced solely by such Rights Certificates.
(b) With respect to certificates for the Common
Stock outstanding as of the date of this Agreement, until the
Distribution Date (or earlier redemption, expiration or
termination of the Rights), 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 Distribution Date (or earlier
redemption, expiration or termination of the Rights), the
surrender for transfer of any of the certificates for the Common
Stock outstanding on the Record Date shall also constitute the
transfer of the Rights associated with the Common Stock
represented by such certificate. Upon the request of the holder
of any shares of Common Stock or, after the Distribution Date,
the holder of any Rights, the Company shall, at its expense,
provide a copy of the Summary of Rights in the form attached
hereto as Exhibit C.
(c) Certificates for the Common Stock issued (or
which become outstanding) after the date of this Agreement (or as
soon thereafter as is reasonably practicable), but prior to the
earlier of the Distribution Date or the Expiration Date (as such
term is hereinafter defined), shall be deemed also to be
certificates for Rights, and shall have impressed, printed,
stamped, written or otherwise affixed onto them the following
legend:
This certificate also evidences and entitles
the holder hereof to certain Rights as set forth
in an Amended and Restated Rights Agreement
between Barrett Resources Corporation and
BankBoston, N.A. (the "Rights Agent") dated as of
August 5, 1997 (the "Rights Agreement"), the terms
of which are hereby incorporated herein by
reference and a copy of which is on file at the
principal offices of Barrett Resources
Corporation. Under certain circumstances, as set
forth in the Rights Agreement, such Rights may be
redeemed, may expire, or may be evidenced by
separate certificates and will no longer be
evidenced by this certificate. Barrett Resources
Corporation will mail to the holder of this
certificate a copy of the Rights Agreement without
charge within fifteen days after receipt of a
written request therefor. Under certain
circumstances, Rights issued to Acquiring Persons
(as defined in the Rights Agreement) or certain
related persons and any subsequent holder of such
Rights may become null and void.
With respect to such certificates containing the foregoing
legend, until the Distribution Date, the Rights associated with
the Common Stock represented by such certificates shall be
evidenced by such certificates alone, and the surrender for
transfer of any of such certificates shall also constitute the
transfer of the Rights associated with the Common Stock
represented by such certificate. If the Company purchases or
otherwise acquires shares of Common Stock prior to the
Distribution Date, any Rights associated with such Common Stock
shall be deemed canceled and retired so that the Company shall
not be entitled to exercise any Right associated with the shares
of Common Stock which are no longer outstanding.
Section 4. Form of Rights Certificates.
(a) The Rights Certificates (and the forms of
election to purchase shares and of assignment to be printed on
the reverse thereof) shall each be substantially in the form set
forth in Exhibit B hereto and may have such marks of
identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate
and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any applicable
law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange 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 23 hereof, the Rights
Certificates, whenever distributed, on their face shall entitle
the holders thereof to purchase such number of one one-
thousandths of a share of Preferred Stock as shall be set forth
therein at the price per share set forth therein (the "Purchase
Price"), but the number of such shares and the Purchase Price
shall be subject to adjustment as provided herein.
(b) Any Rights Certificate issued pursuant to
Section 3(a) or Section 23 hereof that represents Rights
beneficially owned by an Acquiring Person, a Transaction Person,
or any Associate or Affiliate thereof and any Rights Certificate
issued at any time upon the transfer of any Rights to such an
Acquiring Person, a Transaction Person, or any Associate or
Affiliate thereof or to any nominee of such Acquiring Person,
Associate or Affiliate, and any Rights Certificate issued
pursuant to Section 6 or Section 11 upon transfer, exchange,
replacement or adjustment of any other Rights Certificate
referred to in this sentence, shall contain the following legend:
The Rights represented by this Rights Certificate
were issued to a Person who was an Acquiring
Person, a Transaction Person, or an Affiliate or
an Associate of an Acquiring Person or a
Transaction Person (as such terms are defined in
the Rights Agreement). Accordingly, this Rights
Certificate and the Rights represented hereby are
null and void.
The provisions of Section 7(e) of this Rights Agreement shall be
operative whether or not the foregoing legend is contained on any
such Rights Certificate.
Section 5. Countersignature and Registration.
The Rights Certificates shall be executed on behalf
of the Company by its Chairman of the Board, any Vice Chairman of
the Board, any 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. The Rights Certificates
shall be manually countersigned by the Rights Agent and shall not
be valid for any purpose unless so countersigned. In case any
officer of the Company who shall have signed any of the Rights
Certificates shall cease to be such officer of the Company before
countersignature by the Rights Agent and issuance and delivery by
the Company, such Rights Certificates, nevertheless, may be
countersigned by the Rights Agent, and issued and delivered by
the Company with the same force and effect as though the person
who signed such Rights Certificates had not ceased to be such
officer of the Company; and any Rights Certificates may be signed
on behalf of the Company by any person who, at the actual date of
the execution of such Rights Certificate, shall be a proper
officer of the Company to sign such Rights Certificate, although
at the date of the execution of this Rights Agreement any such
person was not such an officer.
Following the Distribution Date, the Rights Agent will
keep or cause to be kept, at one of its offices, 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 certificate number and the date of each of the Rights
Certificates.
Section 6. Transfer, Split Up, Combination and
Exchange of Rights Certificates; Mutilated, Destroyed, Lost or
Stolen Rights Certificates.
Subject to the provisions of Section 4(b),
Section 7(e) and Section 15 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 Rights Certificates,
entitling the registered holder to purchase a like number of one
one-thousandths of a share of Preferred Stock as the Rights
Certificate or Rights Certificates surrendered then entitled such
holder to purchase. Any registered holder desiring to transfer,
split up, combine or exchange any Rights Certificate shall make
such request in writing delivered to the Rights Agent, and shall
surrender the Rights Certificate or Rights Certificates to be
transferred, split up, combined or exchanged at the principal
office of the Rights Agent. Thereupon the Rights Agent shall
countersign and deliver to the Person entitled thereto a Rights
Certificate or Rights Certificates, as the case may be, as so
requested. The Company may require payment of a sum sufficient
to cover any tax or governmental charge that may be imposed in
connection with any transfer, split up, combination or exchange
of Rights Certificates.
Upon receipt by the Company and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Rights Certificate, and, in case
of loss, theft or destruction, of indemnity or security
reasonably satisfactory to them, and reimbursement to the Company
and the Rights Agent of all reasonable expenses incidental
thereto, and upon surrender to the Rights Agent and cancellation
of the Rights Certificate if mutilated, the Company will execute
and deliver a new Rights Certificate of like tenor to the Rights
Agent for countersignature and delivery to the registered owner
in lieu of the Rights Certificate so lost, stolen, destroyed or
mutilated.
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights.
(a) The registered holder of any Rights
Certificate may exercise the Rights evidenced thereby (except as
otherwise provided herein) in whole or in part at any time after
the Distribution Date upon presentation of the Rights
Certificate, with the appropriate form of election to purchase on
the reverse side thereof duly executed, to the Rights Agent at
the principal office of the Rights Agent, together with payment
of the Purchase Price for each one one--thousandth of a share of
Preferred Stock (or such other number of shares or other
securities) as to which the Rights are exercised, at or prior to
the earlier of (i) the close of business on August 4, 2007 (the
"Final Expiration Date"), or (ii) the time at which the Rights
are redeemed as provided in Section 24 hereof (such earlier time
being herein referred to as the "Expiration Date").
Notwithstanding any other provision of this Agreement, any Person
who prior to the Distribution Date becomes a record holder of
shares of Common Stock may exercise all of the rights of a
registered holder of a Rights Certificate with respect to the
Rights associated with such shares of Common Stock in accordance
with and subject to the provisions of this Agreement, including
the provisions of Sections 4(b), 6 and 7(e) hereof, as of the
date such Person becomes a record holder of shares of Common
Stock.
(b) Subject to the terms and conditions set forth
herein, when exercisable, each Right shall represent the right to
purchase one one-thousandth of a share of Preferred Stock. The
Purchase Price for each one one--thousandth of a share of
Preferred Stock pursuant to the exercise of a Right shall
initially be $150, shall be subject to adjustment from time to
time as provided in Sections 11 and 13 hereof and shall be
payable in lawful money of the United States of America in
accordance with paragraph (c) below.
(c) Upon receipt of a Rights Certificate
representing exercisable Rights, with the appropriate form of
election to purchase duly executed, accompanied by payment of the
Purchase Price for the shares (or other securities or property)
to be purchased and an amount equal to any applicable transfer
tax (as determined by the Rights Agent) in cash, or by certified
check or bank draft payable to the order of the Company, the
Rights Agent shall, subject to Section 21(k), thereupon promptly
(i) (A) requisition from any transfer agent of the shares of
Preferred Stock (or make available, if the Rights Agent is the
transfer agent) certificates for the number of shares of
Preferred Stock to be purchased and the Company hereby
irrevocably authorizes its transfer agent to comply with all such
requests, or (B) if the Company, in its sole discretion, shall
have elected to deposit the shares of Preferred Stock issuable
upon exercise of the Rights hereunder into a depositary,
requisition from the depositary agent depositary receipts
representing such number of one one--thousandth of a share of
Preferred Stock as are to be purchased (in which case
certificates for the shares of Preferred Stock represented by
such receipts shall be deposited by the transfer agent with the
depositary agent) and the Company will direct the depositary
agent to comply with such request, (ii) when appropriate,
requisition from the Company the amount of cash, if any, to be
paid in lieu of issuance of fractional shares in accordance with
Section l5, (iii) promptly after receipt of such certificates or
depositary receipts, cause the same to be delivered to or upon
the order of the registered holder of such Rights Certificate,
registered in such name or names as may be designated by such
holder and (iv) when appropriate, after receipt promptly deliver
such cash to or upon the order of the registered holder of such
Rights Certificate. In the event that the Company is obligated
to issue other securities (including Common Stock) of the
Company, and/or distribute other property pursuant to
Section 11(a), the Company will make all arrangements necessary
so that such other securities and/or property are available for
distribution by the Rights Agent, if and when appropriate. In
addition, in the case of an exercise of the Rights by a holder
pursuant to Section 11(a)(ii), the Rights Agent shall return such
Rights Certificate to the registered holder thereof after
imprinting, stamping or otherwise indicating thereon that the
rights represented by such Rights Certificate no longer include
the rights provided by Section 11(a)(ii) of the Rights Agreement
and if less than all the Rights represented by such Rights
Certificate were so exercised, the Rights Agent shall indicate on
the Rights Certificate the number of Rights represented thereby
which continue to include the rights provided by
Section 11(a)(ii).
(d) In case the registered holder of any Rights
Certificate shall exercise (except pursuant to Section 11(a)(ii))
less than all the Rights evidenced thereby, a new Rights
Certificate evidencing Rights equivalent to the Rights remaining
unexercised shall be issued by the Rights Agent and delivered to
the registered holder of such Rights Certificate or to his duly
authorized assigns, subject to the provisions of Section l5
hereof.
(e) Notwithstanding anything in this Agreement to
the contrary, from and after the time an Acquiring Person or a
Transaction Person first becomes such, any Rights beneficially
owned by (i) an Acquiring Person, a Transaction Person, or an
Affiliate or Associate of an Acquiring Person, (ii) a transferee
of an Acquiring Person or a Transaction Person (or of any
Affiliate or Associate thereof) who becomes a transferee after
the Acquiring Person becomes such, or (iii) a transferee of an
Acquiring Person or a Transaction Person (or of any Affiliate or
Associate thereof) who becomes a transferee prior to or
concurrently with the Acquiring Person or a Transaction Person
becoming such and receives such Rights pursuant to either (A) a
transfer (whether or not for consideration) from the Acquiring
Person or a Transaction Person to holders of equity interests in
such Acquiring Person or a Transaction Person or to any Person
with whom the Acquiring Person or a Transaction Person has a
continuing agreement, arrangement or understanding regarding the
transferred Rights or (B) a transfer which the Board of Directors
of the Corporation has 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 Agreement or otherwise. The
Corporation shall use all reasonable efforts to insure that the
provisions of this Section 7(e) and Section 4(b) hereof are
complied with, but shall have no liability to any holder of Right
Certificates or other Person as a result of its failure to make
any determinations with respect to an Acquiring Person, a
Transaction Person, or its Affiliates, Associates or transferees
hereunder.
(f) Notwithstanding anything in this Agreement to
the contrary, neither the Rights Agent nor the Company shall be
obligated to undertake any action with respect to a registered
holder upon the occurrence of any purported exercise as set forth
in this Section 7 unless the certificate contained in the
appropriate form of election to purchase set forth on the reverse
side of the Rights Certificate surrendered for such exercise
shall have been completed and signed by the registered holder
thereof and the Company shall have been provided with such
additional evidence of the identity of the Beneficial Owner (or
former Beneficial Owner) or Affiliates or Associates thereof as
the Company shall reasonably request.
Section 8. Cancellation and Destruction of Rights
Certificates.
All Rights Certificates surrendered for the purpose
of exercise, transfer, split up, combination or exchange shall,
if surrendered to the Company or any of its agents, be delivered
to the Rights Agent for such purpose and cancellation or, if
surrendered to the Rights Agent for such purpose, shall be
canceled by it, and no Rights Certificates shall be issued in
lieu thereof except as expressly permitted by any of the
provisions of this Rights Agreement. The Company shall deliver
to the Rights Agent for cancellation and retirement, and the
Rights Agent shall so cancel and retire, any other Rights
Certificate purchased or acquired by the Company otherwise than
upon the exercise thereof. The Rights Agent shall deliver all
canceled Rights Certificates to the Company, or shall, at the
written request of the Company, destroy such canceled Rights
Certificates, and in such case shall deliver a certificate of
destruction thereof to the Company.
Section 9. Reservation and Availability of
Preferred Stock.
The Company covenants and agrees that it will cause
to be reserved and kept available out of its authorized and
unissued shares of Preferred Stock, or any authorized and issued
shares of Preferred Stock held in its treasury, the number of
shares of Preferred Stock that will be sufficient to permit the
exercise in full of all outstanding Rights and, after the
occurrence of an event specified in Section 11, shall so reserve
and keep available a sufficient number of shares of Preferred
Stock (and/or other securities) which may be required to permit
the exercise in full of the Rights pursuant to this Agreement.
So long as the shares of Preferred Stock (and, after
the occurrence of an event specified in Section 11, any other
securities) issuable upon the exercise of the Rights may be
listed on any national securities exchange, the Company shall use
its best efforts to cause, from and after such time as the Rights
become exercisable, all shares (or other securities) reserved for
such issuance to be listed on such exchange upon official notice
of issuance upon such exercise.
The Company covenants and agrees that it will take all
such action as may be necessary to ensure that all shares of
Preferred Stock, Common Stock and/or other securities delivered
upon exercise of Rights shall, at the time of delivery of the
certificates for such shares or other securities (subject to
payment of the Purchase Price), be duly and validly authorized
and issued and fully paid and nonassessable shares or securities.
The Company further covenants and agrees that it will
pay when due and payable any and all federal and state transfer
taxes and charges which may be payable in respect of the issuance
or delivery of the Rights Certificates or of any certificates for
shares of Preferred Stock, Common Stock and/or other securities
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 in respect of the issuance or delivery of the
shares of Preferred Stock, Common Stock and/or other securities
in 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 shares of Preferred Stock,
Common Stock and/or other securities 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.
The Company shall use its best efforts to (i) file, as
soon as practicable following the Distribution Date, a
registration statement under the Securities Act of 1933 (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 date of the expiration of the
rights provided by Section 11(a)(ii). The Company will also take
such action as may be appropriate under the blue sky laws of the
various states.
Section 10. Preferred Stock Record Date.
Each person in whose name any certificate for shares
of Preferred Stock (or Common Stock and/or other securities) is
issued upon the exercise of Rights shall for all purposes be
deemed to have become the holder of record of the shares of
Preferred Stock (or Common Stock and/or other securities)
represented thereby on, and such certificate shall be dated, the
date upon which the Rights Certificate evidencing such Rights was
duly presented and payment of the Purchase Price (and any
applicable transfer taxes) was made; provided, however, that if
the date of such presentation and payment is a date upon which
the Preferred Stock (or Common Stock and/or other securities)
transfer books of the Company are closed, such person shall be
deemed to have become the record holder of such shares on, and
such certificate shall be dated, the next succeeding Business Day
on which the Preferred Stock (or Common Stock and/or other
securities) 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 shares for which the Rights shall
be exercisable, including, without limitation, the right to vote,
to receive dividends or other distributions or to exercise any
preemptive rights, and shall not be entitled to receive any
notice of any proceedings of the Company, except as provided
herein.
Section 11. Adjustment of Purchase Price, Number and
Kind of Shares or Number of Rights.
The Purchase Price, the number and kind of shares
covered by each Right and the number of Rights outstanding are
subject to adjustment from time to time as provided in this
Section 11.
(a) (i) In the event the Company shall at
any time after the date of this Agreement (A) declare a
dividend on the Preferred Stock payable in shares or
fractional units of shares of Preferred Stock, (B)
subdivide the outstanding Preferred Stock, (C) combine
the outstanding Preferred Stock into a smaller number
of shares or (D) issue any shares of its capital stock
in a reclassification of the Preferred Stock (including
any such reclassification in connection with a
consolidation or merger in which the Company is the
continuing or surviving corporation), except as
otherwise provided in this Section 11(a), and Section
7(e), 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 units of one one-thousandths of a
share of Preferred Stock and the number and kind of
shares of capital stock issuable on such date upon
exercise of a Right, shall be proportionately adjusted
so that the holder of any Right exercised after such
time shall be entitled to receive the aggregate number
of units of one one-thousandths of a share of Preferred
Stock and the number and kind of shares of capital
stock and other securities which, if such Right had
been exercised immediately prior to such date and at a
time when the Preferred Stock transfer books of the
Company were open, he would have owned upon such
exercise and been entitled to receive by virtue of such
dividend, subdivision, combination or reclassification;
provided, however, that in no event shall the
consideration to be paid upon exercise of one Right be
less than the aggregate par value of the shares of
capital stock of the Company issuable upon exercise of
one Right. If an event occurs which would require an
adjustment under both Section 11(a)(i) and Section
11(a)(ii), the adjustment provided for in this Section
11(a)(i) shall be in addition to, and shall be made
prior to any adjustment required pursuant to Section
11(a)(ii).
(ii) In the event any Person, alone or
together with its Affiliates and Associates, shall
become an Acquiring Person, then proper provision shall
be made so that each holder of a Right, except as
provided in Section 7(e) hereof, shall, for a period of
60 days (or such other longer period as may be
established by action of a majority of the Board of
Directors) after the later of the occurrence of any
such event and the effective date of an appropriate
registration statement pursuant to Section 9, have a
right to receive, upon exercise thereof at the then
current Purchase Price in accordance with the terms of
this Agreement, such number of one one-thousandths of
shares of the Preferred Stock as shall equal the result
obtained by (x) multiplying the then current Purchase
Price by the then number of one one-thousandths of a
share of Preferred Stock for which a Right is
exercisable immediately prior to the first occurrence
of such event and dividing that product by (y) 50% of
the current market price per one two-thousandths of a
share of the Preferred Stock (determined pursuant to
Section 11(d)) on the date of such first occurrence
(such number of one one-thousandths of a share being
referred to as the "number of Adjustment Shares").
(iii) In the event that there shall not
be sufficient authorized but unissued shares of
Preferred Stock to permit the exercise in full of the
Rights in accordance with the foregoing subparagraph
(ii), then, in the event the Rights become so
exercisable, notwithstanding any other provision of
this Agreement, to the extent necessary and permitted
by applicable law and any agreements in effect on the
date hereof to which it is a party, each Right shall
thereafter represent the right to receive, upon
exercise thereof at the then current Purchase Price in
accordance with the terms of this Agreement, a number
of shares of Common Stock equal to the number of
Adjustment Shares or a number of shares, or units of
shares, of preferred stock equal to the number of
Adjustment Shares where the Board of Directors of the
Company shall have deemed such shares or units to have
at least the same or more favorable rights, privileges
and preferences as the Preferred Stock (an "equivalent
preferred stock") or a combination of Preferred Stock
and/or Common Stock and/or equivalent preferred stock
having the requisite value as determined by the Board
of Directors; provided, however, if there are
unavailable sufficient shares of Preferred Stock and/or
Common Stock and/or equivalent preferred stock, then
the Company shall take all such action as may be
necessary to authorize additional shares of Preferred
Stock and/or equivalent preferred stock and/or shares
of Common Stock for issuance upon exercise of the
Rights, including the calling of or meeting of
shareholders; and provided, further, that if the
Company is unable to cause sufficient shares of
Preferred Stock and/or equivalent preferred stock
and/or shares of Common Stock to be available for
issuance upon exercise in full of the Rights, then each
Right shall thereafter represent the right to receive
the Adjusted Number of Preferred Shares upon exercise
at the Adjusted Purchase Price (as such terms are
hereinafter defined.) As used herein, the term
Adjusted Number of Preferred Shares shall be equal to
that number of one one-thousandths of a share of
Preferred Stock (and/or shares or units of equivalent
preferred stock and/or shares of Common Stock) equal to
the product of (x) the number of Adjustment Shares and
(y) a fraction, the numerator of which is the number of
one one-thousandths of a share of Preferred Stock
(and/or shares or units of equivalent preferred stock
and/or shares of Common Stock) available for issuance
upon exercise of the Rights and the denominator of
which is the aggregate number of Adjustment Shares
otherwise issuable upon exercise in full of all Rights
(assuming there were sufficient shares of Preferred
Stock available) (such fraction being referred to as
the "Proration Factor"). The Adjusted Purchase Price
shall mean the product of the Purchase Price and the
Proration Factor. The Board of Directors may, but
shall not be required to, establish procedures to
allocate the right to receive Preferred Stock,
equivalent preferred stock and shares of Common Stock
upon exercise of the Rights among holders of Rights.
(b) If the Company shall fix a record date for
the issuance of rights, options or warrants to all holders of
Preferred Stock entitling them (for a period expiring within 45
calendar days after such record date) to subscribe for or
purchase Preferred Stock (or equivalent preferred stock or
securities convertible into Preferred Stock or equivalent
preferred stock) at a price per share of Preferred Stock or per
share of equivalent preferred stock (or having a conversion price
per share, if a security convertible into Preferred Stock or
equivalent preferred stock) less than the current market price
(as defined in Section 11(d) per share of Preferred Stock on such
record date, the Purchase Price to be in effect after such record
date shall be determined by multiplying the Purchase Price in
effect immediately prior to such record date by a fraction, the
numerator of which shall be the number of shares of Preferred
Stock outstanding on such record date, plus the number of shares
of Preferred Stock which the aggregate offering price of the
total number of shares of Preferred Stock and/or equivalent
preferred stock to be offered (and/or the aggregate initial
conversion price of the convertible securities so to be offered)
would purchase at such current market price and the denominator
of which shall be the number of shares of Preferred Stock
outstanding on such record date, plus the number of additional
shares of Preferred Stock and/or equivalent preferred stock to be
offered for subscription or purchase (or into which the
convertible securities so to be offered are initially
convertible); provided, however, that in no event shall the
consideration to be paid upon exercise of one Right be less than
the aggregate par value of the shares of capital stock of the
Company issuable upon exercise of one Right. In case such
subscription price may be paid in a consideration part or all of
which shall be in a form other than cash, the value of such
consideration shall be determined reasonably and with good faith
to the holders of Rights by the Board of Directors of the
Company, whose determination shall be described in a statement
filed with the Rights Agent and shall be binding on the Rights
Agent. Shares of Preferred Stock owned by or held for the
account of the Company shall not be deemed outstanding for the
purpose of any such computation. Such adjustment shall be made
successively whenever such a record date is fixed; and in the
event that such rights 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) If the Company shall fix a record date for
the making of a distribution to all holders of Preferred Stock
(including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing
corporation) of evidences of indebtedness, cash (other than a
regular quarterly cash dividend out of the earnings or retained
earnings of the Company), assets (other than a dividend payable
in Preferred Stock, but including any dividend payable in stock
other than Preferred Stock) or subscription rights or warrants
(excluding those referred to in Section 11(b)), the Purchase
Price to be in effect after such record date shall be determined
by multiplying the Purchase Price in effect immediately prior to
such record date by a fraction, the numerator of which shall be
the current market price (as defined in Section 11(d)) per share
of Preferred Stock on such record date, less the fair market
value (as determined reasonably and with good faith to the
holders of Rights by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the
Rights Agent and shall be binding on the Rights Agent) of the
portion of the cash, assets or evidences of indebtedness so to be
distributed or of such subscription rights or warrants
distributable in respect of one share of Preferred Stock and the
denominator of which shall be current market price per share of
the Preferred Stock; provided, however, that in no event shall
the consideration to be paid upon exercise of one Right be less
than the aggregate par value of the shares of capital stock of
the Company issuable upon exercise of one Right. Such
adjustments shall be made successively whenever such a record
date is fixed; and in the event that such distribution is not so
made, the Purchase Price shall again be adjusted to be the
Purchase Price which would be in effect if such record date had
not been fixed.
(d) (i) For the purpose of any computation
hereunder, other than in Section 11(a)(iii), the "current market
price" per share of Common Stock on any date shall be deemed to
be the average of the daily closing prices per share of such
Common Stock for the 30 consecutive Trading Days (as such term is
hereinafter defined) immediately prior to such date; provided,
however, that in the event that the current per share market
price of the Common Stock is determined during a period following
the announcement by the issuer of such Common Stock of (A) a
dividend or distribution on such Common Stock payable in shares
of such Common Stock or securities convertible into shares of
such Common Stock or (B) any subdivision, combination or
reclassification of such Common Stock, and prior to the
expiration of 30 Trading Days after the ex--dividend date for
such dividend or distribution, or the record date for such
subdivision, combination or reclassification, then, and in each
such case, the "current market price" shall be properly adjusted
to take into account ex--dividend trading. The closing price for
each day shall be the last sale price, regular way, or, in case
no such sale takes place on such day, the average of the closing
bid and asked prices, regular way, in either case as reported in
the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the New
York Stock Exchange or, if the shares of Common Stock are not
listed or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting
system with respect to securities listed on the principal
national securities exchange on which the shares of Common Stock
are listed or admitted to trading or, if the shares of Common
Stock are not listed or admitted to trading on any national
securities exchange, the last quoted price or, if not so quoted,
the average of the high bid and low asked prices in the over--the-
- -counter market, as reported by the National Association of
Securities Dealers, Inc. Automated Quotation System ("NASDAQ") or
such other system then in use, or, if on any such date the shares
of Common Stock are not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Common Stock
selected by the Board of Directors of the Company. If on any
such date no market maker is making a market in the Common Stock,
the fair value of such shares on such date as determined
reasonably and with good faith by the Board of Directors of the
Company shall be used and shall be binding on the Rights Agent.
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 determined reasonably and with good faith to
the holders of Rights by the Board of Directors of the Company,
whose determination shall be described in a statement filed with
the Rights Agent and shall be binding on the Rights Agent.
(ii) For the purpose of any computation
hereunder, the "current market price" per share (or one one-
thousandths of a share) of Preferred Stock or any other security
shall be determined in the same manner as set forth above for the
Common Stock in clause (i) of this Section 11(d) (other than the
last sentence thereof). If the current market price per share
(or one one-thousandths of a share) of Preferred Stock cannot be
determined in the manner provided above or if the Preferred Stock
is not publicly held or listed or traded in a manner described in
clause (i) of this Section 11(d), the "current market price" per
share of Preferred Stock shall be conclusively deemed to be an
amount equal to 1,000 (as such number may be appropriately
adjusted for such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock occurring
after the date of this Agreement) multiplied by the current
market price per share of the Common Stock and the "current
market price" per one one-thousandths of a share of Preferred
Stock shall be equal to the current market price per share of the
Common Stock (as appropriately adjusted). If neither the Common
Stock nor the Preferred Stock is publicly held or so listed or
traded, "current market price" per share shall mean the fair
value per share as determined in good faith by the Board of
Directors of the Company, whose determination shall be described
in a statement filed with the Rights Agent and shall be
conclusive for all purposes.
(e) Anything herein to the contrary
notwithstanding, no adjustment in the Purchase Price shall be
required unless such adjustment would require an increase or
decrease of at least 1% in the Purchase Price; provided, however,
that any adjustments which by reason of this Section 11(e) are
not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under
this Section 11 shall be made to the nearest cent or to the
nearest ten--thousandth of a share of Common Stock or other share
or one ten-millionth of a share of Preferred Stock (or any other
security), as the case may be. Notwithstanding the first
sentence of this Section 11(e), any adjustment required by this
Section 11 shall be made no later than the earlier of (i) three
years from the date of the transaction which mandates such
adjustment or (ii) the Expiration Date.
(f) If as a result of any provision of Section
11(a) or Section 13(a), the holder of any Right thereafter
exercised shall become entitled to receive any shares of capital
stock of the Company other than Preferred Stock, thereafter the
number of such other shares so receivable upon exercise of any
Right shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the
provisions with respect to the shares contained in Section 11(a)
through (c), inclusive, and the provisions of Sections 7, 9, 10,
13 and 15 hereof with respect to the Preferred Stock shall apply
on like terms to any such other shares.
(g) All Rights originally issued by the Company
subsequent to any adjustment made to the Purchase Price hereunder
shall evidence the right to purchase, at the adjusted Purchase
Price, the number of shares of Preferred Stock purchasable from
time to time hereunder upon exercise of the Rights, all subject
to further adjustment as provided herein.
(h) Unless the Company shall have exercised its
election as provided in Section 11(i), upon each adjustment of
the Purchase Price as a result of the calculations made in
Section 11(b) and (c), each Right outstanding immediately prior
to the making of such adjustment shall thereafter evidence the
right to purchase, at the adjusted Purchase Price, that number of
one one--thousandths of a share of Preferred Stock (calculated to
the nearest one--millionth) obtained by (i) multiplying (x) the
number of one one--thousandths of a share of Preferred Stock
covered by a Right immediately prior to this adjustment by (y)
the Purchase Price in effect immediately prior to such adjustment
of the Purchase Price and (ii) dividing the product so obtained
by the Purchase Price in effect immediately after such adjustment
of the Purchase Price.
(i) The Company may elect on or after the date of
any adjustment of the Purchase Price to adjust the number of
Rights, in substitution for any adjustment in the number of
shares of Preferred Stock purchasable upon the exercise of a
Right. Each of the Rights outstanding after the adjustment in
the number of Rights shall be exercisable for the number of one
one--thousandths of a share of Preferred Stock for which a Right
was exercisable immediately prior to such adjustment. Each Right
held of record prior to such adjustment of the number of Rights
shall become that number of Rights (calculated to the nearest 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 10 days later than the date of the public
announcement. If Rights Certificates have been issued, upon each
adjustment of the number of Rights pursuant to this Section
11(i), the Company shall, as promptly as practicable, cause to be
distributed to holders of record of Rights Certificates on such
record date Rights Certificates evidencing, subject to Section 15
hereof, the additional Rights to which such holders shall be
entitled as a result of such adjustment, or, at the option of the
Company, shall cause to be distributed to such holders of record
in substitution and replacement for the Rights Certificates held
by such holders prior to the date of adjustment, and upon
surrender thereof, if required by the Company, new Rights
Certificates evidencing all the Rights to which such holders
shall be entitled after such adjustment. Rights Certificates so
to be distributed shall be issued, executed and countersigned in
the manner provided for herein (and may bear, at the option of
the Company, the adjusted Purchase Price) and shall be registered
in the names of the holders of record of Rights Certificates on
the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in
the Purchase Price or the number of one one-thousandth of a share
of Preferred Stock issuable upon the exercise of the Rights, the
Rights Certificates theretofore and thereafter issued may
continue to express the Purchase Price per share and the number
of shares which were expressed in the initial Rights Certificates
issued hereunder.
(k) Before taking any action that would cause an
adjustment reducing the Purchase Price below the then stated or
par value, if any, of the shares of Preferred Stock, Common Stock
or other securities issuable upon exercise of the Rights, the
Company shall take any corporate action which may, in the opinion
of its counsel, be necessary in order that the Company may
validly and legally issue fully paid and nonassessable shares of
Preferred Stock, Common Stock or other securities at such
adjusted Purchase Price.
(l) In any case in which this Section 11 shall
require that an adjustment in the Purchase Price be made
effective as of a record date for a specified event, the Company
may elect to defer until the occurrence of such event the issuing
to the holder of any Right exercised after such record date the
shares of Preferred Stock and other capital stock or securities
of the Company, if any, issuable upon such exercise over and
above the shares of Preferred Stock and other capital stock or
securities of the Company, if any, issuable upon such exercise on
the basis of the Purchase Price in effect prior to such
adjustment; provided, however, that the Company shall deliver to
such holder a due bill or other appropriate instrument evidencing
such holder's right to receive such additional shares upon the
occurrence of the event requiring such adjustment.
(m) Anything to the contrary in this Section 11
notwithstanding, the Company, by action of a majority of the
Board of Directors, shall be entitled to make such reductions in
the Purchase Price, in addition to those adjustments expressly
required by this Section 11, as and to the extent that it in its
sole discretion shall determine to be advisable in order that any
consolidation or subdivision of the Preferred Stock, issuance
wholly for cash of any shares of Preferred Stock at less than the
current market price, issuance wholly for cash of shares of
Preferred Stock or securities which by their terms are
convertible into or exchangeable for shares of Preferred Stock,
stock dividends or issuance of rights, options or warrants
referred to hereinabove in this Section 11, hereafter made by the
Company to holders of its Preferred Stock shall not be taxable to
such stockholders.
(n) The Company covenants and agrees that it
shall not, at any time after the Distribution Date,
(i) consolidate with any other Person (other than a subsidiary of
the Company in a transaction which does not violate Section 11(o)
hereof), (ii) merge with or into any other Person (other than a
subsidiary of the Company in a transaction which does not violate
Section 11(o) hereof, or (iii) sell or transfer (or permit any
subsidiary to sell or transfer), in one transaction, or a series
of related transactions, assets or earning power aggregating more
than 50% of the assets or earning power of the Company and its
subsidiaries (taken as a whole) to any other Person or Persons
(other than the Company and/or any of its subsidiaries in one or
more transactions each of which does not violate Section 11(o)
hereof), if (x) at the time of or immediately after such
consolidation, merger, sale or transfer there are any charter or
by-law provisions or any rights, warrants or other instruments or
securities outstanding or agreements in effect or other actions
taken, which would materially diminish or otherwise eliminate the
benefits intended to be afforded by the Rights or (y) prior to,
simultaneously with or immediately after such consolidation,
merger 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. The Company shall not consummate any such
consolidation, merger, sale or transfer unless prior thereto the
Company and such other Person shall have executed and delivered
to the Rights Agent a certificate certifying compliance with this
Section 11(n).
(o) The Company covenants and agrees that, after
the Distribution Date, it will not, except as permitted by
Section 23 or Section 26 hereof, take (or permit any subsidiary
to take) any action the purpose of which is to, or if at the time
such action is taken it is reasonably foreseeable that the effect
of such action is to, materially diminish or otherwise eliminate
the benefits intended to be afforded by the Rights.
(p) Anything in this Agreement to the contrary
notwithstanding, in the event that the Company shall at any time
after the date of this Agreement and prior to the Distribution
Date (i) declare or pay a dividend on the outstanding shares of
Common Stock payable in shares of Common Stock, (ii) subdivide
the outstanding Common Stock, (iii) combine or consolidate the
outstanding Common Stock into a smaller number of shares, or
(iv) issue any shares of its capital stock in a reclassification
of the outstanding Common Stock, then in any such case, 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. The adjustments provided for in this
Section 11(p) shall be made successively whenever such a dividend
is declared or paid or such a subdivision, combination,
consolidation or reclassification is effected.
(q) The exercise of Rights under Section
11(a)(ii) shall only result in the loss of rights under Section
11(a)(ii) to the extent so exercised and shall not otherwise
affect the rights represented by the Rights under this Rights
Agreement, including the rights represented by Section 13.
Section 12. Certificate of Adjusted Purchase Price
or Number of Shares.
Whenever an adjustment is made as provided in
Sections 11 and 13 hereof, the Company shall (a) promptly prepare
a certificate setting forth such adjustment and a brief statement
of the facts accounting for such adjustment, (b) promptly file
with the Rights Agent and with each transfer agent for the
Preferred Stock and the Common Stock a copy of such certificate
and (c) mail a brief summary thereof to each holder of a Rights
Certificate in accordance with Section 26 hereof. The Rights
Agent shall be fully protected in relying on any such certificate
and on any adjustment therein contained and shall not be deemed
to have knowledge of 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, on or following the Stock
Acquisition Date or, if a Transaction is proposed, the
Distribution Date, directly or indirectly, (x) the Company shall
consolidate with, or merge with and into, any other Person, (y)
any Person shall consolidate with the Company, or merge with and
into the Company and the Company shall be the continuing or
surviving corporation of such merger and, in connection with such
merger, all or part of the 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 all holders of
shares of Common Stock are not treated alike or following the
merger or consolidation the holders of Common Stock immediately
prior to the transaction do not hold in the same proportion all
of the voting power of the corporation surviving the transaction,
or (z) the Company shall sell, mortgage or otherwise transfer (or
one or more of its subsidiaries shall sell, mortgage or otherwise
transfer), in one or more transactions, assets or earning power
aggregating more than 50% of the assets or earning power of the
Company and its subsidiaries (taken as a whole) to any other
Person, then, and in each such case, proper provision shall be
made so that (i) following the Distribution Date, each holder of
a Right, shall have the right to receive, upon the exercise
thereof at the then current Purchase Price in accordance with the
terms of this Agreement, such number of shares of freely tradable
Common Stock of the Principal Party (as hereinafter defined),
free and clear of liens, rights of call or first refusal,
encumbrances or other adverse claims, as shall be equal to the
result obtained by (1) multiplying the then current Purchase
Price by the number of one one--thousandths of a share of
Preferred Stock for which a Right is then exercisable and
dividing that product by (2) 50% of the current market price per
share of the Common Stock of such Principal Party (determined
pursuant to Section 11(d) hereof) on the date of consummation of
such consolidation, merger, sale or transfer; (ii) such Principal
Party shall thereafter be liable for, and shall assume, by virtue
of such consolidation, merger sale or transfer, all the
obligations and duties of the Company pursuant to this Agreement;
(iii) 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 to such Principal
Party; and (iv) such Principal Party shall take such steps
(including, but not limited to, the reservation of a sufficient
number of shares of its Common Stock in accordance with Section 9
hereof) in connection with such consummation as may be necessary
to assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be, in relation to its
shares of Common Stock thereafter deliverable upon the exercise
of the Rights.
(b) "Principal Party" shall mean
(i) in the case of any transaction described
in (x) or (y) of the first sentence of this Section 13,
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 the merger or consolidation (including, if
applicable, the Company if it is the surviving
corporation); and
(ii) in the case of any transaction described
in (z) of the first sentence in this Section 13, 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 12--month period registered under Section 12
of the Exchange Act, and such Person is a direct or indirect
subsidiary or Affiliate of another Person, "Principal Party"
shall refer to such other Person; (2) in case such Person is a
subsidiary, directly or indirectly, or Affiliate of more than one
Person, the Common Stocks of two or more of which are and have
been so registered, "Principal Party" shall refer to whichever of
such Persons is the issuer of the Common Stock having the
greatest aggregate market value; and (3) in case such Person is
owned, directly or indirectly, by a joint venture formed by two
or more Persons that are not owned, directly or indirectly, by
the same Person, the rules set forth in (1) and (2) above shall
apply to each of the chains of ownership having an interest in
such joint venture as if such party were a "Subsidiary" of both
or all of such joint venturers and the Principal Parties in each
such chain shall bear the obligations set forth in this Section
13 in the same ratio as their direct or indirect interests in
such Person bear to the total of such interests.
(c) The Company shall not consummate any such
consolidation, merger, sale or transfer unless prior thereto the
Company and each Principal Party and each other Person who may
become a Principal Party as a result of such consolidation,
merger, sale or transfer shall have a sufficient number of shares
of its authorized Common Stock which have not been issued or
reserved for issuance in order to permit the exercise in full of
the Rights in accordance with this Section 13 and shall have
executed and delivered to the Rights Agent a supplemental
agreement providing for the terms set forth in paragraphs (a) and
(b) of this Section 13 and further providing that, as soon as
practicable after the date of any consolidation, merger, sale or
transfer of assets mentioned in paragraph (a) of this Section 13,
the Principal Party at its own expense will
(i) prepare and file a registration
statement under the Act with respect to the Rights and
the securities purchasable upon exercise of the Rights
on an appropriate form, will use its best efforts to
cause such registration statement to become effective
as soon as practicable after such filing and will use
its best efforts to cause such registration statement
to remain effective (with a prospectus at all times
meeting the requirements of the Act) until the
Expiration Date;
(ii) use its best efforts to qualify or
register the Rights and the securities purchasable upon
exercise of the Rights under the blue sky laws of such
jurisdictions as may be necessary or appropriate; and
(iii) deliver to holders of the Rights
historical financial statements for the Principal Party
and each of its Affiliates which comply in all material
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.
The rights under this Section 13 shall be in addition to the
rights to exercise Rights and adjustments under Section 11(a)(ii)
and shall survive any exercise thereunder.
(d) The Company shall not consummate any such
consolidation, merger, sale or transfer which shall be a
Transaction unless prior thereto certificates evidencing the
Rights have been distributed in accordance with Section 3(a) to
holders of shares of Common Stock twenty business days prior to
the date on which the Transaction becomes effective or is
consummated.
Section 14. Additional Covenant.
Notwithstanding any other provision of this
Agreement, no adjustment to the Purchase Price, the number of
shares (or fractions of a share) of Preferred Stock, Common Stock
or other securities for which a Right is exercisable or the
number of Rights outstanding or any similar adjustment shall be
made or be effective if such adjustment would have the effect of
reducing or limiting the benefits the holders of the Rights would
have had absent such adjustment, including, without limitation,
the benefits under Section 11(a)(ii) and Section 13, unless the
terms of this Agreement are amended so as to preserve such
benefits.
Section 15. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue
fractions of Rights, except prior to the Distribution Date as
provided in Section 11(n), or to distribute Rights Certificates
which evidence fractional Rights. In lieu of such fractional
Rights, there shall be paid to the registered holders of the
Rights Certificates with regard to which such fractional Rights
would otherwise be issuable, an amount in cash equal to the same
fraction of the current market value of a whole Right. For the
purposes of this Section 15(a), the current market value of a
whole Right shall be the closing price of the Rights for the
Trading Day immediately prior to the date on which such
fractional Rights would have been otherwise issuable. The
closing price of the Rights for any day shall be the last sale
price, regular way, or, in case no such sale takes place on such
day, the average of the closing bid and asked prices, regular
way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange or, if the
Rights are not listed or admitted to trading on the New York
Stock Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities listed on
the principal national securities exchange on which the Rights
are listed or admitted to trading, or if the Rights are not
listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the average
of the high bid and low asked prices in the over--the--counter
market, as reported by NASDAQ or such other system then in use
or, if on any such date the Rights are not quoted by any such
organization, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in the
Rights selected by the Board of Directors of the Company. If on
any such date no such market maker is making a market in the
Rights the fair value of the Rights on such date as determined
reasonably and with good faith to the holders of Rights by the
Board of Directors of the Company shall be used and shall be
binding on the Rights Agent.
(b) The Company shall not be required to issue
fractions of shares of Preferred Stock (other than fractions
which are integral multiples of one one--thousandth of a share of
Preferred Stock) upon exercise of the Rights or to distribute
certificates which evidence fractional shares of Preferred Stock
(other than fractions which are integral multiples of one one--
thousandth of a share of Preferred Stock). In lieu of fractional
shares of Preferred Stock that are not integral multiples of one
one--thousandth of a share of Preferred Stock, the Company may
pay to the registered holders of Right Certificates at the time
such Rights are exercised as herein provided an amount in cash
equal to the same fraction of the current market value of one one-
- -thousandth of a share of Preferred Stock. For purposes of this
Section 15(b), the current market value of one one--thousandth of
a share of Preferred Stock shall be one one--thousandth of the
closing price of a share of Preferred Stock (as determined
pursuant to of Section 11(d)(ii) hereof) for the Trading Day
immediately prior to the date of such exercise.
(c) Following the occurrence of one of the
transactions or events specified in Section 11 giving rise to the
right to receive one one-thousandth of a share of Preferred
Stock, Common Stock, or other securities upon the exercise of a
Right, the Company shall not be required to issue fractions of
shares of Common Stock upon exercise of the Rights or to
distribute certificates which evidence fractional shares of
Common Stock. In lieu of fractional units of one one-thousandth
of a share of Preferred Stock or fractional shares of any such
other securities, the Company may pay to the registered holders
of Right Certificates at the time such Rights are exercised as
herein provided an amount in cash equal to the same fraction of
the current market value of a unit or share of such securities,
as the case may be. For purposes of this Section 15(c), the
current market value of any such unit or share shall be the
closing price of a share of Common Stock (as determined pursuant
to Section 11(d)(ii) hereof) for the Trading Day immediately
prior to the date of such exercise.
(d) The holder of a Right by the acceptance of
the Rights expressly waives his right to receive any fractional
Rights or any fractional shares upon exercise of a Right.
Section 16. Rights of Action.
All rights of action in respect of this Agreement
(other than rights of action given to the Rights Agent under
Section 19 hereof) are vested in the respective registered
holders of the Rights Certificates (and, prior to the
Distribution Date, the registered holders of the Common Stock);
and any registered holder of any Rights Certificate (or, prior to
the Distribution Date, of the Common Stock), without the consent
of the Rights Agent or of the holder of any other Rights
Certificate (or, prior to the Distribution Date, of the Common
Stock), may, in his own behalf and for his own benefit, enforce,
and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise act in respect of,
his right to exercise the Rights evidenced by such Rights
Certificate in the manner provided in such Rights Certificate and
in this Agreement. Without limiting the foregoing or any
remedies available to the holders of Rights, it is specifically
acknowledged that the holders of Rights would not have an
adequate remedy at law for any breach of this Agreement and shall
be entitled to specific performance of the obligations hereunder
and injunctive relief against actual or threatened violations of
the obligations hereunder of any Person subject to this
Agreement. Holders of Rights shall be entitled to recover the
reasonable costs and expenses, including attorneys' fees,
incurred by them in any action to enforce the provisions of this
Agreement in which they successfully prosecute their claims.
Section 17. Agreement of Rights Holders.
Every holder of a Right by accepting the same
consents and agrees with the Company and the Rights Agent and
with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights
will be transferable only in connection with the transfer of
Common Stock;
(b) after the Distribution Date, the Rights
Certificates are transferable only on the registry books of the
Rights Agent if surrendered at the principal office of the Rights
Agent, duly endorsed or accompanied by a proper instrument of
transfer;
(c) subject to Section 6 and Section 7(f) hereof,
the Company and the Rights Agent may deem and treat the person in
whose name a Rights Certificate (or, prior to the Distribution
Date, the associated Common Stock certificate) is registered as
the absolute owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing on the
Rights Certificates or the associated Common Stock certificate
made by anyone other than the Company or the Rights Agent) for
all purposes whatsoever, and neither the Company nor the Rights
Agent, subject to the last sentence of Section 7(e) hereof, shall
be affected by any notice to the contrary; and
(d) notwithstanding anything in this Agreement to
the contrary, neither the Company nor the Rights Agent shall have
any liability to any holder of a Right or a beneficial interest
in a Right or other Person as a result of its inability to
perform any of its obligations under this Agreement by reason of
any preliminary or permanent injunction or other order, decree or
ruling issued by a court of competent jurisdiction or by a
governmental, regulatory or administrative agency or commission,
or any statute, rule, regulation or executive order promulgated
or enacted by any governmental authority, prohibiting or
otherwise restraining performance of such obligation; provided,
however, the Company shall not have sought or otherwise
cooperated in obtaining such order, decree or ruling and must use
its best efforts to have any such order, decree or ruling lifted
or otherwise overturned as soon as possible.
Section 18. 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 shares of Preferred Stock, 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 of the Company or any
right to vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of
meetings or other actions affecting stockholders (except as
provided in Section 25 hereof), or to receive dividends or
subscription rights, or otherwise, until the Right or Rights
evidenced by such Rights Certificate shall have been exercised in
accordance with the provisions thereof.
Section 19. Concerning the Rights Agent.
The Company agrees to pay to the Rights Agent
reasonable compensation for all services rendered by it hereunder
and, from time to time, on demand of the Rights Agent, its
reasonable expenses and counsel fees and disbursements and other
disbursements incurred in the administration and execution of
this Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights Agent
for, and to hold it harmless against, any loss, liability,
damage, claim, or expense, incurred without negligence, bad faith
or willful misconduct on the part of the Rights Agent, for
anything done or omitted by the Rights Agent in connection with
the acceptance and administration of this Agreement, including
the costs and expenses (including reasonable attorney's fees and
expenses) of defending against any claim of liability arising
therefrom, directly or indirectly. The indemnity provided for in
this Section 19 shall survive the expiration of the Rights and
the termination of this Agreement.
The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or
omitted by it in connection with its administration of this
Agreement in reliance upon any Rights Certificate or certificate
for Common Stock or for other securities of the Company,
instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent,
certificate, statement, or other paper or document believed by it
to be genuine and to be signed, executed and, where necessary,
verified or acknowledged, by the proper Person or Persons.
Section 20. Merger or Consolidation or Change of
Name of Rights Agent.
Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or
consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any corporation succeeding to the
corporate trust business of the Rights Agent or any successor
Rights Agent, shall be the successor to the Rights Agent under
this Agreement without the execution or filing of any paper or
any further act on the part of any of the parties hereto,
provided that such corporation would be eligible for appointment
as a successor Rights Agent under the provisions of Section 22
hereof. In case at the time such successor Rights Agent shall
succeed to the agency created by this Agreement, any of the
Rights Certificates shall have been countersigned but not
delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver such
Rights Certificates so countersigned; and in case at that time
any of the Rights Certificates shall not have been countersigned,
any successor Rights Agent may countersign such Rights
Certificates either in the name of the predecessor or in the name
of the successor Rights Agent; and in all such cases such Rights
Certificates shall have the full force provided in the Rights
Certificates in this Agreement.
In case at any time the name of the Rights Agent shall
be changed and at such time any of the Rights Certificates shall
have been countersigned but not delivered, the Rights Agent may
adopt the countersignature under its prior name and deliver
Rights Certificates so countersigned; and in case at that time
any of the Rights Certificates shall not have been countersigned,
the Rights Agent may countersign such Rights Certificates either
in its prior name or in its changed name; and in all such cases
such Rights Certificates shall have the full force provided in
the Rights Certificates and in this Agreement.
Section 21. Duties of Rights Agent.
The Rights Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms
and conditions, by all of which the Company and the holders of
Rights Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal
counsel selected by it (who may be legal counsel for the
Company), and the opinion of such counsel shall be full and
complete authorization and protection to the Rights Agent as to
any action taken or omitted by it in good faith and in accordance
with such opinion.
(b) Whenever in the performance of its duties
under this Agreement the Rights Agent shall deem it necessary or
desirable that any fact or matter (including, without limitation,
the identity of any Acquiring Person) be proved or established by
the Company prior to taking or suffering any action hereunder,
such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by the Chairman of
the Board, any Vice Chairman of the Board, the President, any
Vice President, the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of the Company and delivered
to the Rights Agent; and such certificate shall be full
authorization to the Rights Agent for any action taken or
suffered in good faith by it under the provisions of this
Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder
only for its own negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or
by reason of any of the statements of fact or recitals contained
in this Agreement or in the Rights Certificates (except as to the
fact that it has countersigned the Rights Certificates) or be
required to verify the same, but all such statements and recitals
are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any
responsibility in respect of the validity of this Agreement or
the execution and delivery hereof (except the due execution
hereof by the Rights Agent) or in respect of the validity or
execution of any Rights Certificate (except its countersignature
thereof); nor shall it be responsible for any Rights becoming
null and void pursuant to Section 7(e) hereof or for any breach
by the Company of any covenant or condition contained in this
Agreement or in any Rights Certificate; nor shall it be
responsible for any adjustment required under the provisions of
Sections 11 or 13 hereof or responsible for the manner, method or
amount of any such adjustment or the ascertaining of the
existence of facts that would require any such adjustment (except
with respect to the exercise of Rights evidenced by Rights
Certificates after actual notice of any such adjustment); nor
shall it be responsible for any determination by the Board of
Directors of the Company of the current market value of the
Rights or Preferred Stock or Common Stock pursuant to the
provisions of Section 15 hereof; nor shall it by any act
hereunder be deemed to make any representation or warranty as to
the authorization or reservation of any shares of Preferred Stock
or Common Stock to be issued pursuant to this Agreement or any
Rights Certificate or as to whether any shares of Preferred Stock
(or fractional shares thereof) or Common Stock will, when so
issued, be validly authorized and issued, fully paid and
nonassessable.
(f) The Company agrees that it will perform,
execute, acknowledge and deliver or cause to be performed,
executed, acknowledged and delivered all such further and other
acts, instruments and assurances as may reasonably be required by
the Rights Agent for the carrying out or performing by the Rights
Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and
directed to accept instructions with respect to the performance
of its duties hereunder and certificates delivered pursuant to
any provision hereof from the Chairman of the Board, any Vice
Chairman of the Board, the President, any Vice President, or the
Secretary of the Company, and is authorized to apply to such
officers for advice or instructions in connection with its
duties, and it shall not be liable for any action taken or
suffered to be taken by it in good faith in accordance with
instructions of any such officer. Any application by the Rights
Agent for written instructions from the Company may at the option
of the Rights Agent, set forth in writing any action proposed to
be taken or omitted by the Rights Agent with respect to its
duties or obligations under this Agreement and the date on and/or
after which such action taken or omitted in accordance with a
proposal included in any such application on or after the date
specified therein (which date shall not be less than three
Business Days after the date any such officer actually receives
such application, unless any such officer shall have consented in
writing to an earlier date) unless, prior to taking or omitting
any such action, the Rights Agent has received written
instructions from the Company in response to such application
specifying the action to be taken or omitted.
(h) The Rights Agent and any stockholder,
director, officer or employee of the Rights Agent may buy, sell
or deal in any of the Rights or other securities of the Company
or become pecuniarily interested in any transaction in which the
Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as though it were
not Rights Agent under this Agreement. Nothing herein shall
preclude the Rights Agent from acting in any other capacity for
the Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any
of the rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or agents,
and the Rights Agent shall not be answerable or accountable for
any act, omission, default, neglect or misconduct of any such
attorneys or agents or for any loss to the Company or to the
holders of the Rights resulting from any such act, omission,
default, neglect or misconduct, provided reasonable care was
exercised in the selection and continued employment thereof.
(j) No provision of this Agreement shall require
the Rights Agent to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its
duties hereunder or in the exercise of its rights if there shall
be reasonable grounds for believing that repayment of such funds
or adequate indemnification against such risk or liability is not
reasonably assured to it.
(k) If, with respect to any Rights Certificate
surrendered to the Rights Agent for exercise or transfer, the
certificate attached to the form of assignment or form of
election to purchase, as the case may be, has either not been
completed or indicates an affirmative response to clause 1 and/or
2 thereof, the Rights Agent shall not take any further action
with respect to such requested exercise of transfer without first
consulting with the Company.
Section 22. Change of Rights Agent.
The Rights Agent or any successor Rights Agent may
resign and be discharged from its duties under this Agreement
upon 30 days' notice in writing mailed to the Company and to each
transfer agent of the Common Stock and Preferred Stock by
registered or certified mail, and, subsequent to the Distribution
Date, to holders of the Rights Certificates by first--class mail.
The Company may remove the Rights Agent or any successor Rights
Agent upon 30 days' notice in writing, mailed to the Rights Agent
or successor Rights Agent, as the case may be, and to each
transfer agent of the Common Stock and Preferred Stock by
registered or certified mail, and, subsequent to the Distribution
Date, to the holders of the Rights Certificates by first--class
mail. If the Rights Agent shall resign or be removed or shall
otherwise become incapable of acting, the Company shall appoint a
successor to the Rights Agent. If the Company shall fail to make
such appointment within a period of 30 days after giving notice
of such removal or after it has been notified in writing of such
resignation or incapacity by the resigning or incapacitated
Rights Agent or by the holder of a Rights Certificate (who shall,
with such notice, submit his Rights Certificate for inspection by
the Company), then the registered holder of any Rights
Certificate may apply to any court of competent jurisdiction for
the appointment of a new Rights Agent. Any successor Rights
Agent, whether appointed by the Company or by such a court, shall
be a corporation organized and doing business under the laws of
the United States or of any state, in good standing, which is
authorized under such laws to exercise corporate trust powers and
is subject to supervision or examination by federal or state
authority and which has at the time of its appointment as Rights
Agent a combined capital and surplus of at least $50,000,000.
After appointment, the successor Rights Agent shall be vested
with the same powers, rights, duties and responsibilities as if
it had been originally named as Right Agent without further act
or deed; but the predecessor Rights Agent shall deliver and
transfer to the successor Rights Agent any property at the time
held by it hereunder, and execute and deliver any further
assurance, conveyance, act or deed necessary for the purpose.
Not later than the effective date of any such appointment the
Company shall file notice thereof in writing with the predecessor
Rights Agent and each transfer agent of the Common Stock and
Preferred Stock, and, if such appointment occurs after the
Distribution Date, mail a notice thereof in writing to the
registered holders of the Rights Certificates. Failure to give
any notice provided for in this Section 22, however, or any
defect therein, shall not affect the legality or validity of the
resignation or removal of the Rights Agent or the appointment of
the successor Rights Agent, as the case may be.
Section 23. Issuance of New Rights Certificates.
Notwithstanding any of the provisions of this
Agreement or of the Rights to the contrary, the Company may, at
its option, issue new Rights Certificates evidencing Rights in
such form as may be approved by its Board of Directors to reflect
any adjustment or change in the Purchase Price per share and the
number or kind or class of shares or other securities or property
purchasable under the Rights Certificates made in accordance with
the provisions of this Agreement. In addition, in connection
with the issuance or sale of Common Stock following the
Distribution Date and prior to the Expiration Date, the Company
shall with respect to shares of Common Stock so issued or sold
pursuant to the exercise of stock options or under any employee
plan or arrangement, or upon the exercise, conversion or exchange
of securities, notes or debentures issued by the Company prior to
the Distribution Date, issue Right Certificates representing the
appropriate number of Rights in connection with such issuance or
sale; provided, however, that (i) the Company shall not be
obligated to issue any such Right Certificate if, and to the
extent that, the Company shall be advised by counsel that such
issuance would create a significant risk of material adverse tax
consequences to the Company or the Person to whom such Right
Certificate shall be issued, and (ii) no Right Certificate shall
be issued if, and to the extent that, appropriate adjustment
shall otherwise have been made in lieu of the issuance thereof.
Section 24. Redemption and Termination.
(a) (i) The Board of Directors of the Company
may, at its option, at any time prior to 5:00 P.M., Denver time,
on the earlier of (x) the Stock Acquisition Date or (y) the Final
Expiration Date, redeem all but not less than all of the then
outstanding Rights at the redemption price of $.001 per Right,
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").
(ii) In addition, a majority of the Board of
Directors of the Company may, at its option, at any time
following the Stock Acquisition Date and the expiration of the
period during which the rights of holders of Rights pursuant to
Section 11(a)(ii) hereof may be exercised as a result of the
occurrence of such Stock Acquisition Date, but prior to any event
described in clause (x), (y), or (z) of Section 13(a) hereof,
redeem all but not less than all of the then outstanding Rights
at the Redemption Price in connection with any such event in
which all holders of shares of Common Stock are treated alike and
not involving an Acquiring Person or a Transaction Person or an
Affiliate or Associate of an Acquiring Person or any Person in
which the Acquiring Person or an Affiliate or Associate of an
Acquiring Person has an interest, or any other Person acting
directly or indirectly on behalf of or in concert with any such
Acquiring Person, Associate or Affiliate (other than involvement
by an Acquiring Person, Affiliate, Associate or such other Person
solely as a holder of shares of Common Stock (of the Company)
being treated like all other such holders) or (z) following the
occurrence of an event set forth in, and the expiration of any
period during which the holder of Rights may exercise the rights
under, Section 11(a)(ii) if and for as long as the Acquiring
Person is not thereafter the Beneficial Owner of securities
representing ten percent or more of the voting power of all
securities of the Company generally entitled to vote for the
election of directors of the Company.
(iii) Notwithstanding anything to the
contrary in this Agreement, including, without limitation, the
provisions of Section 23(a)(i) and (ii), in the event that a
majority of the Board of Directors of the Company is comprised of
(i) persons elected at a meeting or by written consent of
stockholders who were not nominated by the Board of Directors in
office immediately prior to such meeting or action by written
consent, and/or (ii) successors of such persons elected to the
Board of Directors for the purpose of either facilitating a
Transaction with a Transaction Person or circumventing directly
or indirectly the provisions of this Section 23(a)(iii), then (I)
the Rights may not be redeemed for a period of 365 days following
the effectiveness of such election if such redemption is
reasonably likely to have the purpose or effect of facilitating a
Transaction with a Transaction Person and (II) the Rights may not
be redeemed following such 365-day period if (x) such redemption
is reasonably likely to have the purpose of facilitating a
Transaction with a Transaction Person and (y) during such 365-day
period, the Company enters into any agreement, arrangement or
understanding with any Transaction Person which is reasonably
likely to have the purpose or effect of facilitating a
Transaction with any Transaction Person.
(b) Immediately upon the date for redemption set
forth (or determined in the manner specified) in a resolution of
the Board of Directors of the Company ordering the redemption of
the Rights, evidence of which shall have been filed with the
Rights Agent and without any further action and without any
notice, the right to exercise the Rights will terminate and the
only right thereafter of the holders of Rights shall be to
receive the Redemption Price. Within ten days after the action
of the Board of Directors ordering any such redemption of the
Rights, the Company shall give notice of such redemption to the
Rights Agent and the holders of the then outstanding Rights by
mailing such notice to the Rights Agent and to all such holders
at their last addresses as they appear upon the registry books of
the Rights Agent or, prior to the Distribution Date, on the
registry books of the Transfer Agent for the Common Stock. Any
notice which is mailed in the manner herein provided shall be
deemed given, whether or not the holder receives the notice.
Each such notice of redemption will state the method by which the
payment of the Redemption Price will be made.
Section 25. Notice of Certain Events.
In case the Company at any time on or after the
Distribution Date shall propose (a) to pay any dividend payable
in stock of any class to the holders of Preferred Stock or to
make any other distribution to the holders of Preferred Stock
(other than a regular quarterly cash dividend out of earnings or
retained earnings of the Company) or (b) to offer to the holders
of Preferred Stock rights or warrants to subscribe for or to
purchase any additional shares of Preferred Stock or shares of
stock of any class or any other securities, rights or options, or
(c) to effect any reclassification of its Preferred Stock (other
than a reclassification involving only the subdivision of
outstanding shares of Preferred Stock), or (d) to effect any
consolidation or merger into or with, or to effect any sale or
other transfer (or to permit one or more of its subsidiaries to
effect any sale or other transfer), in one or more transactions,
of more than 50% of the assets or earning power of the Company
and its subsidiaries (taken as a whole) to, any other Person, or
(e) 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, in accordance with Section 26
hereof, a notice of such proposed action, which shall specify the
record date for the purposes of such stock dividend, distribution
of rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution, or winding up is to take place and the
date of participation therein by the holders of the shares of
Preferred Stock, if any such date is to be fixed, and such notice
shall be so given in the case of any action covered by clause (a)
or (b) above at least 20 days prior to the record date for
determining holders of the shares of Preferred Stock for purposes
of such action, and in the case of any such other action, at
least 20 days prior to the date of the taking of such proposed
action or the date of participation therein by the holders of the
shares of Preferred Stock whichever shall be the earlier.
In case any of the events set forth in Section
11(a)(ii) of this Agreement shall occur, then, in any such case,
the Company shall as soon as practicable thereafter give to each
holder of a Rights Certificate, in accordance with Section 26
hereof, a notice of the occurrence of such event, which shall
specify the event and the consequences of the event to holders of
Rights under Section 11(a)(ii) hereof.
Section 26. Notices.
Notices or demands authorized by this Agreement to
be given or made by the Rights Agent or by the holder of any
Rights Certificate to or on the Company shall be sufficiently
given or made if sent by first--class mail, postage prepaid,
addressed (until another address is filed in writing with the
Rights Agent) as follows:
Barrett Resources Corporation
1515 Arapohoe Street
Tower 3, Suite 1000
Denver, Colorado 80202
Subject to the provisions of Section 22, any notice or demand
authorized by this Agreement to be given or made by the Company
or by the holder of any Rights Certificate to or on the Rights
Agent shall be sufficiently given or made if sent by first--class
mail, postage prepaid, addressed (until another address is filed
in writing with the Company) as follows:
BankBoston, N.A.
P.O. Box 1865
Boston, Massachusetts 02105-1865
Attention: Joshua P. McGinn
Shareholder Services
Notices or demands authorized by this Agreement to be given or
made by the Company or the Rights Agent to the holder of any
Rights Certificate shall be sufficiently given or made if sent by
first--class mail, postage prepaid, addressed to such holder at
the address of such holder as shown on the registry books of the
Company.
Section 27. Supplements and Amendments.
Prior to the Distribution Date, the Company may from
time to time supplement or amend any provision of this Agreement
in any respect without the approval of any holders of
certificates representing Common Stock and the Rights. From and
after the Distribution Date, the Company may from time to time
supplement or amend this Agreement without the approval of any
holders of Right Certificates in order (i) to cure any ambiguity,
(ii) to correct or supplement any provision contained herein
which may be defective or inconsistent with any other provisions
herein, (iii) to shorten or lengthen any time period hereunder or
(iv) to change or supplement the provisions hereunder in any
manner which the Company may deem necessary or desirable and
which shall not adversely affect the interests of the holders of
Rights Certificates (other than an Acquiring Person or an
Affiliate or Associate of an Acquiring Person); provided,
however, that this Agreement may not be supplemented or amended
to lengthen, pursuant to clause (iii) of this sentence, (A) a
time period relating to when the Rights may be redeemed at such
time as the Rights are not then redeemable, or (B) any other time
period unless such lengthening is for the purpose of protecting,
enhancing or clarifying the rights of, and/or the benefits to,
the holders of Rights. Upon the delivery of a certificate from
an appropriate officer of the Company which states that the
proposed supplement or amendment is in compliance with the terms
of this Section 27, the Rights Agent shall execute such
supplement or amendment, provided that such supplement or
amendment does not adversely affect the rights or obligations of
the Rights Agent under Section 19 or Section 21 of this Agreement
and such amendment or supplement shall be effective regardless of
whether or when executed by the Rights Agent. Prior to the
Distribution Date, the interests of the holders of Rights shall
be deemed coincident with the interests of the holders of shares
of Common Stock. Notwithstanding anything contained in this
Rights Agreement to the contrary, in the event that a majority of
the Board of Directors of the Company is comprised of (i) persons
elected at a meeting or by written consent of stockholders who
were not nominated by the Board of Directors in office
immediately prior to such meeting or written consent, and/or
(ii) successors of such persons elected to the Board of Directors
for the purpose of either facilitating a Transaction with a
Transaction Person or circumventing directly or indirectly the
provisions of this Section 27, then (I) for a period of 365 days
following the effectiveness of such action, this Rights Agreement
shall not be amended or supplemented in any manner reasonably
likely to have the purpose or effect of facilitating a
Transaction with a Transaction Person and (II) no amendments or
supplements may be made following such 365-day period if (x) such
amendment or supplement is reasonably likely to have the purpose
of facilitating a Transaction with a Transaction Person and
(y) during such 365-day period, the Company enters into any
agreement, arrangement or understanding with any Transaction
Person which is reasonably likely to have the purpose or effect
of facilitating a Transaction with any Transaction Person.
Section 28. Determination and Actions by the Board
of Directors, etc.
The Board of Directors of the Company shall have the
exclusive power and authority to administer this Agreement and to
exercise all rights and powers specifically granted to the Board,
or the Company, or as may be necessary or advisable in the
administration of this Agreement, including, without limitation,
the right and power to (i) interpret the provisions of this
Agreement, and (ii) make all determinations deemed necessary or
advisable for the administration of this Agreement (including,
without limitation, a determination to redeem or not redeem the
Rights or to amend the Agreement and whether any proposed
amendment adversely affects the interests of the holders of Right
Certificates). For all purposes of this Agreement, any
calculation of the number of shares of Common Stock or other
securities outstanding at any particular time, including for
purposes of determining the particular percentage of such
outstanding shares of Common Stock or any other securities of
which any Person is the Beneficial Owner, shall be made in
accordance with the last sentence of Rule 13d-3(d)(1)(i) of the
General Rules and Regulations under the Exchange Act as in effect
on the date of this Agreement. All such actions, calculations,
interpretations and determinations (including, for purposes of
clause (y) below, all omissions with respect to the foregoing)
which are done or made by the Board in good faith, shall (x) be
final, conclusive and binding on the Company, the Rights Agent,
the holders of the Right Certificates and all other parties, and
(y) not subject the Board to any liability to the holders of the
Right Certificates or holders of shares of Common Stock.
Section 29. Successors.
All the covenants and provisions of this Agreement
by or for the benefit of the Company or the Rights Agent shall
bind and inure to the benefit of their respective successors and
assigns hereunder.
Section 30. Benefits of this Agreement.
Nothing in this Agreement shall be construed to give
to any person or corporation other than the Company, the Rights
Agent and the registered holders of the Rights Certificates (and,
prior to the Distribution Date, the Common Stock) any legal or
equitable right, remedy or claim under this Agreement; but this
Agreement shall be for the sole and exclusive benefit of the
Company, the Rights Agent and the registered holders of the
Rights Certificates (and, prior to the Distribution Date, the
Common Stock).
Section 31. Severability.
If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in
no way be affected, impaired or invalidated.
Section 32. Governing Law.
This Agreement, each Right and each Rights
Certificate issued hereunder shall be deemed to be a contract
made under the laws of the State of Delaware and for all purposes
shall be governed by and construed in accordance with the laws of
such State applicable to contracts to be made and to be performed
entirely within such State.
Section 33. Counterparts.
This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument.
Section 34. Descriptive Headings.
Descriptive headings of the several Sections of this
Agreement are inserted for convenience only and shall not control
or affect the meaning or construction of any of the provisions
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
Attest: BARRETT RESOURCES CORPORATION
- ----------------------------- By
-----------------------------
Name: Name:
Title: Title:
Attest: BANKBOSTON, N.A..
By
- ----------------------------- -----------------------------
Name: Name: Michael J. Capolla
Title: Title:Administration Manager
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
BARRETT RESOURCES CORPORATION
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
We, Paul M. Rady, President, and Eugene A. Lang, Jr.,
Secretary, of Barrett Resources Corporation, a corporation
organized and existing under the General Corporation Law of the
State of Delaware, in accordance with the provisions of
Section 103 thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon by the
Board of Directors by the Restated Certificate of Incorporation
of the said Corporation and Section 151(g) of the General
Corporation Law of the State of Delaware, the said Board of
Directors on August 4, 1997 adopted the following resolution at a
meeting duly called and held:
RESOLVED, that pursuant to the authority vested in the
Board of Directors of this Corporation in accordance with the
provisions of its Restated Certificate of Incorporation and
Section 151(g) of the General Corporation Law of the State of
Delaware, the Board of Directors hereby creates a series of
Preferred Stock of the Corporation and hereby states the
designation and number of shares, and fixes the relative rights,
preferences, powers, qualifications and limitations thereof (in
addition to the provisions set forth in the Corporation's
Restated Certificate of Incorporation applicable to all series of
Preferred Stock) as follows:
Section 1. Designation and Amount. The shares of such
series shall be designated as "Series A Junior Participating
Preferred Stock," par value $.001 per share, and the number of
shares constituting such series shall be 75,000. Such number of
shares may be increased or decreased by resolution of the Board
of Directors; provided, that no decrease shall reduce the number
of shares of Series A Junior Preferred Stock to a number less
than that of the shares then outstanding plus the number of
shares issuable upon exercise of outstanding rights, options or
warrants or upon conversion of outstanding securities issued by
the Corporation.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the
holders of any shares of any series of Preferred Stock ranking
prior and superior to the shares of Series A Junior Participating
Preferred Stock with respect to dividends, the holders of shares
of Series A Junior Participating Preferred Stock, in preference
to the holders of shares of Common Stock, par value $.01 per
share (the "Common Stock"), of the Corporation and any other
junior stock, shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available
for the purpose, quarterly dividends payable in cash on the 28th
day of February and the 30th day of each of May, August and
November in each year (or, in each case, if not a date on which
the Corporation is open for business, the next succeeding
business day) (each such date being referred to herein as a
"Quarterly Dividend Payment Date") or on any and all earlier
dates following the immediately preceding Quarterly Dividend
Payment Date on which dividends on the Common Stock are payable,
commencing on the first Quarterly Dividend Payment Date after the
first issuance of a share or fraction of a share of Series A
Junior Participating Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (a) $10.00
or (b) subject to the provision for adjustment hereinafter set
forth, 1,000 times the aggregate per share amount of all cash
dividends, and 1,000 times the aggregate per share amount
(payable in kind) of all non--cash dividends or other
distributions other than a dividend payable in shares of Common
Stock or a subdivision of the outstanding shares of Common Stock
(by reclassification or otherwise), declared on the Common Stock,
since the immediately preceding Quarterly Dividend Payment Date,
or, with respect to the first Quarterly Dividend Payment Date,
since the first issuance of any share or fraction of a share of
Series A Junior Participating Preferred Stock. In the event the
Corporation shall at any time after August 4, 1997 (the "Rights
Declaration Date") (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into
a smaller number of shares, then in each such case the amount to
which holders of shares of Series A Junior Participating
Preferred Stock were entitled immediately prior to such event
under clause (b) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to
such event.
(B) The Corporation shall declare a dividend or
distribution on the Series A Junior Participating Preferred Stock
as provided in paragraph (A) above immediately after it declares
a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided that, in
the event no dividend or distribution shall have been declared on
the Common Stock during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend Payment
Date, a dividend of $10.00 per share on the Series A Junior
Participating Preferred Stock shall nevertheless be payable on
such subsequent Quarterly Dividend Payment Date. If, at any time
when shares of Series A Junior Participating Preferred Stock are
outstanding, the Corporation shall repurchase or offer to
repurchase shares of Common Stock, then the Corporation shall
offer to repurchase units of one one--thousandth of a share of
Series A Junior Participating Preferred Stock in such amounts as
are proportionate to the number of shares of Common Stock to be
repurchased and at the same price and other terms as the offered
per share of Common Stock (after taking into account equitable
adjustments to reflect changes in the Common Stock arising from
stock dividends, recapitalizations, splits or similar events
after August 4, 1997).
(C) Dividends shall begin to accrue and be cumulative
on outstanding shares of Series A Junior Participating Preferred
Stock from the Quarterly Dividend Payment Date next preceding the
date of issue of such shares of Series A Junior Participating
Preferred Stock, unless the date of issue of such shares is prior
to the record date for the first Quarterly Dividend Payment Date,
in which case dividends on such shares shall begin to accrue from
the date of issue of such shares, or unless the date of issue is
a Quarterly Dividend Payment Date or is a date after the record
date for the determination of holders of shares of Series A
Junior Participating Preferred Stock entitled to receive a
quarterly dividend and before such Quarterly Dividend Payment
Date in either of which events such dividends shall begin to
accrue and be cumulative from such Quarterly Dividend Payment
Date. Accrued but unpaid dividends shall not bear interest.
Dividends paid on the shares of Series A Junior Participating
Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share--by--share basis among all such
shares at the time outstanding. The Board of Directors may fix a
record date for the determination of holders of shares of Series
A Junior Participating Preferred Stock entitled to receive
payment of a dividend or distribution declared thereon, which
record date shall be no more than 30 days prior to the date fixed
for the payment thereof.
Section 3. Voting Rights. The holders of shares of
Series A Junior Participating Preferred Stock shall have the
following voting rights:
(A) Each share of Series A Junior Participating
Preferred Stock shall entitle the holder thereof to one vote on
all matters submitted to a vote of the stockholders of the
Corporation.
(B) Except as otherwise provided herein or by law, the
holders of shares of Series A Junior Participating Preferred
Stock and the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a vote of
stockholders of the Corporation.
(C) (i) If at any time dividends on any Series A
Junior Participating Preferred Stock shall be in arrears in an
amount equal to six (6) quarterly dividends thereon, the
occurrence of such contingency shall mark the beginning of a
period (herein called a "default period") which shall extend
until such time when all accrued and unpaid dividends for all
previous quarterly dividend periods and for the current quarterly
dividend period on all shares of Series A Junior Participating
Preferred Stock then outstanding shall have been declared and
paid or set apart for payment. During each default period, all
holders of Preferred Stock (including holders of the Series A
Junior Participating Preferred Stock) with dividends in arrears
in an amount equal to six (6) quarterly dividends thereon, voting
as a class, irrespective of series, shall have the right to elect
two (2) Directors.
(ii) During any default period, such voting right
of the holders of Series A Junior Participating Preferred Stock
may be exercised initially at a special meeting called pursuant
to subparagraph (iii) of this Section 3(C) or at any annual
meeting of stockholders, and thereafter at annual meetings of
stockholders, provided that neither such voting right nor the
right of the holders of any other series of Preferred Stock, if
any, to increase, in certain cases, the authorized number of
Directors shall be exercised unless the holders of ten percent
(10%) in number of shares of Preferred Stock outstanding shall be
present in person or by proxy. The absence of a quorum of the
holders of Common Stock shall not affect the exercise by the
holders of Preferred Stock of such voting right. At any meeting
at which the holders of Preferred Stock shall exercise such
voting right initially during an existing default period, they
shall have the right, voting as a class, to elect Directors to
fill such vacancies, if any, in the Board of Directors as may
then exist up to two (2) Directors or, if such right is exercised
at an annual meeting, to elect two (2) Directors. If the number
which may be so elected at any special meeting does not amount to
the required number, the holders of the Preferred Stock shall
have the right to make such increase in the number of Directors
as shall be necessary to permit the election by them of the
required number. After the holders of the Preferred Stock shall
have exercised their right to elect Directors in any default
period and during the continuance of such period, the number of
Directors shall not be increased or decreased except by vote of
the holders of Preferred Stock as herein provided or pursuant to
the rights of any equity securities ranking senior to or pari
passu with the Series A Junior Participating Preferred Stock.
(iii) Unless the holders of Preferred Stock
shall, during an existing default period, have previously
exercised their right to elect Directors, the Board of Directors
may order, or any stockholder or stockholders owning in the
aggregate not less than ten percent (10%) of the total number of
shares of Preferred Stock outstanding, irrespective of series,
may request, the calling of special meeting of the holders of
Preferred Stock, which meeting shall thereupon be called by the
President, a Vice--President or the Secretary of the Corporation.
Notice of such meeting and of any annual meeting at which holders
of Preferred Stock are entitled to vote pursuant to this
paragraph (C)(iii) shall be given to each holder of record of
Preferred Stock by mailing a copy of such notice to him at his
last address as the same appears on the books of the Corporation.
Such meeting shall be called for a time not earlier than 20 days
and not later than 60 days after such order or request or in
default of the calling of such meeting within 60 days after such
order or request, such meeting may be called on similar notice by
any stockholder or stockholders owning in the aggregate not less
than ten percent (10%) of the total number of shares of Preferred
Stock outstanding. Notwithstanding the provisions of this
paragraph (C)(iii), no such special meeting shall be called
during the period within 60 days immediately preceding the date
fixed for the next annual meeting of the stockholders.
(iv) In any default period, the holders of Common
Stock, and other classes of stock of the Corporation if
applicable, shall continue to be entitled to elect the whole
number of Directors until the holders of Preferred Stock shall
have exercised their right to elect two (2) Directors voting as a
class, after the exercise of which right (x) the Directors so
elected by the holders of Preferred Stock shall continue in
office until their successors shall have been elected by such
holders or until the expiration of the default period, and (y)
any vacancy in the Board of Directors may (except as provided in
paragraph (C)(ii) of this Section 3) be filled by vote of a
majority of the remaining Directors theretofore elected by the
holders of the class of stock which elected the Director whose
office shall have become vacant. References in this paragraph
(C) to Directors elected by the holders of a particular class of
stock shall include Directors elected by such Directors to fill
vacancies as provided in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a default
period, (x) the right of the holders of Preferred Stock as a
class to elect Directors shall cease, (y) the term of any
Directors elected by the holders of Preferred Stock as a class
shall terminate, and (z) the number of Directors shall be such
number as may be provided for in the Certificate of Incorporation
or By--laws irrespective of any increase made pursuant to the
provisions of paragraph (C)(ii) of this Section 3 (such number
being subject, however to change thereafter in any manner
provided by law or in the Certificate of Incorporation or By--
laws). Any vacancies in the Board of Directors effected by the
provisions of clauses (y) and (z) in the preceding sentence may
be filled by a majority of the remaining Directors.
(D) Except as set forth herein, holders of Series A
Junior Participating Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the
extent they are entitled to vote with holders of Common Stock as
set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Junior Participating
Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A
Junior Participating Preferred Stock outstanding shall have been
paid in full, the Corporation shall not
(i) declare or pay dividends on, make any
other distributions on, or redeem or purchase or
otherwise acquire for consideration any shares of stock
ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A
Junior Participating Preferred Stock;
(ii) declare or pay dividends on or make any
other distributions on any shares of stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Junior
Participating Preferred Stock, except dividends paid
ratably on the Series A Junior Participating Preferred
Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total
amounts to which the holders of all such shares are
then entitled;
(iii) redeem or purchase or otherwise
acquire for consideration shares of any stock ranking
on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series
A Junior Participating Preferred Stock, provided that
the Corporation may at any time redeem, purchase or
otherwise acquire shares of any such parity stock in
exchange for shares of any stock of the Corporation
ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A
Junior Participating Preferred Stock;
(iv) purchase or otherwise acquire for
consideration any shares of Series A Junior
Participating Preferred Stock, or any shares of stock
ranking on a parity with the Series A Junior
Participating Preferred Stock, except in accordance
with a purchase offer made in writing or by publication
(as determined by the Board of Directors) to all
holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual
dividend rates and other relative rights and
preferences of the respective series and classes, shall
determine in good faith will result in fair and
equitable treatment among the respective series or
classes.
(B) The Corporation shall not permit any subsidiary of
the Corporation to purchase or otherwise acquire for
consideration any shares of stock of the Corporation unless the
Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in
such manner.
Section 5. Reacquired Shares. Any shares of Series A
Junior Participating Preferred Stock purchased or otherwise
acquired by the Corporation in any manner whatsoever shall be
retired and canceled promptly after the acquisition thereof. All
such shares shall upon their cancellation become authorized but
unissued shares of Preferred Stock and may be reissued as part of
a new series of Preferred Stock to be created by resolution or
resolutions of the Board of Directors, subject to the conditions
and restrictions on issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation (voluntary or otherwise), dissolution or
winding up of the Corporation, no distribution shall be made to
the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series A Junior Participating Preferred Stock unless, prior
thereto, the holders of shares of Series A Junior Participating
Preferred Stock shall have received $5,000 per share, plus an
amount equal to accrued and unpaid dividends and distributions
thereon, whether or not declared, to the date of such payment
(the "Series A Liquidation Preference"). Following the payment
of the full amount of the Series A Liquidation Preference, no
additional distributions shall be made to the holders of shares
of Series A Junior Participating Preferred Stock unless, prior
thereto, the holders of shares of Common Stock shall have
received an amount per share (the "Common Adjustment") equal to
the quotient obtained by dividing (i) the Series A Liquidation
Preference by (ii) 1,000 (as appropriately adjusted as set forth
in subparagraph C below to reflect such events as stock splits,
stock dividends and recapitalizations with respect to the Common
Stock) (such number in clause (ii), the "Adjustment Number").
Following the payment of the full amount of the Series A
Liquidation Preference and the Common Adjustment in respect of
all outstanding shares of Series A Junior Participating Preferred
Stock and Common Stock, respectively, holders of Series A Junior
Participating Preferred Stock and holders of shares of Common
Stock shall receive their ratable and proportionate share of the
remaining assets to be distributed in the ratio of the Adjustment
Number to 1 with respect to such Preferred Stock and Common
Stock, on a per share basis, respectively.
(B) In the event there are not sufficient assets
available to permit payment in full of the Series A Liquidation
Preference and the liquidation preferences of all other series of
preferred stock, if any, which rank on a parity with the Series A
Junior Participating Preferred Stock, then such remaining assets
shall be distributed ratably to the holders of such parity shares
in proportion to their respective liquidation preferences. In
the event there are not sufficient assets available to permit
payment in full of the Common Adjustment, then such remaining
assets shall be distributed ratably to the holders of Common
Stock.
(C) In the event the Corporation shall at any time
after the Rights Declaration Date (i) declare any dividend on
Common Stock payable in shares of Common Stock, (ii) subdivide
the outstanding Common Stock, or (iii) combine the outstanding
Common Stock into a smaller number of shares, then in each such
case the Adjustment Number in effect immediately prior to such
event shall be adjusted by multiplying such Adjustment Number by
a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger,
combination or other transaction in which the shares of Common
Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case
the shares of Series A Junior Participating Preferred Stock shall
at the same time be similarly exchanged or changed in an amount
per share (subject to the provision for adjustment hereinafter
set forth) equal to 1,000 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as
the case may be, into which or for which each share of Common
Stock is changed or exchanged. In the event the Corporation
shall at any time after the Rights Declaration Date (i) declare
any dividend on Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in
each such case the amount set forth in the preceding sentence
with respect to the exchange or change of shares of Series A
Junior Participating Preferred Stock shall be adjusted by
multiplying such amount by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of
shares of Common Stock that are outstanding immediately prior to
such event.
Section 8. No Redemption. The shares of Series A
Junior Participating Preferred Stock shall not be redeemable.
Section 9. Ranking. The Series A Junior Participating
Preferred Stock shall rank junior to all other series of the
Corporation's Preferred Stock as to the payment of dividends and
the distribution of assets, unless the terms of any such series
shall provide otherwise.
Section 10. Amendment. The Restated Certificate of
Incorporation of the Corporation shall not be further amended in
any manner which would materially alter or change the powers,
preferences or special rights of the Series A Junior
Participating Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of a majority or more
of the outstanding shares of Series A Junior Participating
Preferred Stock, voting separately as a class.
Section 11. Fractional Shares. Series A Junior
Participating Preferred Stock may be issued in fractions of a
share which shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights, receive
dividends, participate in distributions and to have the benefit
of all other rights of holders of Series A Junior Participating
Preferred Stock.
IN WITNESS WHEREOF, we have executed and subscribed
this Certificate and do affirm the foregoing as true under the
penalties of perjury this day of August, 1997.
------------------------
President
Attest:
- ---------------------
Secretary
Exhibit B
---------
[Form of Rights Certificate]
Certificate No. R- ----------- Rights
NOT EXERCISABLE AFTER AUGUST 4, 2007 OR
EARLIER IF NOTICE OF REDEMPTION IS GIVEN.
THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE
OPTION OF THE COMPANY, AT $.01 PER RIGHT ON
THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.
[THE RIGHTS REPRESENTED BY THIS CERTIFICATE
WERE ISSUED TO A PERSON WHO WAS AN ACQUIRING
PERSON OR A TRANSACTION PERSON OR AN
ASSOCIATE OR AFFILIATE OF AN ACQUIRING PERSON
OR A TRANSACTION PERSON (AS SUCH TERMS ARE
DEFINED IN THE AMENDED AND RESTATED RIGHTS
AGREEMENT). THIS RIGHT CERTIFICATE AND THE
RIGHTS REPRESENTED HEREBY ARE NULL AND
VOID.]*
* The portion of the legend in brackets shall be inserted only
if applicable.
Rights Certificate
Barrett Resources Corporation
This certifies that , or
registered assigns, is the registered owner of the number of
Rights set forth above, each of which entitles the owner thereof
subject to the terms, provisions and conditions of the Rights
Agreement dated as of August 5, 1997 (the "Rights Agreement")
between Barrett Resources Corporation, a Delaware corporation
(the "Company"), and BankBoston, N.A. (the "Rights Agent"), to
purchase from the Company at any time after the Distribution Date
(as such term is defined in the Rights Agreement) and prior to
5:00 P.M. (Massachusetts time) on August 4, 2007 at the principal
office of the Rights Agent, or its successors as Rights Agent,
one one--thousandth of a fully paid, nonassessable share of
Series A Junior Participating Preferred Stock (the "Preferred
Stock") of the Company, at a purchase price of $150 per one one--
thousandth of a share (the "Purchase Price"), upon presentation
and surrender of this Rights Certificate with the appropriate
Form of Election to Purchase duly executed. The number of Rights
evidenced by this Rights Certificate (and the number of shares
which may be purchased upon exercise thereof) set forth above,
and the Purchase Price set forth above, are the number and
Purchase Price as of August 20, 1997, based on the Preferred
Stock as constituted at such date.
As provided in the Rights Agreement, the Purchase Price
and the number of shares of Preferred Stock or other securities
which may be purchased upon the exercise of the Rights evidenced
by this Rights Certificate are subject to modification and
adjustment upon the happening of certain events.
This Right Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Agreement
reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent, the Company and the holders of the
Rights Certificates. Copies of the Rights Agreement are on file
at the principal 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 office of the
Rights Agent, may be exercised 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 Preferred Stock as the Rights evidenced by the Rights
Certificate or Rights Certificates surrendered shall have
entitled such holder to purchase. If this Rights Certificate
shall be exercised (other than pursuant to Section 11(a)(ii) of
the Rights Agreement) 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.
If this Rights Certificate shall be exercised in whole or in part
in pursuant to Section 11(a)(ii) of the Rights Agreement, the
holder shall be entitled to receive this Rights Certificate duly
marked to indicate that such exercise has occurred as set forth
in the Rights Agreement.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate may be redeemed by the
Company at its option at a redemption price of $.001 per Right.
No fractional shares of Preferred Stock will be issued
upon the exercise of any Right or Rights evidenced hereby (other
than fractions which are integral multiples of one one-thousandth
of a share of Preferred Stock, which may, at the election of the
Company, be evidenced by depositary receipts), but in lieu
thereof a cash payment will be made, as provided in the Rights
Agreement.
No holder of this Rights Certificate shall be entitled
to vote or receive dividends or be deemed for any purpose the
holder of shares of Preferred Stock or of any other securities of
the Company which may at any time be issuable on the exercise
hereof, nor shall anything contained in the Rights Agreement or
herein be construed to confer upon the holder hereof, as such,
any of the rights of a stockholder of the Company or any right to
vote for the election of directors or upon any matter submitted
to stockholders at any meeting thereof, or to give or withhold
consent to any corporate action, or, to receive notice of
meetings or other actions affecting stockholders (except as
provided in the Rights Agreement), or to receive dividends or
subscription rights, or otherwise, until the Right or Rights
evidenced by this Right Certificate shall have been exercised as
provided in the Rights Agreement.
This Rights Certificate shall not be valid or
obligatory for any purpose until it shall have been countersigned
by the Rights Agent.
WITNESS the facsimile signature of the proper officers
of the Company and its corporate seal. Dated as of ,
19 .
Attest: BARRETT RESOURCES CORPORATION
By
- ----------------------------- -----------------------------
Name: Name:
Title: Title:
Countersigned:
[
]
- -----------------------------
Authorized Signature
[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: -----------------, 19--
--------------------------------
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, a Transaction Person or an Affiliate
or Associate of any such Acquiring Person or a Transaction Person
(as such terms are defined pursuant to 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 or
was an Acquiring Person, a Transaction Person, or an Affiliate or
Associate of an Acquiring Person or a Transaction Person.
Dated: ----------------, 19--
--------------------------------
Signature
NOTICE
------
The signature to the foregoing Assignment must
correspond to the name as written upon the face of this Rights
Certificate in every particular, without alteration or
enlargement or any change whatsoever.
In the event the certification set forth above in the
Form of Assignment or the Form of Election to Purchase, as the
case may be, is not completed, the Company and the Rights Agent
will deem the Beneficial Owner of the Rights evidenced by this
Right Certificate to be an Acquiring Person, a Transaction
Person, or an Affiliate or Associate thereof (as such terms are
defined in the Rights Agreement) and such Assignment or Election
to Purchase will not be honored.
FORM OF ELECTION TO PURCHASE
-----------------------------
(To be executed if holder desires to exercise
the Rights Certificate other than pursuant to
Section 11(a)(ii) of the Rights Agreement.)
To BARRETT RESOURCES CORPORATION:
The undersigned hereby irrevocably elects to exercise -
- -------- purchase the shares of Preferred Stock (or such other
securities of the Company or any other Person) issuable upon the
exercise of the Rights and requests that certificates for such
shares be issued in the name of:
Please insert social security
or other identifying number
- ----------------------------------------------------------------
(Please print name and address)
- -----------------------------------------------------------------
The Rights Certificate indicating the balances, if any,
of such Rights which may still be exercised pursuant to each of
Section 11(a)(ii) and Section 13 of the Rights Agreement shall be
returned to the undersigned unless such person requests that the
Rights Certificate be registered in the name of and delivered to:
Please insert social security or other identifying number
(complete only if Rights Certificate is to be registered in a
name other than the undersigned)
- -----------------------------------------------------------------
(Please print name and address)
- -----------------------------------------------------------------
- -----------------------------------------------------------------
Dated: -----------------, 19--
--------------------------------
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, a Transaction Person, or an Affiliate
or Associate of any such Acquiring Person or a Transaction Person
(as such terms are defined pursuant to 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 or
was an Acquiring Person, a Transaction Person, or an Affiliate or
Associate of an Acquiring Person or a Transaction Person.
Dated: ---------------, 19--
--------------------------------
Signature
NOTICE
------
The signature to the foregoing Election to Purchase
must correspond to the name as written upon the face of this
Rights Certificate in every particular, without alteration or
enlargement or any change whatsoever.
In the event the certification set forth above in the
Form of Assignment or the Form of Election to Purchase, as the
case may be, is not completed, the Company and the Rights Agent
will deem the Beneficial Owner of the Rights evidenced by this
Right Certificate to be an Acquiring Person, a Transaction
Person, or an Affiliate or Associate thereof (as such terms are
defined in the Rights Agreement) and such Assignment or Election
to Purchase will not be honored.
FORM OF ELECTION TO PURCHASE
----------------------------
(To be executed if holder desires to
exercise the Rights Certificate pursuant to
Section 11(a)(ii) of the Rights Agreement.)
To BARRETT RESOURCES CORPORATION:
The undersigned hereby irrevocably elects to exercise -
- ----------- Rights represented by this Rights Certificate to
purchase the shares of Common Stock (or such other securities of
the Company) issuable upon the exercise of the Rights and
requests that certificates for such shares be issued in the name
of:
Please insert social security
or other identifying number
- ----------------------------------------------------------------
(Please print name and address)
The Rights Certificate indicating the balances, if any,
of such Rights which may still be exercised pursuant to each of
Section 11(a)(ii) and Section 13 of the Rights Agreement shall be
returned to the undersigned unless such person requests that the
Rights Certificate be registered in the name of and delivered to:
Please insert social security or other identifying number
(complete only if Rights Certificate is to be registered in a
name other than the undersigned)
- ----------------------------------------------------------------
(Please print name and address)
- ----------------------------------------------------------------
Dated: ---------------, 19--
--------------------------------
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, a Transaction Person, or an Affiliate
or Associate of any such Acquiring Person or Transaction
Person(as such terms are defined pursuant to 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 or
was an Acquiring Person, a Transaction Person, or an Affiliate or
Associate of an Acquiring Person or Transaction Person.
Dated: ---------------, 19--
-------------------------------
Signature
NOTICE
-------
The signature to the foregoing Election to Purchase
must correspond to the name as written upon the face of this
Rights Certificate in every particular, without alteration or
enlargement or any change whatsoever.
In the event the certification set forth above in the
Form of Assignment or the Form of Election to Purchase, as the
case may be, is not completed, the Company and the Rights Agent
will deem the Beneficial Owner of the Rights evidenced by this
Right Certificate to be an Acquiring Person, a Transaction
Person, or an Affiliate or Associate thereof (as such terms are
defined in the Rights Agreement) and such Assignment or Election
to Purchase will not be honored.
Exhibit C
---------
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED STOCK
On August 4, 1997, the Board of Directors of Barrett
Resources Corporation (the "Company") declared a dividend
distribution of one Right for each outstanding share of common
stock, par value $.001 per share (the "Common Stock"), of the
Company to stockholders of record at the close of business on
August 20, 1997 (the "Record Date"). Except as set forth below,
each Right, when exercisable, entitles the registered holder to
purchase from the Company one one-thousandth of a share of a
series of preferred stock, designated as Series A Junior
Participating Preferred Stock, par value $.01 per share (the
"Preferred Stock"), at a price of $150 per one one--thousandth of
a share (the "Purchase Price), subject to adjustment. The
description and terms of the Rights are set forth in a Rights
Agreement (the "Rights Agreement") between the Company and
BankBoston, N.A., as Rights Agent.
Until the earliest to occur of (i) a public
announcement that, without the prior consent of the Board of
Directors of the Company, a person or group of affiliated or
associated persons (an "Acquiring Person") has acquired, or
obtained the right to acquire, beneficial ownership of 15% or
more of the outstanding shares of Common Stock (the "Stock
Acquisition Date"), or (ii) ten business days (or such later date
as the Board may determine) following the commencement of (or a
public announcement of an intention to make) a tender offer or
exchange offer which would result in any person or group and
related persons having beneficial ownership of 15% or more of the
outstanding shares of Common Stock without the prior consent of
the Board of Directors of the Company, or (iii) twenty business
days prior to the date on which a Transaction (as such term is
hereinafter defined) is reasonably expected to become effective
or be consummated (the earliest of such dates being called the
"Distribution Date"), the Rights will be evidenced, with respect
to any of the Common Stock certificates outstanding as of
August 20, 1997, by such Common Stock certificate and no separate
Rights Certificates will be distributed. The Rights Agreement
provides that, until the Distribution Date, the Rights will be
transferred with and only with Common Stock certificates. Until
the Distribution Date (or earlier redemption or expiration of the
Rights), new Common Stock certificates issued after August 20,
1997, (or as soon thereafter as practicable) upon transfer or new
issuance of the Common Stock will contain a notation
incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption or expiration of the
Rights), the surrender for transfer of any certificates for
Common Stock outstanding as of August 20, 1997, will also
constitute the transfer of the Rights associated with the Common
Stock represented by such certificate, even without such
notation. As soon as practicable following the Distribution
Date, separate certificates evidencing the Rights ("Rights
Certificates") will be mailed to holders of record of the Common
Stock as of the close of business on the Distribution Date, and
the separate Rights Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution
Date. The Rights will expire on August 4, 2007, unless earlier
redeemed by the Company as described below.
In the event that any person becomes an Acquiring
Person, each holder of a Right generally will thereafter have the
right for a 60 day period after the later of the date of such
event or the effectiveness of an appropriate registration
statement (or such other longer period set by the Board of
Directors) to receive upon exercise of the Right that number of
units of one one-thousandths of a share of Preferred Stock (or,
under certain circumstances, Common Stock or other securities)
having an average market value during a specified time period
(immediately prior to the occurrence of a Person becoming an
Acquiring Person) of two times the exercise price of the Right
(such right being called the "Subscription Right").
Notwithstanding the foregoing, following the occurrence of a
Person becoming an Acquiring Person or a Transaction Person (as
hereinafter defined), all Rights that are, or (under certain
circumstances specified in the Rights Agreement) were,
beneficially owned by the Acquiring Person or the Transaction
Person or any affiliate or associate thereof will be null and
void.
In the event that, at any time following the Stock
Acquisition Date or, if a Transaction is proposed, the
Distribution Date, the Company is acquired in a merger or other
business combination transaction or 50% or more of the Company's
assets or earning power are sold (in one transaction or a series
of transactions), proper provision shall be made so that each
holder of a Right (except a Right voided as set forth above)
shall thereafter have the right to receive, upon the exercise
thereof at the then current exercise price of the Right, that
number of shares of common stock of the acquiring company (or, in
the event there is more than one acquiring company, the acquiring
company receiving the greatest portion of the assets or earning
power transferred) which at the time of such transaction would
have a market value of two times the exercise price of the Right
(such right being called the "Merger Right"). The holder of a
Right will continue to have the Merger Right whether or not such
holder exercises the Subscription Right.
The Purchase Price payable, the number of Rights and
the number of units of one one-thousandths of a share of
Preferred Stock or shares of the Common Stock or other securities
or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event
of a stock dividend on, or a subdivision, combination or
reclassification of the Preferred Stock, (ii) upon the grant to
holders of the Preferred Stock of certain rights or warrants to
subscribe for Preferred Stock, certain convertible securities or
securities having the same or more favorable rights, privileges
and preferences as the Preferred Stock at less than the current
market price of the Preferred Stock or (iii) upon the
distribution to holders of the Preferred Stock of evidences of
indebtedness or assets (excluding regular quarterly cash
dividends out of earnings or retained earnings and dividends
payable in Preferred Stock) or of subscription rights or warrants
(other than those referred to above).
With certain exceptions, no adjustments in the Purchase
Price will be required until cumulative adjustments require an
adjustment of at least 1% in such Purchase Price. No fractions
of shares will be issued and, in lieu thereof, an adjustment in
cash will be made based on the market price of the Common Stock
on the last trading date prior to the date of exercise.
The number of outstanding Rights associated with each
share of Common Stock and the voting and economic rights of each
one one--thousandths of a share of Preferred Stock issuable upon
exercise of each Right are also subject to adjustment in the
event of a stock split of the Common Stock or a stock dividend on
the Common Stock payable in Common Stock or subdivisions,
consolidations or combinations of the Common Stock occurring, in
any such case, prior to the Distribution Date.
At any time prior to the earlier to occur of (i) the
close of business on the Stock Acquisition Date or (ii) the
expiration of the Rights, the Company may redeem the Rights in
whole, but not in part, at a price of $.001 per Right (the
"Redemption Price"), which redemption shall be effective upon the
action of the Board of Directors. Additionally, following the
Stock Acquisition Date and the expiration of the period during
which the Subscription Right is exercisable, the Board of
Directors may redeem the then outstanding Rights in whole, but
not in part, at the Redemption Price provided that such
redemption is in connection with a merger or other business
combination transaction or series of transactions involving the
Company in which all holders of Common Stock are treated alike
but not involving an Acquiring Person (or any person who was an
Acquiring Person) or it affiliates or associates. Upon the
effective date of the redemption of the Rights, the right to
exercise the Rights will terminate and the only right of the
holders of Rights will be to receive the Redemption Price.
In the event that a majority of the Board of Directors
of the Company in office following a meeting of stockholders or
stockholder action by written consent are not nominated by the
Board of Directors serving immediately prior to such meeting or
action, then for 365 days following such meeting or action the
Rights may not be redeemed or amended if such redemption or
amendment is reasonably likely to facilitate a combination or
sale of assets or earning power (a "Transaction") with a person
who (A) either (i) is or will become an Acquiring Person or
(ii) is a party involved in a merger or consolidation with, or a
sale of assets by, the Company or affiliate or associate thereof
if the Transaction were to be consummated and (B) who has
directly or indirectly proposed or nominated a member of the
Board who is in office at the time the Transaction is being
considered (a "Transaction Person"). The Rights may not be
redeemed thereafter if during such 365 day period the Company
enters into any agreement reasonably likely to facilitate a
Transaction with a Transaction Person and the redemption is
reasonably likely to facilitate a Transaction with a Transaction
Person.
The Preferred Stock purchasable upon exercise of the
Rights will be nonredeemable and junior to any other series of
preferred stock the Company may issue (unless otherwise provided
in the terms of such stock). Each share of Preferred Stock will
have a preferential quarterly dividend in an amount equal to the
greater of $10.00 and 1,000 times the dividend declared on each
Common Share. In the event of liquidation, the holders of
Preferred Stock will receive a preferred liquidation payment
equal to the greater of $5,000 and 1,000 times the payment made
per Common Share. Each share of Preferred Stock will have one
vote, voting together with the Common Shares. In the event of
any merger, consolidation or other transaction in which Common
Shares are exchanged, each share of Preferred Stock will be
entitled to receive 1,000 times the amount and type of
consideration received per Common Share. The rights of the
Preferred Stock as to dividends, liquidation and voting, and in
the event of mergers and consolidations, are protected by
customary anti--dilution provisions. Fractional shares of
Preferred Stock in integral multiples of one one-thousandth of a
share of Preferred Stock will be issuable; however, the Company
may elect to distribute depositary receipts in lieu of such
fractional shares. In lieu of fractional shares other than
fractions that are multiples of one one-thousandth of a share, an
adjustment in cash will be made based on the market price of the
Preferred Stock on the last trading date prior to the date of
exercise.
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.
Except as set forth above, the terms of the Rights may
be amended by the Board of Directors of the Company, (i) prior to
the Distribution Date in any manner, and (ii) on or after the
Distribution Date to cure any ambiguity, to correct or supplement
any provision of the Rights Agreement which may be defective or
inconsistent with any other provisions, or in any manner not
adversely affecting the interests of the holders of the Rights.
A copy of the Rights Agreement has been filed with the
Securities and Exchange Commission as an Exhibit to a
Registration Statement on Form 8--A. A copy of the Rights
Agreement is available free of charge from the Company. This
summary description of the Rights does not purport to be complete
and is qualified in its entirety by reference to the Rights
Agreement, which is incorporated herein by reference.
