UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of
1934
October 6, 1994 1-8309
Date of Report (Date of earliest event reported)
Commission File Number
PRICE COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
New York 13-2991700
(State or other jurisdiction of incorporation or organization)
(I.R.S. Employer Identification Number)
45 Rockefeller Plaza, New York, NY 10020
(Address of Principal Executive Offices) (Zip Code)
(212) 757-5600
(Registrant's telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report.)
<PAGE>
Item 5. Other Events
On October 6, 1994, the Board of Directors of Price
Communications Corporation (the "Corporation")
declared a dividend distribution of one right (a "Right") to
purchase one share of the Common Stock, $.01 par value, of the
Corporation (the "Common Shares") for each outstanding share of
Common Stock, payable to the stockholders of record on October
17, 1994 (the "Record Date"). The Board of Directors also
authorized and directed the issuance of one Right with respect to
each Common Share issued thereafter until the Distribution Date
(as defined below) and, in certain circumstances, with respect to
Common Shares issued after the Distribution Date. Except as set
forth below, each Right, when it becomes exercisable, entitles
the registered holder to purchase from the Corporation one Common
Share at a price of $22.50 per Right (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 Corporation and Harris Trust Company of New York, as
Rights Agent (the "Rights Agent"), dated as of October 6, 1994.
Initially, the Rights will be attached to all certificates
representing Common Shares then outstanding, and no separate
Right Certificates will be distributed. The Rights will separate
from the Common Shares upon the Shares Acquisition Date, as
hereinafter defined (the "Distribution Date"). The "Shares
Acquisition Date" means the first date of public announcement
that a person or group has acquired beneficial ownership of 20%
or more of the outstanding Common Shares. A person or group
whose acquisition of Common Shares causes a Distribution Date
pursuant to clause (i) above is an "Acquiring Person."
Notwithstanding the foregoing, certain stockholders who currently
own in excess of 20% of the outstanding Common Shares and their
affiliates and permitted transferees will not be deemed to be
Acquiring Persons and their ownership will not cause a
Distribution Date unless they acquire an additional one percent
or more of the outstanding Common Shares.
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 the Record Date upon the
transfer or new issuance of Common Shares will contain a notation
incorporating the Rights Agreement by reference, and the
surrender for transfer of any certificates for Common Shares will
also constitute the transfer of the Rights associated with the
Common Shares represented by such certificate. As soon as
practicable following the Distribution Date, separate
certificates evidencing the Rights ("Right Certificates") will be
mailed to holders of record of the Common Shares as of the close
of business on the Distribution Date (and to each initial record
holder of certain Common Shares issued after the Distribution
Date), and such separate Right Certificates alone will evidence
the Rights.
The Rights are not exercisable until the Distribution Date,
and will expire at the close of business on October 17, 2004,
unless earlier redeemed by the Corporation as described below.
In the event that any person becomes an Acquiring Person,
each holder of Rights (other than Rights that have become void as
described below) will thereafter have the right (the "Flip-In
Right") to receive, upon exercise of such Rights, the number of
Common Shares or, in certain circumstances, other securities or
debt of the Corporation ("Capital Stock Equivalents"), having a
value (immediately prior to such triggering event) equal to two
times the aggregate exercise price of such Rights. The Board, at
its option, may exchange each Right (other than those that have
become void as provided below) for one Common Share or Capital
Stock Equivalent in lieu of the Flip-In Right, provided that (i)
no person is the beneficial owner of 50% or more of the Common
Shares at the time of such exchange and (ii) the Board may only
exchange Rights if there is at least one Disinterested Director
(as defined below) and such exchange is authorized by both a
majority of the Disinterested Directors and a majority of all
directors authorize the exchange. Notwithstanding the foregoing,
following the occurrence of the event described above, all Rights
that are or (under certain circumstances specified in the Rights
Agreement) were beneficially owned by any Acquiring Person or any
affiliate or associate thereof will be null and void.
For purposes of the Rights Agreement, "Disinterested
Director" means any member of the Board of Directors who is
neither an officer or employee of the Corporation, an Acquiring
Person, nor any Person proposing or attempting to effect a
business combination, tender offer, exchange offer or similar
transaction with the Corporation or its shareholders (including,
without limitation, a merger, tender offer or exchange offer,
sale of substantially all of the Corporation's assets, or
liquidation of the Corporation's assets), any Affiliate or
Associate of such Acquiring Person or Person or any other Person
acting directly or indirectly on behalf of, or as a
representative of, or in concert with, or who is a nominee of,
any such Acquiring Person, Person, Affiliate or Associate.
In the event that, at any time following the Shares
Acquisition Date, (i) the Corporation is acquired in a merger or
other business combination transaction in which the holders of
all of the outstanding Common Shares immediately prior to the
consummation of the transaction are not the holders of all of the
surviving corporation's voting power, or (ii) more than 50% of
the Corporation's assets or earning power is sold or transferred,
then each holder of Rights (except Rights which previously have
been voided as set forth above) shall thereafter have the right
(the "Flip-Over Right") to receive, upon exercise of such Rights,
common shares of the acquiring company having a value equal to
two times the aggregate exercise price of the Rights. The holder
of a Right will continue to have the Flip-Over Right whether or
not such holder exercises or surrenders the Flip-In Right.
The Purchase Price payable, and the number of Common Shares
or other securities issuable, upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution (i)
in the event of a stock dividend on, or a subdivision,
combination or reclassification of, the Common Shares, (ii) upon
the grant to holders of the Common Shares of certain rights or
warrants to subscribe for or purchase Common Shares at a price,
or securities convertible into Common Shares with a conversion
price, less than the then current market price of the Common
Shares, or (iii) upon the distribution to holders of the Common
Shares of evidences of indebtedness or assets (excluding regular
quarterly cash dividends) or of subscription rights or warrants
(other than those referred to above).
With certain exceptions, no adjustment in the Purchase Price
will be required until cumulative adjustments require an
adjustment of at least 1% in such Purchase Price. No fractional
Common Shares will be issued and, in lieu thereof, an adjustment
in cash will be made based on the market price of the Common
Shares on the last trading day prior to the date of exercise.
At any time prior to the earlier to occur of (i) a person
becoming an Acquiring Person or (ii) the expiration of the
Rights, the Corporation may redeem the Rights in whole, but not
in part, at a price of $.01 per Right (the "Redemption Price"),
which redemption shall be effective at such time, on such basis
and with such conditions as the Board of Directors may establish
in its sole discretion; provided, however, that the Board may
only redeem the rights if there is at least one Disinterested
Director and a majority of the Disinterested Directors and a
majority of all directors authorize the redemption. The
Corporation may, at its option, pay the Redemption Price in
Common Shares.
All of the provisions of the Rights Agreement may be amended
by the Board of Directors prior to the Distribution Date. After
the Distribution Date, the provisions of the Rights Agreement may
be amended by the Board in order to cure any ambiguity, defect or
inconsistency, to make changes which do not adversely affect the
interests of holders of Rights (excluding the interests of any
Acquiring Person), or, subject to certain limitations, to shorten
or lengthen any time period under the Rights Agreement.
Notwithstanding the foregoing, the Board of Directors may not
amend the Rights Agreement unless there is at least one
Disinterested Director and a majority of the Disinterested
Directors and a majority of all directors authorize the
amendment.
Until a Right is exercised, the holder thereof, as such,
will have no rights as a stockholder of the Corporation,
including, without limitation, the right to vote or to receive
dividends. While the distribution of the Rights will not be
taxable to stockholders of the Corporation, stockholders may,
depending upon the circumstances, recognize taxable income should
the Rights become exercisable or upon the occurrence of certain
events thereafter.
The Rights have certain anti-takeover effects. The Rights
may cause substantial dilution to a person or group that attempts
to acquire the Corporation on terms not approved by the Board of
Directors, except pursuant to an offer conditioned on a
substantial number of Rights being acquired. The Rights should
not interfere with any merger or other business combination
approved by the Board of Directors prior to the time a person or
group has acquired beneficial ownership of 20% or more of the
Common Shares, because until such time the Rights may be redeemed
by the Corporation.
The foregoing summary description of the Rights and the
Notes does not purport to be complete and is qualified in its
entirety by reference to the Rights Agreement, a copy of which is
attached hereto as an Exhibit, and incorporated herein by
reference. Copies of the Rights Agreement will be available free
of charge from the Corporation.
Item 7. Financial Statements and Exhibits.
(a) Not applicable
(b) Not applicable
(c) The following document is furnished as an Exhibit to this
Current Report on Form 8-K pursuant to Item 601 of
Regulation S-K:
4. Rights Agreement dated as of October 6, 1994 between
Price Communications Corporation and Harris Trust
Company of New York.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
PRICE COMMUNICATIONS CORPORATION
Date: December 5, 1994
/s/ Kim I. Pressman
Name: Kim I. Pressman
Title: Executive Vice President
RIGHTS AGREEMENT
dated as of
October 6, 1994
between
PRICE COMMUNICATIONS CORPORATION
and
HARRIS TRUST COMPANY OF NEW YORK
as Rights Agent
<PAGE>
RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of October 6, 1994 (the
"Agreement"), between Price Communications Corporation, a New York
corporation (the "Corporation") and Harris Trust Company of New
York (the "Rights Agent").
The Board of Directors of the Corporation has authorized
and declared a dividend of one right (a "Right") for each Common
Share (as hereinafter defined) of the Corporation outstanding at
the close of business on October 17, 1994 (the "Record Date"), each
Right representing the right to purchase one Common Share, upon the
terms and subject to the conditions herein set forth, and has
further authorized and directed the issuance of one Right with
respect to each Common Share that shall become outstanding between
the Record Date and the earliest of the Distribution Date, the
Redemption Date or Final Expiration Date (as such terms are
hereinafter defined); provided, however, that Rights may be issued
with respect to Common Shares that shall become outstanding after
the Distribution Date and prior to the earlier of the Redemption
Date and the Final Expiration Date in accordance with the
provisions of Section 22 of this Agreement.
Accordingly, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as
follows:
Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who or
which, together with all Affiliates and Associates of such Person,
shall be the Beneficial Owner of 20% or more of the then
outstanding Common Shares or was such a Beneficial Owner at any
time after the date hereof, whether or not such person continues to
be the Beneficial Owner of 20% or more of the then outstanding
Common Shares. Notwithstanding the foregoing, (A) the term
"Acquiring Person" shall not include (i) the Corporation, (ii) any
Subsidiary of the Corporation, (iii) any employee benefit plan of
the Corporation or of any Subsidiary of the Corporation, (iv) any
Person or entity organized, appointed or established by the
Corporation for or pursuant to the terms of any such plan, or (v)
any Grandfathered Shareholder and (B) no Person (including, without
limitation, any Grandfathered Shareholder) shall become an
"Acquiring Person" (and no Grandfathered Shareholder shall cease to
be a Grandfathered Shareholder):
(i) as a result of the acquisition of Common Shares
by the Corporation which, by reducing the number of Common Shares
outstanding, increases the proportional number of shares
beneficially owned by such Person together with all Affiliates and
Associates of such Person; provided that if (1) a Person
(including, without limitation, any Grandfathered Shareholder)
would become an Acquiring Person (but for the operation of this
subclause (i)) as a result of the acquisition of Common Shares by
the Corporation, and (2) after such share acquisition by the
Corporation, such Person, or an Affiliate or Associate of such
Person, becomes the Beneficial Owner of any additional Common
Shares, then such Person shall be deemed an Acquiring Person; or
(ii) if the Board of Directors of the Corporation
determines in good faith that a Person who would otherwise be an
"Acquiring Person" has become such inadvertently, and such Person
divests as promptly as practicable a sufficient number of Common
Shares so that such Person would no longer be an "Acquiring
Person", then such Person shall not be deemed an "Acquiring Person"
for any purposes of this Agreement.
(b) "Act" shall mean the Securities Act of 1933, as
amended and as in effect on the date of this Agreement.
(c) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations under the Exchange Act as in effect
on the date of this Agreement.
(d) A Person shall be deemed the "Beneficial Owner" of
and shall be deemed to "beneficially own" any securities:
(i) which such Person or any of such Person's
Affiliates or Associates beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person's
Affiliates or Associates has (A) the right to acquire (whether such
right is exercisable immediately or only after the passage of time)
pursuant to any agreement, arrangement or understanding, or upon
the exercise of conversion rights, exchange rights, rights (other
than the Rights), warrants or options, or otherwise, provided,
however, that a Person shall not be deemed the Beneficial Owner of,
or to beneficially own, securities tendered pursuant to a tender or
exchange offer made by or on behalf of such Person or any of such
Person's Affiliates or Associates until such tendered securities
are accepted for purchase or exchange; or (B) the right to vote
pursuant to any agreement, arrangement or understanding; provided,
however, that a Person shall not be deemed the Beneficial Owner of,
or to beneficially own, any security if the agreement, arrangement
or understanding to vote such security (1) arises solely from a
revocable proxy or consent given to such Person in response to a
public proxy or consent solicitation made pursuant to, and in
accordance with, the applicable rules and regulations promulgated
under the Exchange Act and (2) is not also then reportable on
Schedule 13D under the Exchange Act (or any comparable or successor
report); or
(iii) which are beneficially owned, directly or
indirectly, by any other Person (or any Affiliate or Associate
thereof) with which such Person (or any of such Person's Affiliates
or Associates) has any agreement, arrangement or understanding
(other than an agreement to Transfer to a proposed Permitted
Transferee those Common Shares subject to such proposed Permitted
Transfer and customary agreements with and between underwriters and
selling group members with respect to a bona fide public offering
of securities) relating to the acquisition, holding, voting (except
to the extent contemplated by the proviso to Section 1(d)(ii)(B))
or disposing of any securities of the Corporation.
Notwithstanding anything in this definition of
Beneficial Ownership to the contrary, the phrase "then
outstanding", when used with reference to a Person's Beneficial
Ownership of securities of the Corporation, shall mean the number
of such securities then issued and outstanding together with the
number of such securities not then actually issued and outstanding
which such Person would be deemed to own beneficially hereunder.
(e) "Business Day" shall mean any day other than a
Saturday, Sunday, federal holiday or day on which commercial banks
are authorized or required to close in New York City.
(f) "Close of business" on any given date shall mean
5:00 p.m., New York time, on such date; provided, however, that if
such date is not a Business Day it shall mean 5:00 p.m., New York
time, on the next succeeding Business Day.
(g) "Common Shares" when used with reference to the
Corporation shall mean the shares of Common Stock, par value $0.01,
of the Corporation or, in the event of a subdivision, combination
or consolidation with respect to such shares of Common Stock, the
shares of Common Stock resulting from such subdivision, combination
or consolidation. "Common Shares" when used with reference to any
Person other than the Corporation shall mean the capital stock (or
equity interest) with the greatest voting power of such other
Person or, if such other Person is a Subsidiary of another Person,
the Person or Persons which ultimately control such first-mentioned
Person.
(h) "Disinterested Director" means any member of the
Board of Directors of the Corporation who is neither an officer or
employee of the Corporation, an Acquiring Person, nor any Person
proposing or attempting to effect a business combination, tender
offer, exchange offer or similar transaction with the Corporation
or its shareholders (including, without limitation, a merger,
tender offer or exchange offer, sale of substantially all of the
Corporation's assets, or liquidation of the Corporation's assets),
any Affiliate or Associate of such Acquiring Person or Person or
any other Person acting directly or indirectly on behalf of, or as
a representative of, or in concert with, or who is a nominee of,
any such Acquiring Person, Person, Affiliate or Associate.
(i) "Distribution Date" shall have the meaning set forth
in Section 3 hereof.
(j) "Exchange Act" means the Securities and Exchange Act
of 1934, as amended.
(k) "Final Expiration Date" shall have the meaning set
forth in Section 7 hereof.
(l) "Grandfathered Shareholder" shall mean (i) Franklin
Advisers, Inc., (ii) Hilltop Partners, L.P., Laifer Inc. and Lance
Laifer (each a "Laifer Party" and collectively the "Laifer
Parties"), and (iii) any Permitted Transferee; provided, however,
that any Grandfathered Shareholder, except as provided in Section
1(a)(B) hereof, shall cease to be a Grandfathered Shareholder at
the time such Person, or any Affiliate or Associate of such Person,
beneficially owns additional Common Shares (other than as a result
of a stock dividend or stock split) equal to one percent or more of
the then outstanding Common Shares.
(m) "Permitted Transfer" means any Transfer of some or
all of the Common Shares beneficially owned by a Grandfathered
Shareholder to any Person that (i) is approved as a Permitted
Transferee by the Board of Directors of the Corporation; or (ii)
does not beneficially own, after giving effect to such Transfer and
any contemporaneous Transfer, any Common Shares other than the
Common Shares transferred by such Grandfathered Shareholder to such
Person in such Transfer and any additional Common Shares, not
exceeding one percent of the then outstanding Common Shares, as
such Person owned immediately prior to such Transfer.
(n) "Permitted Transferee" means any transferee of
Common Shares pursuant to a Permitted Transfer.
(o) "Person" shall mean any individual, firm,
partnership, corporation, trust, association, joint venture or
other entity, and shall include any successor (by merger or
otherwise) of such entity.
(p) "Redemption Date" shall have the meaning set forth
in Section 7 hereof.
(q) "Section 11(a)(ii) Event" shall mean any event
described in Section 11(a)(ii) hereof.
(r) "Section 13 Event" shall mean any event described in
clause (x), (y) or (z) of Section 13(a) hereof.
(s) "Shares Acquisition Date" shall mean the first date
of public announcement (which, for purposes of this definition,
shall include, without limitation, a report filed pursuant to the
Exchange Act) by the Corporation or an Acquiring Person that an
Acquiring Person has become such; provided, that, if such Person is
determined not to have become an Acquiring Person pursuant to
Section 1(a)(ii) hereof, then no Shares Acquisition Date shall be
deemed to have occurred.
(t) "Subsidiary" of any Person shall mean any
corporation or other Person of which a majority of the voting power
of the voting equity securities or equity interest is owned,
directly or indirectly, by such Person.
(u) "Transfer" shall mean any sale, assignment, transfer
or other disposition.
(v) "Triggering Event" shall mean any Section 11(a)(ii)
Event or any Section 13 Event.
Section 2. Appointment of Rights Agent. The Corporation
hereby appoints the Rights Agent to act as agent for the
Corporation and the holders of the Rights (who, in accordance with
Section 3 hereof, shall prior to the Distribution Date also be the
holders of Common Shares) in accordance with the terms and
conditions hereof, and the Rights Agent hereby accepts such
appointment. The Corporation may from time to time appoint such
co-Rights Agents as it may deem necessary or desirable.
Section 3. Issue of Right Certificates. (a) Until the
Shares Acquisition Date (including any such date which is after the
date of this Agreement and prior to the issuance of the Rights)
(the "Distribution Date"), (x) the Rights will be evidenced
(subject to the provisions of Section 3(b) hereof) by the
certificates for Common Shares registered in the names of the
holders thereof (which certificates shall also be deemed to be
Right Certificates) and not by separate Right Certificates, and (y)
the right to receive Right Certificates will be transferable only
in connection with the transfer of the underlying Common Shares
(including a transfer to the Corporation). As soon as practicable
after the Distribution Date, the Corporation will prepare and
execute, the Rights Agent will countersign and the Corporation will
send or cause to be sent by first-class, postage-prepaid mail, to
each record holder of Common Shares as of the close of business on
the Distribution Date, at the address of such holder shown on the
records of the Corporation, a Right Certificate, substantially in
the form of Exhibit A hereto (a "Right Certificate"), evidencing
one Right for each Common Share so held. As of and after the
Distribution Date, the Rights will be evidenced solely by such
Right Certificates.
(b) As promptly as practicable following the Record
Date, the Corporation will send a copy of a brief summary of the
Rights (together with an offer to furnish, upon request, a copy of
this Rights Agreement), by first-class, postage-prepaid mail, to
each record holder of Common Shares as of the close of business on
the Record Date, at the address of such holder shown on the records
of the Corporation. With respect to certificates for Common Shares
outstanding as of the Record Date, until the Distribution Date, the
Rights will be evidenced by such certificates registered in the
names of the holders thereof. Until the Distribution Date (or the
earlier of the Redemption Date or the Final Expiration Date), the
surrender for transfer of any certificate for Common Shares
outstanding on the Record Date shall also constitute the transfer
of the Rights associated with such Common Shares.
(c) Certificates for Common Shares which become
outstanding (including, without limitation, reacquired Common
Shares referred to in the last sentence of this paragraph (c))
after the Record Date but prior to the earliest of the Distribution
Date, and the Redemption Date or the Final Expiration Date shall be
deemed also to be certificates for Rights, and shall bear the
following legend:
This certificate also evidences and
entitles the holder hereof to certain rights
as set forth in a Rights Agreement between
Price Communications Corporation and Harris
Trust Company of New York, dated as of October
6, 1994 (the "Rights Agreement"), the terms of
which are hereby incorporated herein by
reference and a copy of which is on file at
the principal executive offices of Price
Communications Corporation. Under certain
circumstances, as set forth in the Rights
Agreement, such Rights will be evidenced by
separate certificates and will no longer be
evidenced by this certificate. Price
Communications Corporation will mail to the
holder of this certificate a copy of the
Rights Agreement without charge after receipt
of a written request therefor. Under certain
circumstances set forth in the Rights
Agreement, Rights issued to, or held by, any
Person who is, was or becomes an Acquiring
Person or an Affiliate or Associate thereof
(as defined in the Rights Agreement) and
certain related persons, whether currently
held by or on behalf of such Person or by any
subsequent holder, may become null and void.
With respect to such certificates containing the
foregoing legend, until the Distribution Date, the Rights
associated with the Common Shares represented by such certificates
shall be evidenced by such certificates alone, and the surrender
for transfer of any such certificate shall also constitute the
transfer of the Rights associated with the Common Shares
represented thereby. In the event that the Corporation purchases
or acquires any Common Shares after the Record Date but prior to
the Distribution Date, any Rights associated with such Common
Shares shall be deemed canceled and retired so that the Corporation
shall not be entitled to exercise any Rights associated with the
Common Shares which are no longer outstanding.
Section 4. Form of Right Certificate. (a) The Right
Certificates (and the forms of election to purchase and of
assignment to be printed on the reverse thereof) shall be
substantially in the form set forth in Exhibit A hereto and may
have such marks of identification or designation and such legends,
summaries or endorsements printed thereon as the Corporation may
deem appropriate and as are not inconsistent with the provisions of
this Agreement, or as may be required to comply with any applicable
law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which the Rights
may from time to time be listed, or to conform to usage. Subject
to the provisions of Section 11 and Section 22 hereof, the Right
Certificates shall entitle the holders thereof to purchase such
number of Common Shares as shall be set forth therein at the price
per Common Share set forth therein (the "Purchase Price"), but the
amount and type of securities purchasable upon the exercise of each
Right and the Purchase Price thereof shall be subject to adjustment
as provided herein.
(b) Any Right Certificate issued pursuant to Section
3(a) or Section 22 hereof that represents Rights which are null and
void pursuant to Section 7(e) of this Agreement and any Right
Certificate issued pursuant to Section 6 or Section 11 hereof upon
transfer, exchange, replacement or adjustment of any other Right
Certificate referred to in this sentence, shall contain (to the
extent feasible) the following legend:
The Rights represented by this Right
Certificate are or were beneficially owned by
a Person who was or became an Acquiring Person
or an Affiliate or Associate of an Acquiring
Person (as such terms are defined in the
Rights Agreement). Accordingly, this Right
Certificate and the Rights represented hereby
are null and void.
The provisions of Section 7(e) of this Rights Agreement
shall be operative whether or not the foregoing legend is contained
on any such Right Certificate.
Section 5. Countersignature and Registration. The Right
Certificates shall be executed on behalf of the Corporation by its
Chairman of the Board, its Chief Executive Officer, its President,
any of its Vice Presidents, or its Treasurer, either manually or by
facsimile signature, shall have affixed thereto the Corporation's
seal or a facsimile thereof, and shall be attested by the Secretary
or an Assistant Secretary of the Corporation, either manually or by
facsimile signature. The Right Certificates shall be countersigned
by the Rights Agent and shall not be valid for any purpose unless
so countersigned. In case any officer of the Corporation who shall
have signed any of the Right Certificates shall cease to be such
officer of the Corporation before countersignature by the Rights
Agent and issuance and delivery by the Corporation, such Right
Certificates may nevertheless be countersigned by the Rights Agent
and issued and delivered by the Corporation with the same force and
effect as though the person who signed such Right Certificates had
not ceased to be such officer of the Corporation; and any Right
Certificate may be signed on behalf of the Corporation by any
person who, at the actual date of the execution of such Right
Certificate, shall be a proper officer of the Corporation to sign
such Right Certificate, although at the date of the execution of
this Rights Agreement any such person was not such an officer.
Following the Distribution Date, the Rights Agent will
keep or cause to be kept, at its office designated as the
appropriate place for surrender of such Right Certificate or
transfer, books for registration and transfer of the Right
Certificates issued hereunder. Such books shall show the names and
addresses of the respective holders of the Right Certificates, the
number of Rights evidenced on its face by each of the Right
Certificates and the certificate number and the date of each of the
Right Certificates.
Section 6. Transfer, Split-up, Combination and Exchange
of Right Certificates; Mutilated, Destroyed, Lost or Stolen Right
Certificate. Subject to the provisions of Section 4(b), Section
7(e) and Section 14 hereof, at any time after the close of business
on the Distribution Date, and at or prior to the close of business
on the earlier of the Redemption Date or the Final Expiration Date,
any Right Certificate or Right Certificates may be transferred,
split up, combined or exchanged for another Right Certificate or
Right Certificates, entitling the registered holder to purchase a
like number of Common Shares (or, following a Section 13 Event,
other securities, as the case may be) as the Right Certificate or
Right Certificates surrendered then entitled such holder (or former
holder in the case of a transfer) to purchase. Any registered
holder desiring to transfer, split up, combine or exchange any
Right Certificate or Right Certificates shall make such request in
writing delivered to the Rights Agent, and shall surrender the
Right Certificate or Right Certificates to be transferred, split
up, combined or exchanged at the office of the Rights Agent
designated for such purpose. Neither the Rights Agent nor the
Corporation shall be obligated to take any action whatsoever with
respect to the transfer of any such surrendered Right Certificate
until the registered holder shall have completed and signed the
certificate contained in the form of assignment on the reverse side
of such Right Certificate and shall have provided such additional
evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as the
Corporation shall reasonably request. Thereupon the Rights Agent
shall, subject to Section 4(b), Section 7(e) and Section 14 hereof,
countersign and deliver to the Person entitled thereto a Right
Certificate or Right Certificates, as the case may be, as so
requested. The Corporation may require payment of a sum sufficient
to cover any tax or governmental charge that may be imposed in
connection with any transfer, split up, combination or exchange of
Right Certificates.
Upon receipt by the Corporation and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Right Certificate, and, in case of
loss, theft or destruction, of indemnity or security reasonably
satisfactory to them, and, at the Corporation's request,
reimbursement to the Corporation and the Rights Agent of all
reasonable expenses incidental thereto, and upon surrender to the
Rights Agent and cancellation of the Right Certificate if
mutilated, the Corporation will make and deliver a new Right
Certificate of like tenor to the Rights Agent for countersignature
and delivery to the registered holder in lieu of the Right
Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights. (a) Subject to Section 7(e) hereof,
the registered holder of any Right Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein) in
whole or in part at any time after the Distribution Date upon
surrender of the Right Certificate, with the form of election to
purchase and the certificate on the reverse side thereof duly
executed, to the Rights Agent at the principal office or offices of
the Rights Agent designated for such purpose, together with payment
of the aggregate Purchase Price for the total number of Common
Shares (or other securities, as the case may be) as to which such
surrendered Rights are exercised, at or prior to the earliest of
(i) the close of business on October 17, 2004 (the "Final
Expiration Date"), or (ii) the time at which the Rights are
redeemed as provided in Section 23 hereof (the "Redemption Date").
(b) The purchase price (the "Purchase Price") for each
Common Share pursuant to the exercise of a Right shall initially be
$22.50, shall be subject to adjustment from time to time as
provided in Sections 11 and 13(a) hereof and shall be payable in
accordance with paragraph (c) below.
(c) Upon receipt of a Right Certificate representing
exercisable Rights, with the form of election to purchase and the
certificate duly executed, accompanied by payment of the Purchase
Price for the Common Shares (or other securities, as the case may
be) to be purchased and an amount equal to any applicable transfer
tax required to be paid by the holder of such Right Certificate in
accordance with Section 6 hereof by certified check, cashier's
check or money order payable to the order of the Corporation, the
Rights Agent shall thereupon promptly (i) (A) requisition from any
transfer agent of the Common Shares certificates for the number of
Common Shares to be purchased and the Corporation hereby
irrevocably authorizes its transfer agent to comply with all such
requests, or (B) if the Corporation, in its sole discretion, shall
have elected to deposit the Common Shares issuable upon exercise of
the Rights hereunder into a depositary, requisition from the
depositary agent depositary receipts representing such number of
Common Shares as are to be purchased (in which case certificates
for the Common Shares represented by such receipts shall be
deposited by the transfer agent with the depositary agent) and the
Corporation will direct the depositary agent to comply with such
requests, (ii) when appropriate, requisition from the Corporation
the amount of cash to be paid in lieu of issuance of fractional
shares in accordance with Section 14 hereof, (iii) after receipt of
such certificates or depositary receipts, cause the same to be
delivered to or upon the order of the registered holder of such
Right Certificate, registered in such name or names as may be
designated by such holder, and (iv) when appropriate, after receipt
thereof, deliver such cash to or upon the order of the registered
holder of such Right Certificate. In the event that the
Corporation is obligated to issue other securities of the
Corporation pursuant to Section 11(a) hereof, the Corporation will
make all arrangements necessary so that such other securities are
available for distribution by the Rights Agent, if and when
appropriate.
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 Right Certificate to the registered holder thereof
after imprinting, stamping or otherwise indicating thereon that the
rights represented by such Right Certificate no longer include the
rights provided by Section 11(a)(ii) of the Rights Agreement and if
less than all the Rights represented by such Right Certificate were
so exercised, the Rights Agent shall indicate on the Right
Certificate the number of Rights represented thereby which continue
to include the rights provided by Section 11(a)(ii).
(d) In case the registered holder of any Right
Certificate shall exercise less than all the Rights evidenced
thereby, a new Right Certificate evidencing Rights equivalent to
the Rights remaining unexercised shall be issued by the Rights
Agent to the registered holder of such Right Certificate or to his
duly authorized assigns, subject to the provisions of Section 14
hereof, or the Rights Agent shall place an appropriate notation on
the Right Certificate with respect to those Rights exercised.
(e) Notwithstanding anything in this Agreement to the
contrary, from and after the first occurrence of a Section
11(a)(ii) Event, any Rights beneficially owned by (i) an Acquiring
Person or an Affiliate or Associate of an Acquiring Person, (ii) a
transferee of an Acquiring Person (or of any Affiliate or Associate
thereof) who becomes a transferee after the Acquiring Person
becomes such, or (iii) a transferee of an Acquiring Person (or of
any Affiliate or Associate thereof) who becomes a transferee prior
to or concurrently with the Acquiring Person becoming such and
receives such Rights pursuant to either (A) a transfer (whether or
not for consideration) from the Acquiring Person to holders of
equity interests in such Acquiring Person or to any Person with
whom the Acquiring Person has a continuing agreement, arrangement
or understanding regarding the transferred Rights or (B) a transfer
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 or its
Affiliates, Associates or transferees hereunder.
(f) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Corporation shall be
obligated to undertake any action with respect to a registered
holder upon the occurrence of any purported exercise as set forth
in this Section 7 unless such registered holder shall have (i)
completed and signed the certificate contained in the form of
election to purchase set forth on the reverse side of the Right
Certificate surrendered for such exercise, and (ii) provided such
additional evidence of the identity of the Beneficial Owner (or
former Beneficial Owner) or Affiliates or Associates thereof as the
Corporation shall reasonably request.
Section 8. Cancellation and Destruction of Right
Certificates. All Right Certificates surrendered for the purpose
of exercise (other than an exercise pursuant to Section 11(a)(ii)),
transfer, split up, combination or exchange shall, if surrendered
to the Corporation or to any of its agents, be delivered to the
Rights Agent for cancellation or in canceled form, or, if
surrendered to the Rights Agent, shall be canceled by it, and no
Right Certificates shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Rights
Agreement. The Corporation shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall so cancel
and retire, any other Right Certificate purchased or acquired by
the Corporation otherwise than upon the exercise thereof. The
Rights Agent shall deliver all canceled Right Certificates to the
Corporation, or shall, at the written request of the Corporation,
destroy such canceled Right Certificates, and in such case shall
deliver a certificate of destruction thereof to the Corporation.
Section 9. Reservation and Availability of Common
Shares. The Corporation covenants and agrees that at all times
after the occurrence of a Section 11(a)(ii) Event it will, to the
extent reasonably practicable, cause to be reserved and kept
available out of its authorized and unissued Common Shares (and/or
other securities), or any authorized and issued Common Shares
(and/or other securities) held in its treasury, the number of
Common Shares (or other securities, as the case may be) that will
be sufficient to permit the exercise in full of all outstanding
Rights pursuant to this Agreement.
So long as the Common Shares (or other securities, as the
case may be) issuable upon the exercise of the Rights may be listed
on any national securities exchange, the Corporation shall use its
best efforts to cause, from and after such time as the Rights
become exercisable, all shares reserved for such issuance to be
listed on such exchange upon official notice of issuance upon such
exercise.
The Corporation covenants and agrees that it will take
all such action as may be necessary to ensure that all Common
Shares (or other securities, as the case may be) delivered upon
exercise of Rights shall, at the time of delivery of the
certificates for such shares or other securities (subject to
payment of the Purchase Price), be duly and validly authorized and
issued and fully paid and non-assessable shares or securities.
The Corporation further covenants and agrees that it will
pay when due and payable any and all U.S. federal and state
transfer taxes and charges which may be payable in respect of the
issuance or delivery of the Right Certificates or of any Common
Shares (or other securities, as the case may be) upon the exercise
of Rights. The Corporation shall not, however, be required to pay
any transfer tax which may be payable in respect of any transfer or
delivery of Right Certificates to a person other than, or the
issuance or delivery of certificates or depositary receipts for the
Common Shares (or other securities, as the case may be) in a name
other than that of, the registered holder of the Right Certificate
evidencing Rights surrendered for exercise, or to issue or to
deliver any certificates or depositary receipts for Common Shares
(or other securities, as the case may be) upon the exercise of any
Rights, until any such tax shall have been paid (any such tax being
payable by the holder of such Right Certificate at the time of
surrender) or until it has been established to the Corporation's
reasonable satisfaction that no such tax is due.
The Corporation shall use its best efforts to (i) file,
as soon as practicable following the Shares Acquisition Date (or,
if required by law, at such earlier time following the Distribution
Date as so required), a registration statement under the Act, with
respect to the securities purchasable upon exercise of the Rights
on an appropriate form, (ii) cause such registration statement to
become effective as soon as practicable after such filing, and
(iii) cause such registration statement to remain effective (with
a prospectus at all times meeting the requirements of the Act and
the rules and regulations thereunder) until the date of the
expiration of the rights provided by Section 11(a)(ii). The
Corporation will also take such action as may be appropriate under
the blue sky laws of the various states.
Section 10. Common Shares Record Date. Each person in
whose name any certificate for Common Shares (or other securities,
as the case may be) is issued upon the exercise of Rights shall for
all purposes be deemed to have become the holder of record of the
Common Shares (or other securities, as the case may be) represented
thereby on, and such certificate shall be dated, the date upon
which the Right Certificate evidencing such Rights was duly
surrendered and payment of the Purchase Price (and any applicable
transfer taxes) was made; provided, however, that, if the date of
such surrender and payment is a date upon which the Common Shares
(or other securities, as the case may be) transfer books of the
Corporation are closed, such person shall be deemed to have become
the record holder of such shares on, and such certificate shall be
dated, the next succeeding Business Day on which the Common Shares
(or other securities, as the case may be) transfer books of the
Corporation are open.
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 Corporation shall at any time
after the date of this Agreement (A) declare a dividend on the
Common Shares payable in Common Shares, (B) subdivide the
outstanding Common Shares, (C) combine the outstanding Common
Shares into a smaller number of Common Shares or (D) issue any
shares of its capital stock in a reclassification of the Common
Shares (including any such reclassification in connection with a
consolidation or merger in which the Corporation is the continuing
or surviving corporation), except as otherwise provided in this
Section 11(a) and Section 7(e) hereof, (x) 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 (y) the number and kind of shares of capital
stock issuable on such date, shall be proportionately adjusted so
that the holder of any Right exercised after such time shall be
entitled to receive the aggregate number and kind of shares of
capital stock which, if such Right had been exercised immediately
prior to such date and at a time when the Common Shares transfer
books of the Corporation were open, such holder would have owned
upon such exercise and been entitled to receive by virtue of such
dividend, subdivision, combination or reclassification; provided,
however, that in no event shall the consideration to be paid upon
the exercise of one Right be less than the aggregate par value of
the shares of capital stock of the Corporation issuable upon
exercise of one Right. If an event occurs 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 below and in Section 7(e) hereof)
thereafter be entitled to receive, upon exercise thereof at a price
equal to the then current Purchase Price, in accordance with the
terms of this Agreement, such number of Common Shares as shall
equal the result obtained by (x) multiplying the then current
Purchase Price by the then number of Common Shares for which a
Right was exercisable immediately prior to the first occurrence of
a Section 11(a)(ii) Event, and dividing that product by (y) 50% of
the then current per share market price of the Corporation's Common
Shares (determined pursuant to Section 11(d) hereof) on the date of
such first occurrence (such number of shares being referred to as
the "Adjustment Shares"); provided, however, that if the
transaction that would otherwise give rise to the foregoing
adjustment is also subject to the provisions of Section 13 hereof,
then only the provisions of Section 13 hereof shall apply and no
adjustment shall be made pursuant to this Section 11(a)(ii).
(iii) In the event that there shall not be
sufficient treasury shares or authorized but unissued (and
unreserved) Common Shares to permit the exercise in full of the
Rights in accordance with the foregoing subparagraph (ii) and the
Rights become so exercisable, notwithstanding any other provision
of this Agreement, to the extent necessary and permitted by
applicable law, each Right shall thereafter represent the right to
receive, upon exercise thereof at the then current Purchase Price
in accordance with the terms of this Agreement, (x) a number of (or
fractions of) Common Shares (up to the maximum number of Common
Shares which may permissibly be issued) and (y) a number of (or
fractions of) other securities of the Corporation (or, in the
discretion of the Board of Directors of the Corporation, debt)
which the Board of Directors of the Corporation has determined to
have the same aggregate current market value (determined pursuant
to Section 11(d) hereof, to the extent applicable) as one Common
Share (such number of, or fractions of, Common Shares, other equity
securities or debt of the Corporation being referred to as a
"capital stock equivalent"), equal in the aggregate to the number
of Adjustment Shares; provided, however, if sufficient Common
Shares and/or capital stock equivalents are unavailable, then the
Corporation shall, to the extent permitted by applicable law, take
all such action as may be necessary to authorize additional Common
Shares or capital stock equivalents for issuance upon exercise of
the Rights, including the calling of a meeting of shareholders; and
provided, further, that if the Corporation is unable to cause
sufficient Common Shares and/or capital stock equivalents to be
available for issuance upon exercise in full of the Rights, then
each Right shall thereafter represent the right to receive the
Adjusted Number of Shares upon exercise at the Adjusted Purchase
Price (as such terms are hereinafter defined). As used herein, the
term "Adjusted Number of Shares" shall be equal to that number of
(or fractions of) Common Shares (and/or capital stock equivalents)
equal to the product of (x) the number of Adjustment Shares and (y)
a fraction, the numerator of which is the number of Common Shares
(and/or capital stock equivalents) available for issuance upon
exercise of the Rights and the denominator of which is the
aggregate number of Adjustment Shares otherwise issuable upon
exercise in full of all Rights (assuming there were a sufficient
number of Common Shares available) (such fraction being referred to
as the "Proration Factor"). The "Adjusted Purchase Price" shall
mean the product of the Purchase Price and the Proration Factor.
The Board of Directors of the Corporation may, but shall not be
required to, establish procedures to allocate the right to receive
Common Shares and capital stock equivalents upon exercise of the
Rights among holders of Rights.
(b) In case the Corporation shall fix a record date for
the issuance of rights (other than the Rights), options or warrants
to all holders of Common Shares entitling them (for a period
expiring within 45 calendar days after such record date) to
subscribe for or purchase Common Shares (or shares having the same
rights and privileges as the Common Shares ("equivalent common
shares")) or securities convertible into Common Shares or
equivalent common shares at a price per Common Share or equivalent
common share (or having a conversion price per share, if a security
convertible into Common Shares or equivalent common shares) less
than the then current per share market price of the Common Shares
(as determined pursuant to Section 11(d) hereof) on such record
date, the Purchase Price to be in effect after such record date
shall be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the numerator
of which shall be the number of Common Shares outstanding on such
record date plus the number of Common Shares which the aggregate
offering price of the total number of Common Shares and/or
equivalent common shares so to be offered (and/or the aggregate
initial conversion price of the convertible securities so to be
offered) would purchase at such current per share market price, and
the denominator of which shall be the number of Common Shares
outstanding on such record date plus the number of additional
Common Shares and/or equivalent common shares to be offered for
subscription or purchase (or into which the convertible securities
so to be offered are initially convertible); provided, however,
that in no event shall the consideration to be paid upon the
exercise of one Right be less than the aggregate par value of the
shares of capital stock of the Corporation issuable upon exercise
of one Right. In case such subscription price may be paid in a
consideration part or all of which shall be in a form other than
cash, the value of such consideration shall be determined in good
faith by the Board of Directors of the Corporation, whose
determination shall be described in a statement filed with the
Rights Agent and shall be binding on the Rights Agent. Common
Shares owned by or held for the account of the Corporation shall
not be deemed outstanding for the purpose of any such computation.
Such adjustment shall be made successively whenever such a record
date is fixed; and in the event that such rights, options or
warrants are not so issued, the Purchase Price shall be adjusted to
be the Purchase Price which would then be in effect if such record
date had not been fixed.
(c) In case the Corporation shall fix a record date for
the making of a distribution to all holders of the Common Shares
(including any such distribution made in connection with a
consolidation or merger in which the Corporation is the continuing
or surviving corporation) of evidences of indebtedness or assets
(other than a regular quarterly cash dividend or a dividend payable
in Common Shares) or subscription rights or warrants (excluding
those referred to in Section 11(b) hereof), the Purchase Price to
be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be the then
current per share market price (as determined pursuant to Section
11(d) hereof) of the Common Shares on such record date, less the
fair market value (as determined in good faith by the Board of
Directors of the Corporation, whose determination shall be
described in a statement filed with the Rights Agent and shall be
binding on the Rights Agent) of the portion of the assets or
evidences of indebtedness so to be distributed or of such
subscription rights or warrants applicable to one Common Share and
the denominator of which shall be such current per share market
price of the Common Shares; provided, however, that in no event
shall the consideration to be paid upon the exercise of one Right
be less than the aggregate par value of the shares of capital stock
of the Corporation to be issued upon exercise of one Right. Such
adjustments shall be made successively whenever such a record date
is fixed; and in the event that such distribution is not so made,
the Purchase Price shall again be adjusted to be the Purchase Price
which would then be in effect if such record date had not been
fixed.
(d) For the purpose of any computation hereunder, the
"current per share market price" of any security (a "Security" for
the purpose of this Section 11(d)), including, without limitation
the Common Shares, on any date shall be deemed to be the average of
the daily closing prices per share of such Security for the thirty
(30) consecutive Trading Days (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 Security is
determined during a period following the announcement by the issuer
of such Security of (A) a dividend or distribution on such Security
payable in shares of such Security or securities convertible into
such shares, or (B) any subdivision, combination or
reclassification of such Security and prior to the expiration of
thirty (30) Trading Days after the ex-dividend date for such
dividend or distribution, or the record date for such subdivision,
combination or reclassification, then, and in each such case, the
current per share market price shall be appropriately adjusted to
reflect the current market price per share equivalent of such
Security. The closing price for each day shall be the last sale
price, regular way, or, in case no such sale takes place on such
day, the average of the closing bid and asked prices, regular way,
in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or
admitted to trading on the American Stock Exchange or, if the
Security is not listed or admitted to trading on the American 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 Security is listed or
admitted to trading or, if the Security is not listed or admitted
to trading on any national securities exchange, the last quoted
price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by the
National Association of Securities Dealers, Inc. Automated
Quotations System ("NASDAQ") or such other system then in use, or,
if on any such date the Security is not quoted by any such
organization, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in the
Security selected by the Board of Directors of the Corporation. If
on any such date no such market maker is making a market in the
Security, the fair value of the Security on such date as determined
in good faith by the Board of Directors of the Corporation shall be
used. The term "Trading Day" shall mean a day on which the
principal national securities exchange on which the Security is
listed or admitted to trading is open for the transaction of
business or, if the Security is not listed or admitted to trading
on any national securities exchange, a Business Day.
(e) Notwithstanding anything herein to the contrary
(except the last sentence of this Section 11(e)), 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 Common Share or any
other share or 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 (3) years from the date of the transaction which mandates
such adjustment or (ii) the Final Expiration Date.
(f) If as a result of an adjustment made pursuant to
Section 11(a)(i) or 13(a) hereof, the holder of any Right
thereafter exercised shall become entitled to receive any shares of
capital stock of the Corporation other than Common Shares,
thereafter the number of other shares so receivable upon exercise
of any Right shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Common Shares contained in Section
11(a) through (c), inclusive, and the provisions of Sections 7, 9,
10, 13 and 14 with respect to the Common Shares shall apply on like
terms to any such other shares.
(g) All Rights originally issued by the Corporation
subsequent to any adjustment made to the Purchase Price hereunder
shall evidence the right to purchase, at the adjusted Purchase
Price, the number of Common Shares purchasable from time to time
hereunder upon exercise of the Rights, all subject to further
adjustment as provided herein.
(h) Unless the Corporation shall have exercised its
election as provided in Section 11(i), upon each adjustment of the
Purchase Price as a result of the calculations made in Sections
11(b) and (c), each Right outstanding immediately prior to the
making of such adjustment shall thereafter evidence the right to
purchase, at the adjusted Purchase Price that number of Common
Shares (calculated to the nearest ten-thousandth of a Common Share)
obtained by (i) multiplying (x) the number of Common Shares covered
by a Right immediately prior to this adjustment by (y) the Purchase
Price in effect immediately prior to such adjustment of the
Purchase Price and (ii) dividing the product so obtained by the
Purchase Price in effect immediately after such adjustment of the
Purchase Price.
(i) The Corporation may elect on or after the date of
any adjustment of the Purchase Price to adjust the number of
Rights, in lieu of any adjustment in the number of Common Shares
purchasable upon the exercise of a Right. Each of the Rights
outstanding after such adjustment of the number of Rights shall be
exercisable for the number of Common Shares 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 the adjustment of the Purchase Price by the
Purchase Price in effect immediately after adjustment of the
Purchase Price. The Corporation shall make a public announcement
of its election to adjust the number of Rights, indicating the
record date for the adjustment, and, if known at the time, the
amount of the adjustment to be made. This record date may be the
date on which the Purchase Price is adjusted or any day thereafter,
but, if the Right Certificates have been issued, shall be at least
ten (10) days later than the date of the public announcement. If
Right Certificates have been issued, upon each adjustment of the
number of Rights pursuant to this Section 11(i), the Corporation
shall, as promptly as practicable, cause to be distributed to
holders of record of Right Certificates on such record date Right
Certificates evidencing, subject to Section 14 hereof, the
additional Rights to which such holders shall be entitled as a
result of such adjustment, or, at the option of the Corporation,
shall cause to be distributed to such holders of record in
substitution and replacement for the Rights Certificates held by
such holders prior to the date of adjustment, and upon surrender
thereof, if required by the Corporation, new Right Certificates
evidencing all the Rights to which such holders shall be entitled
after such adjustment. Right Certificates so to be distributed
shall be issued, executed and countersigned in the manner provided
for herein and shall be registered in the names of the holders of
record of Right Certificates on the record date specified in the
public announcement.
(j) Irrespective of any adjustment or change in the
Purchase Price or the number of Common Shares issuable upon the
exercise of the Rights, the Right Certificates theretofore and
thereafter issued may continue to express the Purchase Price and
the number of Common Shares which were expressed in the initial
Right Certificates issued hereunder.
(k) Before taking any action that would cause an
adjustment reducing the Purchase Price below the aggregate par
value, if any, of the number of Common Shares or other securities
issuable in respect of the Purchase Price upon exercise of a Right,
the Corporation shall take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Corporation
may validly and legally issue such number of fully paid and non-
assessable Common Shares 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 Corporation may elect to
defer until the occurrence of such event the issuance to the holder
of any Right exercised after such record date the Common Shares or
other securities of the Corporation, if any, issuable upon such
exercise over and above the Common Shares or other securities of
the Corporation, if any, issuable upon exercise on the basis of the
Purchase Price in effect prior to such adjustment; provided,
however, the Corporation shall deliver to such holder a due bill or
other appropriate instrument evidencing such holder's right to
receive such additional shares upon the occurrence of the event
requiring such adjustment.
(m) Notwithstanding anything in this Section 11 to the
contrary, the Corporation shall be entitled to make such reductions
in the Purchase Price, in addition to those adjustment 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 (i)
any consolidation or subdivision of the Common Shares, (ii)
issuance wholly for cash of Common Shares at less than the current
market price, (iii) issuance wholly for cash of Common Shares or
securities which by their terms are convertible into or
exchangeable for Common Shares, (iv) stock dividends, or (v)
issuance of rights, options or warrants referred to in this Section
11, hereafter made by the Corporation to holders of its Common
Shares shall not be taxable to such shareholders.
(n) The Corporation covenants and agrees that it shall
not, at any time after the Distribution Date, (i) consolidate with
any other Person (other than a Subsidiary of the Corporation in a
transaction which does not violate Section 11(o) hereof), (ii)
merge with or into any other Person (other than a Subsidiary of the
Corporation 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 Corporation and its Subsidiaries
(taken as a whole) to any other Person or Persons (other than the
Corporation and/or 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
shareholders of the Person who constitutes, or would constitute,
the "Principal Party" for purposes of Section 13(a) hereof shall
have received a distribution of Rights previously owned by such
Person or any of its Affiliates and Associates. The Corporation
shall not consummate any such consolidation, merger, sale or
transfer unless prior thereto the Corporation and such other Person
shall have executed and delivered to the Rights Agent a
supplemental agreement evidencing compliance with this Section
11(n).
(o) The Corporation covenants and agrees that, after the
Distribution Date, it will not, except as permitted by Section 23
or Section 27 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) 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
Section 11 or 13 hereof, the Corporation shall promptly (a) prepare
a certificate setting forth such adjustment, and a brief statement
of the facts accounting for such adjustment, (b) file with the
Rights Agent and with each transfer agent for the Common Shares a
copy of such certificate and (c) mail a brief summary thereof to
each holder of a Right 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 Shares Acquisition Date, directly or indirectly, (x) the
Corporation shall consolidate with, or merge with and into, any
Person, (y) the Corporation shall consolidate with, or merge with,
any Person, and the Corporation shall be the continuing or
surviving corporation of such consolidation or merger (other than,
in a case of any transaction described in (x) or (y), a merger or
consolidation which would result in all of the securities generally
entitled to vote in the election of directors ("voting securities")
of the Corporation outstanding immediately prior thereto continuing
to represent (either by remaining outstanding or by being converted
into securities of the surviving entity) all of the voting
securities of the Corporation or such surviving entity outstanding
immediately after such merger or consolidation and the holders of
such securities not having changed as a result of such merger or
consolidation), or (z) the Corporation shall sell or otherwise
transfer (or one or more of its Subsidiaries shall sell or
otherwise transfer), in one transaction or a series of related
transactions, assets or earning power aggregating more than 50% of
the assets or earning power of the Corporation and its Subsidiaries
(taken as a whole) to any Person (other than the Corporation or any
Subsidiary of the Corporation in one or more transactions each of
which does not violate Section 11(o) hereof), then, and in each
such case, proper provision shall be made so that (i) each holder
of a Right, except as provided in Section 7(e) hereof, shall
thereafter have the right to receive, upon the exercise thereof at
a price equal to the then current Purchase Price, in accordance
with the terms of this Agreement and in lieu of Common Shares, such
number of freely tradeable Common Shares of the Principal Party (as
hereinafter defined), not subject to any liens, encumbrances,
rights of first refusal or other adverse claims, as shall equal the
result obtained by (A) multiplying the then current Purchase Price
by the number of Common Shares for which a Right is then
exercisable (without taking into account any adjustment previously
made pursuant to Section 11(a)(ii)) and dividing that product by
(B) 50% of the then current per share market price of the Common
Shares of such Principal Party (determined pursuant to Section
11(d) hereof) on the date of consummation of such Section 13 Event;
(ii) such Principal Party shall thereafter be liable for, and shall
assume, by virtue of such Section 13 Event, all the obligations and
duties of the Corporation pursuant to this Agreement; (iii) the
term "Corporation" shall thereafter be deemed to refer to such
Principal Party, it being specifically intended that the provisions
of Section 11 hereof shall apply only to such Principal Party
following the first occurrence of a Section 13 Event; and (iv) such
Principal Party shall take such steps (including, but not limited
to, the reservation of a sufficient number of its Common Shares) in
connection with the consummation of any such transaction as may be
necessary to assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be, in relation to the
Common Shares thereafter deliverable upon the exercise of the
Rights.
(b) "Principal Party" shall mean:
(i) in the case of any transaction described in
clause (x) or (y) of the first sentence of Section 13(a), the
Person that is the issuer of any securities into which Common
Shares of the Corporation are converted in such merger or
consolidation, and if no securities are so issued, the Person that
is the other party to such merger or consolidation (including, if
applicable, the Corporation if it is the surviving corporation);
and
(ii) in the case of any transaction described in
clause (z) of the first sentence of Section 13(a), the Person that
is the party receiving the greatest portion of the assets or
earning power transferred pursuant to such transaction or
transactions; provided, however, that in any of the foregoing
cases, (1) if the Common Shares of such Person are not at such time
and have not been continuously over the preceding twelve (12) month
period registered under Section 12 of the Exchange Act, and such
Person is a direct or indirect Subsidiary of another Person the
Common Shares of which are and have been so registered, "Principal
Party" shall refer to such other Person; (2) in case such Person is
a Subsidiary, directly or indirectly, of more than one Person, the
Common Shares 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 Shares 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 Corporation shall not consummate any such
consolidation, merger, sale or transfer unless the Principal Party
shall have a sufficient number of its authorized Common Shares
which have not been issued or reserved for issuance to permit the
exercise in full of the Rights in accordance with this Section 13
and unless prior thereto the Corporation and such Principal Party
shall have executed and delivered to the Rights Agent a
supplemental agreement providing for the terms set forth in
paragraphs (a) and (b) of this Section 13 and further providing
that, as soon as practicable after the date of any consolidation,
merger, sale or transfer mentioned in paragraph (a) of this Section
13, the Principal Party at its own expense shall:
(i) prepare and file a registration statement under
the Act with respect to the Rights and the securities purchasable
upon exercise of the Rights on an appropriate form, and use its
best efforts to cause such registration statement to (A) become
effective as soon as practicable after such filing and (B) remain
effective (with a prospectus at all times meeting the requirements
of the Act) until the Final Expiration Date;
(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 which
comply in all respects with the requirements for registration on
Form 10 under the Exchange Act.
The provisions of this Section 13 shall similarly apply
to successive mergers or consolidations or sales or other
transfers. 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 thereof.
Section 14. Fractional Rights and Fractional Shares.
(a) The Corporation shall not be required to issued fractions of
Rights or to distribute Right Certificates which evidence
fractional Rights. In lieu of such fractional Rights, there shall
be paid to the registered holders o the Right Certificates with
regard to which such fractional Rights would otherwise be issuable,
an amount in cash equal to the same fraction of the current market
value of a whole Right. For the purposes of this Section 14(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 for any day shall be the last sale
price, regular way, or, in case no such sale takes place on such
day, the average of the closing bid and asked prices, regular way,
in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or
admitted to trading on the American Stock Exchange or, if the
Rights are not listed or admitted to trading on the American 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 Corporation. If on any such date no such market maker is
making a market in the Rights, the fair value of the Rights on such
date as determined in good faith by the Board of Directors of the
Corporation shall be used.
(b) The Corporation shall not be required to issue
fractions of Common Shares upon exercise of the Rights or to
distribute certificates which evidence fractional Common Shares.
In lieu of fractional Common Shares, the Corporation shall pay to
the registered holders of Right Certificates at the time such
Rights are exercised as herein provided an amount in cash equal to
the same fraction of the current market value of one Common Share.
For the purposes of this Section 14(b), the current market value of
a Common Share shall be the closing price of a Common Share (as
determined pursuant to Section 11(d) hereof) for the Trading Day
immediately prior to the date of such exercise.
(c) The holder of a Right by the acceptance of the Right
expressly waives his right to receive any fractional Rights or any
fractional share upon exercise of a Right (except as provided
above).
Section 15. Rights of Action. All rights of action in
respect of this Agreement, excepting the rights of action given to
the Rights Agent under Section 18 hereof, are vested in the
respective registered holders of the Right Certificates (and, prior
to the Distribution Date, the registered holders of the Common
Shares); and any registered holder of any Right Certificate (or,
prior the Distribution Date, of the Common Shares), without the
consent of the Rights Agent or of the holder of any other Right
Certificate (or, prior to the Distribution Date, of the Common
Shares), may, in his own behalf and for his own benefit, enforce,
and may institute and maintain any suit, action or proceeding
against the Corporation to enforce, or otherwise act in respect of,
his right to exercise the Rights evidenced by such Right
Certificate in the manner provided in such Right Certificate and in
this Agreement. Without limiting the foregoing or any remedies
available to the holders of Rights, it is specifically acknowledged
that the holder of Rights would not have an adequate remedy at law
for any breach of this Agreement and will be entitled to specific
performance of the obligations under, and injunctive relief against
actual or threatened violations of the obligations of any Person
subject to, this Agreement.
Section 16. Agreement of Right Holders. Every holder
of a Right, by accepting the same, consents and agrees with the
Corporation 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 the Common
Shares;
(b) after the Distribution Date, the Right Certificates
are transferable only on the registry books of the Rights Agent if
surrendered at the principal office or offices of the Rights Agent
designated for such purpose, duly endorsed or accompanied by a
proper instrument of transfer and with the appropriate form fully
executed;
\DC subject to Section 6 and Section 7(f) hereof, the
Corporation and the Rights Agent may deem and treat the person in
whose name the Right Certificate (or, prior to the Distribution
Date, the associated Common Shares certificate) is registered as
the absolute owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing on the Right
Certificate or the associated Common Shares certificate made by
anyone other than the Corporation or the Rights Agent) for all
purposes whatsoever, and neither the Corporation nor the Rights
Agent, subject to the last sentence of Section 7(e) hereof, shall
be required to be affected by any notice to the contrary; and
(d) Notwithstanding anything in this Agreement to the
contrary, neither the Corporation nor the Rights Agent shall have
any liability to any holder of a Right or a beneficial interest in
a Right or other Person as a result of its inability to perform any
of its obligations under this Agreement by reason of any
preliminary or permanent injunction or other order, decree or
ruling issued by a court of competent jurisdiction or by a
governmental, regulatory or administrative agency or commission, or
any statute, rule, regulation or executive order promulgated or
enacted by any governmental authority, prohibiting or otherwise
restraining performance of such obligation; provided, however, the
Corporation must use its best efforts to have any such order,
decree or ruling lifted or otherwise overturned as soon as
possible.
Section 17. Right Certificate Holder Not Deemed a
Shareholder. No holder, as such, of any Right Certificate shall be
entitled to vote, receive dividends or be deemed for any purpose
the holder of the Common Shares or any other securities of the
Corporation which may at any time be issuable on the exercise of
the Rights represented thereby, nor shall anything contained herein
or in any Right Certificate be construed to confer upon the holder
of any Right Certificate, as such, any of the rights of a
shareholder of the Corporation or any right to vote for the
election of directors or upon any matter submitted to shareholders
at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions
affecting shareholders (except as provided in Section 25 hereof),
or to receive dividends or other distributions or to exercise any
preemptive or subscription rights, or otherwise, until the Right or
Rights evidenced by such Right Certificate shall have been
exercised in accordance with the provisions hereof.
Section 18. Concerning the Rights Agent. The
Corporation agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from
time to time, on demand of the Rights Agent, its reasonable
expenses and counsel fees and other disbursements incurred in the
administration and execution of this Agreement and the exercise and
performance of it duties hereunder. The Corporation also agrees to
indemnify the Rights Agent for, and to hold it harmless against,
any loss, liability, or expense, incurred without negligence, bad
faith or willful misconduct on the part of the Rights Agent, for
anything done or omitted by the Rights Agent in connection with the
acceptance and administration of this Agreement, including the
costs and expenses of defending against any claim of liability in
the premises. The indemnity provided for herein shall survive the
expiration of the Rights, the resignation or removal of the Rights
Agent and the termination of this Agreement.
The Rights Agent shall be fully protected and shall incur
no liability for, or in respect of, any action taken, suffered or
omitted by it in connection with, its administration of this
Agreement in reliance upon any Right Certificate, certificate
delivered to the Rights Agent pursuant to Sections 6 and 7 of this
Agreement, or certificate for Common Shares or for other securities
of the Corporation, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction,
consent, certificate, statement, or other paper, instruction 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 19. 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 stock
transfer or all or substantially all of the corporate trust
business of the Rights Agent or any successor Rights Agent, shall
be the successor to the Rights Agent under this Agreement without
the execution or filing of any paper or any further act on the part
of any of the parties hereto, provided that such corporation would
be eligible for appointment as a successor Rights Agent under the
provisions of Section 21 hereof. In case at the time such
successor Rights Agent shall succeed to the agency created by this
Agreement, any of the Right Certificates shall have been
countersigned but not delivered, any such successor Rights Agent
may adopt the countersignature of a predecessor Rights Agent and
deliver such Right Certificates so countersigned; and in case at
that time any of the Right Certificates shall not have been
countersigned, any successor Rights Agent may countersign such
Right Certificates either in the name of the predecessor or in the
name of the successor Rights Agent; and in all such cases such
Right Certificates shall have the full force provided in the Right
Certificates and in this Agreement.
In case at any time the name of the Rights Agent shall be
changed at such time any of the Right Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Right
Certificates so countersigned; and in case at that time any of the
Right Certificates shall not have been countersigned, the Rights
Agent may countersign such Right Certificates either in its prior
name or in its changed name; and in all such cases such Right
Certificates shall have the full force provided in the Right
Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent
undertakes only those duties and obligations imposed by this
Agreement upon the following terms and conditions (and no implied
duties or obligations shall be read against the Rights Agent), by
all of which the Corporation and the holders of Right Certificates,
by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who
may be legal counsel for the Corporation), and the opinion of such
counsel shall be full and complete authorization and protection to
the Rights Agent as to any action taken or omitted by it in good
faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent shall deem it necessary or desirable
that any fact or matter (including, without limitation, the
identity of an Acquiring Person and the determination of the
current market price of any Security) be proved or established by
the Corporation prior to taking or suffering any action hereunder,
such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by any one of the
Chairman of the Board, the Chief Executive Officer, the President,
any Vice President, the Treasurer or the Secretary of the
Corporation and delivered to the Rights Agent; and such certificate
shall be full authorization to the Rights Agent for any action
taken or suffered in good faith by it under the provisions of this
Agreement in reliance upon such certificate.
(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 Right Certificates (except its
countersignature on such Right Certificates) or be required to
verify the same, but all such statements and recitals are and shall
be deemed to have been made by the Corporation only.
(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
Right Certificate (except its countersignature thereof); nor shall
it be responsible for any breach by the Corporation of any covenant
or condition contained in this Agreement or in any Rights
Certificate; nor shall it be responsible for any change in the
exercisability of the Rights (including the Rights becoming void
pursuant to Section 7(e) hereof) or any adjustment required under
the provisions of Section 11 or Section 13 hereof or responsible
for the manner, method or amount of any such adjustment or the
ascertaining of the existence of facts that would require any such
adjustment (except with respect to the exercise of Rights evidenced
by Right Certificates after receipt of the certificate described in
Section 12 hereof); nor shall it by any act hereunder be deemed to
make any representation or warranty as to the authorization or
reservation of any Common Shares to be issued pursuant to this
Agreement or any Right Certificate or as to whether any Common
Shares will, when issued, be validly authorized and issued, fully
paid and non-assessable.
(f) The Corporation agrees that it will perform,
execute, acknowledge and deliver or cause to be performed,
executed, acknowledged and delivered all such further and other
acts, instruments and assurances as may reasonably be required by
the Rights Agent for the carrying out or performing by the Rights
Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed
to accept instructions with respect to the performance of its
duties hereunder from any one of the Chairman of the Board, the
Chief Executive Officer, the President, any Vice President, the
Treasurer of the Secretary of the Corporation, and to apply to such
officers for advice or instructions in connection with its duties,
and shall not be liable for any action taken or suffered by it in
good faith or lack of action in accordance with instructions of any
such officer or for any delay in acting while waiting for those
instructions. Any application by the Rights Agent for written
instructions from the Corporation may, at the option of the Rights
Agent, set forth in writing any action proposed to be taken or
omitted by the Rights Agent under this Rights Agreement and the
date on or after which such action shall be taken or such omission
shall be effective. The Rights Agent shall not be liable for any
action taken by, or omission of, the Rights Agent in accordance
with a proposal included in any such application on or after the
date specified in such application (which date shall not be less
than five Business Days after the date any officer of the
Corporation actually receives such application, unless any such
officer shall have consented in writing to an earlier date) unless,
prior to taking any such action (or the effective date in the case
of an omission), the Rights Agent shall have received written
instruction in response to such application specifying the action
to be taken or omitted.
(h) The Rights Agent and any shareholder, director,
officer or employee of the Rights Agent may buy, sell or deal in
any of the Rights or other securities of the Corporation or become
pecuniarily interested in any transaction in which the Corporation
may be interested, or contract with or lend money to the
Corporation or otherwise act as fully and freely as though it were
not Rights Agent under this Agreement. Nothing herein shall
preclude the Rights Agent from acting in any other capacity for the
Corporation or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder
either itself or by or through its attorneys or agents, and the
Rights Agent shall not be answerable or accountable for any act,
default, neglect or misconduct of any such attorneys or agents or
for any loss to the Corporation resulting from any such act,
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 it believes in good
faith that repayment of such funds or adequate indemnification
against such risk or liability is not reasonably assured to it.
(k) If, with respect to any Rights Certificate
surrendered to the Rights Agent for exercise or transfer, the
certificate attached to the form of assignment or form of election
to purchase, as the case may be, has not been completed, the Rights
Agent shall not take any further action with respect to such
requested exercise of transfer without first consulting with the
Corporation.
Section 21. Change of Rights Agent. The Rights Agent
or any successor Rights Agent may resign and be discharged from its
duties under this Agreement upon thirty (30) days' notice in
writing mailed to the Corporation and to the transfer agent of the
Common Shares by registered or certified mail, and, subsequent to
the Distribution Date, to the holders of the Right Certificates by
first-class mail. The Corporation may remove the Rights Agent or
any successor Rights Agent upon sixty (60) days' notice in writing,
mailed to the Rights Agent or any successor Rights Agent, as the
case may be, and to the transfer agent of the Common Shares by
registered or certified mail, and, subsequent to the Distribution
Date, to holders of the Right Certificates by first-class mail. If
the Rights Agent shall resign or be removed or shall otherwise
become incapable of acting, the Corporation shall appoint a
successor to the Rights Agent. If the Corporation shall fail to
make such appointment within a period of thirty (30) days after
giving notice of such removal or after it has been notified in
writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the holder of a Right Certificate
(who shall, with such notice, submit his Right Certificate for
inspection by the Corporation), then the registered holder of any
Right Certificate may apply to any court of competent jurisdiction
for the appointment of a new Rights Agent. Any successor Rights
Agent, whether appointed by the Corporation or by such a court,
shall be a corporation organized and doing business under the laws
of the United States or of the State of New York (or of any other
state of the United States so long as such corporation is
authorized to do business as a banking institution in the State of
New York), in good standing, having an office in the State of New
York, which is authorized under such laws to exercise corporate
trust or stock transfer powers and is subject to supervision or
examination by federal or state authority and which has at the time
of its appointment as Rights Agent a combined capital and surplus
of at least $50,000,000. After appointment, the successor Rights
Agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Rights Agent
without further act or deed; but the predecessor Rights Agent shall
deliver and transfer to the successor Rights Agent any property at
the time held by it hereunder, and execute and deliver any further
assurance, conveyance, act or deed necessary for the purpose. Not
later than the effective date of any such appointment the
Corporation shall file notice thereof in writing with the
predecessor Rights Agent and the transfer agent of the Common
Shares, and, subsequent to the Distribution Date, mail a notice
thereof in writing to the registered holders of the Right
Certificates. Failure to give any notice provided for in this
Section 21, however, or any defect therein, shall not affect the
legality or validity of the resignation or removal of the successor
Rights Agent or the appointment of the Rights Agent, as the case
may be.
Section 22. Issuance of New Right Certificates.
Notwithstanding any of the provisions of this Agreement or of the
Rights to the contrary, the Corporation may, at its option, issue
new Right Certificates evidencing Rights in such form as may be
approved by its Board of Directors of the Corporation to reflect
any adjustment or change in the Purchase Price and the number or
kind or class of shares or other securities or property purchasable
upon exercise of the Rights made in accordance with the provisions
of this Agreement.
In addition, in connection with the issuance or sale of
Common Shares following the Distribution Date and prior to the
earlier of the Redemption Date and the Final Expiration Date, the
Corporation (a) shall with respect to Common Shares so issued or
sold pursuant to the exercise of stock options or under any
employee plan or arrangement, or upon the exercise, conversion or
exchange of securities, notes or debentures issued by the
Corporation, and (b) may, in any other case, if deemed necessary or
appropriate by the Board of Directors of the Corporation, issue
Right Certificates representing the appropriate number of Rights in
connection with such issuance of sale, provided, however, that (i)
the Corporation shall not be obligated to issue any such Right
Certificates if, and to the extent that, the Corporation shall be
advised by counsel that such issuance would create a significant
risk of material adverse tax consequences to the Corporation or the
Person to whom such Right Certificate would be issued, and (ii) no
Right Certificate shall be issued if, and to the extent that,
appropriate adjustment shall otherwise have been made in lieu of
the issuance thereof.
Section 23. Redemption and Termination. (a) Subject
to Section 23(b), the Board of Directors of the Corporation may, at
its option, redeem all but not less than all the then outstanding
Rights at a redemption price of $0.01 per Right, as such amount may
be appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof
(such redemption price being hereinafter referred to as the
"Redemption Price"), at any time prior to the earlier of (x) the
time that any Person becomes an Acquiring Person, or (y) the Final
Expiration Date. The Corporation may, at its option, pay the
Redemption Price either in Common Shares (based on the "current per
share market price," as defined in Section 11(d) hereof, of the
Common Shares at the time of redemption) or cash; provided that if
the Corporation elects to pay the Redemption Price in Common
Shares, the Corporation shall not be required to issue any
fractional Common Shares and the number of Common Shares issuable
to each holder of Rights shall be rounded down to the next whole
share. The redemption of the Rights by the Board of Directors may
be made effective at such time, on such basis and with such
conditions as the Board of Directors in its sole discretion may
establish.
(b) The Board of Directors of the Corporation may only
redeem Rights pursuant to Section 23(a) hereof if (i) a majority of
the Disinterested Directors, and (ii) a majority of all of the
directors of the Corporation authorize such redemption.
Notwithstanding anything in this Agreement to the contrary, the
Rights may not be redeemed pursuant to this Section 23 unless there
is at least one member of the Board of Directors of the Corporation
that is a Disinterested Director at the time of such redemption.
(c) Immediately upon the action of the Board of
Directors of the Company ordering the redemption of the Rights
pursuant to paragraph (a) of this Section 23, and without any
further action and without any notice, the right to exercise the
Rights will terminate and the only right thereafter of the holders
of Rights shall be to receive the Redemption Price for each Right
so held. The Corporation shall promptly give notice of any such
redemption to the Rights Agent and the holders of Rights in the
manner set forth in Section 26, provided, however, that the failure
to give, or any defect in, any such notice shall not affect the
validity of such redemption. Any notice which is mailed in the
manner herein provided shall be deemed given, whether or not the
holder receives the notice. Each such notice of redemption will
state the method by which the payment of the Redemption Price will
be made. Neither the Corporation nor any of its Affiliates or
Associates may redeem, acquire or purchase for value any Rights at
any time in any manner other than that specifically set forth in
this Section 23 and other than in connection with the purchase of
Common Shares prior to the Distribution Date.
Section 24. Exchange. (a) Subject to Section 24(d),
the Board of Directors of the Corporation may, at its option, at
any time after the time that any Person becomes an Acquiring
Person, exchange all or part of the then outstanding and
exercisable Rights (which shall not include Rights that have become
void pursuant to the provisions of Section 7(e) and Section
11(a)(ii) hereof) for Common Shares of the Corporation at an
exchange ratio of one Common Share per Right, appropriately
adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such exchange ratio
being hereinafter referred to as the "Exchange Ratio").
Notwithstanding the foregoing, the Board of Directors of the
Corporation shall not be empowered to effect such exchange at any
time after any Person (other than the Corporation, any Subsidiary
of the Corporation, any employee benefit plan of the Corporation or
any such Subsidiary, any entity holding Common Shares for or
pursuant to the terms of any such plan or any trustee,
administrator or fiduciary of such a plan), together with all
Affiliates and Associates of such Person, becomes the Beneficial
Owner of 50% or more of the Common Shares then outstanding.
(b) Immediately upon the action of the Board of
Directors of the Corporation ordering the exchange of any Rights
pursuant to subsection (a) of this Section 24 and without any
further action and without any notice, the right to exercise such
rights shall terminate and the only right thereafter of a holder of
such Rights shall be to receive that number of Common Shares equal
to the number of such rights held by such holder multiplied by the
Exchange Ratio. The Corporation shall promptly give public notice
of any such exchange; provided, however, that the failure to give,
or any defect in, such notice shall not affect the validity of such
exchange. The Corporation promptly shall mail a notice of any such
exchange to all of the holders of such Rights at their last
addresses as they appear upon the registry books of the Rights
Agent. Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives the
notice. Each such notice of exchange will state the method by
which the exchange of the Common Shares for Rights will be effected
and, in the event of any partial exchange, the number of Rights
which will be exchanged. Any partial exchange shall be effected
pro rata based on the number of Rights (other than Rights which
have become void pursuant to the provisions of Section 7(e)) held
by each holder of Rights.
(c) In the event that there shall not be sufficient
Common Shares issued but not outstanding or authorized but unissued
to permit any exchange of Rights as contemplated in accordance with
this Section 24, the Corporation shall take all such action as may
be necessary to authorize additional Common Shares for issuance
upon exchange of the Rights.
(d) The Board of Directors may only exchange Rights
pursuant to Section 24(a) hereof if (i) a majority of the
Disinterested Directors, and (ii) a majority of all of the
directors of the Corporation authorize such exchange.
Notwithstanding anything in this Agreement to the contrary, the
Rights may not be exchanged pursuant to this Section 24 unless
there is at least one member of the Board of Directors of the
Corporation that is a Disinterested Director at the time of such
exchange.
(e) In any exchange pursuant to this Section 24, the
Corporation, at its option, may substitute common stock equivalents
(as defined in Section 11(a)(iii)) for shares of Common Stock
exchangeable for Rights, at the initial rate of one common stock
equivalent for each share of Common Stock, as appropriately
adjusted to reflect adjustments in dividend liquidation and voting
rights of common stock equivalents pursuant to the terms thereof,
so that each common stock equivalent delivered in lieu of each
share of Common Stock shall have essentially the same dividend,
liquidation and voting rights as one share of Common Stock.
Section 25. Notice of Certain Events. (a) In case
the Corporation shall propose, at any time after the Distribution
Date, (i) to pay any dividend payable in stock of any class to the
holders of its Common Shares or to make any other distribution to
the holders of its Common Shares (other than a regular quarterly
cash dividend), (ii) to offer to the holders of its Common Shares
rights or warrants to subscribe for or to purchase any additional
Common Shares or shares of stock of any class or any other
securities, rights or options, (iii) to effect any reclassification
of its Common Shares (other than a reclassification involving only
the subdivision of outstanding Common Shares), (iv) to effect any
consolidation or merger into or with any other Person (other than
a Subsidiary of the Corporation in a transaction which does not
violate Section 11(o) hereof), or to effect any sale or other
transfer (or to permit one or more of its Subsidiaries to effect
any sale or other transfer) in one or more transactions, of 50% or
more of the assets or earning power of the Corporation and its
Subsidiaries (taken as a whole) to any other Person or Persons
(other than the Corporation and/or any of its Subsidiaries in one
or more transactions each of which does not violate Section 11(o)
hereof), or (v) to effect the liquidation, dissolution or winding
up of the Corporation, then, in each such case, the Corporation
shall give to each holder of the Right Certificate, in accordance
with Section 26 hereof, a notice of such proposed action to the
extent feasible and file a certificate with the Rights Agent to
that effect, which shall specify the record date for the purposes
of such stock dividend, or distribution of rights or warrants, or
the date on which such reclassification, consolidation, merger,
sale, transfer, liquidation, dissolution or winding up is to take
place and the date of participation therein by the holders of the
Common Shares, if any such date is to be fixed, and such notice
shall be so given in the case of any action covered by clause (i)
or (ii) above at least twenty (20) days prior to the record date
for determining holders of the Common Shares for purposes of such
action, and in the case of any such other action, at least twenty
(20) days prior to the date of the taking of such proposed action
or the date of participation therein by the holders of the Common
Shares, whichever shall be the earlier.
(b) Notwithstanding anything in this Agreement to the
contrary, prior to the Distribution Date a filing by the
Corporation with the Securities and Exchange Commission shall
constitute sufficient notice to the holders of the securities of
the Corporation, including the Rights, for purposes of this
Agreement and no other notice need be given to such holders.
(c) If a Triggering Event shall occur, then (i) the
Corporation shall as soon as practicable thereafter give to each
holder of a Right Certificate, in accordance with Section 26
hereof, a notice of the occurrence of such event, which notice
shall describe such event and the consequences of such event to
holders of Rights under Section 11(a)(ii) or Section 13 hereof, as
the case may be, and (ii) all references in the preceding paragraph
(a) to Common Shares shall be deemed thereafter to refer also, if
appropriate, to capital stock equivalents, as provided for in
Section 11(a)(iii).
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 Right Certificate to or on the Corporation shall be
sufficiently given or made if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing with
the Rights Agent) as follows:
Price Communication Corporation
45 Rockefeller Plaza
New York, New York 10020
Attention: President
Subject to the provisions of Section 21 hereof, any
notice or demand authorized by this Agreement to be given or made
by the Corporation or by the holder of any Right Certificate to or
on the Rights Agent shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another address
is filed in writing with the Corporation) as follows:
Harris Trust Company of New York
77 Water Street, 4th Floor
New York, New York 10005
Attention: Brian R. Sahlin
Notices or demands authorized by this Agreement to be given or made
by the Corporation or the Rights Agent to the holder of any Right
Certificate or, if prior to the Distribution Date, to the holder of
certificates representing Common Shares, shall be sufficiently
given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on
the registry books of the Corporation.
Section 066 Supplements and Amendments. (a) Prior to
the Distribution Date, subject to Section 27(b) hereof, the
Corporation and the Rights Agent shall, if the Corporation so
directs, supplement or amend any provision of this Agreement
without the approval of any holders of certificates representing
Common Shares. From and after the Distribution Date, subject to
Section 27(b) hereof, the Corporation and the Rights Agent shall,
if the Corporation so directs, supplement or amend this Agreement
without the approval of any holders of Right Certificates in order
(i) to cure any ambiguity, (ii) to correct or supplement any
provision contained herein which may be defective or inconsistent
with any other provisions herein, (iii) to shorten or lengthen any
time period hereunder or (iv) to change or supplement the
provisions hereunder in any manner which the Corporation may deem
necessary or desirable and which shall not adversely effect the
interests of the holders of Right 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 Corporation 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 18 or Section 20 of this Agreement.
Prior to the Distribution date, the interests of the holders of
Rights shall be deemed coincident with the interests of the holders
of Common Shares.
(b) The Corporation shall not supplement or amend
any provision of this Agreement unless (i) a majority of the
Disinterested Directors and (ii) a majority of all of the directors
of the Corporation authorizes such supplement or amendment.
Notwithstanding anything in this Agreement to the contrary, this
Agreement may not be supplemented or amended pursuant to this
Section 27 unless there is at least one member of the Board of
Directors of the Corporation that is a Disinterested Director at
the time of such supplement or amendment.
Section 28. Determination and Actions by the Board of
Directors of the Corporation, etc. Subject to Sections 23(b),
24(d) and 27(b) hereof, the Board of Directors of the Corporation
shall the exclusive power and authority to administer this
Agreement and to exercise all rights and powers specifically
granted to the Board, or the Corporation, or as may be necessary or
advisable in the administration of this Agreement, including,
without limitation, the right and power to (i) interpret the
provisions of this Agreement, and (ii) make all determinations
deemed necessary or advisable for the administration of this
Agreement (including, without limitation, a determination to redeem
or not redeem the Rights or to amend the Agreement and whether any
proposed amendment adversely affects the interests of the holders
of Right Certificates). For all purposes of this Agreement, any
calculation of the number of Common Shares or other securities
outstanding at any particular time, including for purposes of
determining the particular percentage of such outstanding Common
Shares or any other securities of which any Person is the
Beneficial Owner, shall be made in accordance with the last
sentence of Rule 13d-3(d)(1)(i) of the General Rules and
Regulations under the Exchange Act as in effect on the date of this
Agreement. All such actions, calculations, interpretations and
determinations (including, for purposes of clause (y) below, all
omissions with respect to the foregoing) which are done or made by
the Board in good faith, shall (x) be final, conclusive and binding
on the Corporation, the Rights Agent, the holders of the Right
Certificates and all other parties, and (y) not subject the Board
to any liability to the holders of the Right Certificates.
Section 29. Successors. All the covenants and
provisions of this Agreement by or for the benefit of the
Corporation or the Rights Agents 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 Corporation, the Rights Agent and the
registered holders of the Right Certificates (and, prior to the
Distribution Date, the Common Shares) any legal or equitable right,
remedy or claim under this Agreement; but this Agreement shall be
for the sole and exclusive benefit of the Corporation, the Rights
Agent and the registered holders of the Right Certificates (and,
prior to the Distribution Date, the Common Shares).
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 Right Certificate issued hereunder shall be deemed to be
a contract made under the laws of the State of New York and for all
purposes shall be governed by and construed in accordance with the
laws of such State applicable to contracts to be made and performed
entirely within such State.
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 attested, all as of the date and
year first above written.
PRICE COMMUNICATIONS CORPORATION
By: ___________________________
Name:
Title:
HARRIS TRUST COMPANY OF NEW YORK
By: ___________________________
Name:
Title:
<PAGE>
TABLE OF CONTENTS
Page
Section 1. Certain Definitions. . . . . . . . . . . . . . . . 1
Section 2. Appointment of Rights Agent. . . . . . . . . . . . 5
Section 3. Issue of Right Certificates. . . . . . . . . . . . 5
Section 4. Form of Right Certificate. . . . . . . . . . . . . 7
Section 5. Countersignature and Registration. . . . . . . . . 7
Section 6. Transfer, Split-up, Combination and Exchange of
Right Certificates; Mutilated, Destroyed, Lost
or Stolen Right Certificate. . . . . . . . . . . . 8
Section 7. Exercise of Rights; Purchase Price; Expiration
Date of Rights . . . . . . . . . . . . . . . . . . 9
Section 8. Cancellation and Destruction of Right
Certificates . . . . . . . . . . . . . . . . . . . 11
Section 9. Reservation and Availability of Common Shares. . . 11
Section 10. Common Shares Record Date . . . . . . . . . . . . 13
Section 11. Adjustment of Purchase Price, Number and Kind
of Shares or Number of Rights . . . . . . . . . . 13
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares. . . . . . . . . . . . . . . . . 20
Section 13. Consolidation, Merger or Sale or Transfer of
Assets or Earning Power . . . . . . . . . . . . . 21
Section 14. Fractional Rights and Fractional Shares . . . . . 23
Section 15. Rights of Action. . . . . . . . . . . . . . . . . 24
Section 16. Agreement of Right Holders. . . . . . . . . . . . 24
Section 17. Right Certificate Holder Not Deemed a
Shareholder . . . . . . . . . . . . . . . . . . . 25
Section 18. Concerning the Rights Agent . . . . . . . . . . . 26
Section 19. Merger or Consolidation or Change of Name of
Rights Agent. . . . . . . . . . . . . . . . . . . 26
Section 20. Duties of Rights Agent. . . . . . . . . . . . . . 27
Section 21. Change of Rights Agent. . . . . . . . . . . . . . 29
Section 22. Issuance of New Right Certificates. . . . . . . . 30
Section 23. Redemption and Termination. . . . . . . . . . . . 31
Section 24. Exchange. . . . . . . . . . . . . . . . . . . . . 32
Section 25. Notice of Certain Events. . . . . . . . . . . . . 33
Section 26. Notices . . . . . . . . . . . . . . . . . . . . . 34
Section 27. Supplements and Amendments. . . . . . . . . . . . 35
Section 28. Determination and Actions by the Board of
Directors of the Corporation, etc.. . . . . . . . 36
Section 29. Successors. . . . . . . . . . . . . . . . . . . . 36
Section 30. Benefits of this Agreement. . . . . . . . . . . . 36
Section 31. Severability. . . . . . . . . . . . . . . . . . . 37
Section 32. Governing Law . . . . . . . . . . . . . . . . . . 37
Section 33. Counterparts. . . . . . . . . . . . . . . . . . . 37
Section 34. Descriptive Headings. . . . . . . . . . . . . . . 37
<PAGE>
Defined Term Cross Reference Sheet
Acquiring Person . . . . . . . . . . . . . . . Section 1(a)
Act . . . . . . . . . . . . . . . . . . . . . Section 1(b)
Adjustment Shares . . . . . . . . . . . . . . Section 11(a)(ii)
Adjusted Number of Shares . . . . . . . . . . Section 11(a)(iii)
Adjusted Purchase Price. . . . . . . . . . . . Section 11(a)(iii)
Affiliate . . . . . . . . . . . . . . . . . . Section 1(c)
Agreement . . . . . . . . . . . . . . . . . . Preface
Associate . . . . . . . . . . . . . . . . . . Section 1(c)
Beneficial Owner . . . . . . . . . . . . . . . Section 1(d)
beneficially own . . . . . . . . . . . . . . . Section 1(d)
Business Day . . . . . . . . . . . . . . . . . Section 1(e)
capital stock equivalent . . . . . . . . . . . Section 11(a)(iii)
Close of business . . . . . . . . . . . . . . Section 1(f)
Common Shares . . . . . . . . . . . . . . . . Section 1(g)
Corporation . . . . . . . . . . . . . . . . . Preface
current per share market price . . . . . . . . Section 11(d)
Disinterested Director . . . . . . . . . . . . Section 1(h)
Distribution Date . . . . . . . . . . . . . . Section 1(i)
equivalent common shares . . . . . . . . . . . Section 11(b)
Exchange Act . . . . . . . . . . . . . . . . . Section 1(j)
Exchange Ratio . . . . . . . . . . . . . . . . Section 24(a)
Final Expiration Date . . . . . . . . . . . . Section 7(a)
Grandfathered Shareholder . . . . . . . . . . Section 1(l)
Laifer Party . . . . . . . . . . . . . . . . . Section 1(l)
Permitted Transfer . . . . . . . . . . . . . . Section 1(m)
Permitted Transferee . . . . . . . . . . . . . Section 1(n)
Person . . . . . . . . . . . . . . . . . . . . Section 1(o)
Principal Party . . . . . . . . . . . . . . . Section 13(b)
Proration Factor . . . . . . . . . . . . . . . Section 11(a)(iii)
Purchase Price . . . . . . . . . . . . . . . . Section 4(a)
Record Date . . . . . . . . . . . . . . . . . Preface
Redemption Date . . . . . . . . . . . . . . . Section 7(a)
Redemption Price . . . . . . . . . . . . . . . Section 23(a)
Right . . . . . . . . . . . . . . . . . . . . Preface
Right Certificate . . . . . . . . . . . . . . Section 3(a)
Rights Agent . . . . . . . . . . . . . . . . . Preface
Rights Agreement . . . . . . . . . . . . . . . Section 3(c)
Section 11(a)(ii) Event . . . . . . . . . . . Section 1(q)
Section 13 Event . . . . . . . . . . . . . . . Section 1(r)
Security . . . . . . . . . . . . . . . . . . . Section 11(d)
Shares Acquisition Date . . . . . . . . . . . Section 1(s)
Subsidiary . . . . . . . . . . . . . . . . . . Section 1(t)
then outstanding . . . . . . . . . . . . . . . Section 1(d)
Trading Day . . . . . . . . . . . . . . . . . Section 11(d)
Transfer . . . . . . . . . . . . . . . . . . . Section 1(u)
Triggering Event . . . . . . . . . . . . . . . Section 1(v)
voting securities . . . . . . . . . . . . . . Section 13(a)
<PAGE>
Exhibit A
[Form of Right Certificate]
No. R- _____________Rights
NOT EXERCISABLE AFTER THE EARLIER OF OCTOBER 17, 2004
AND THE DATE ON WHICH THE RIGHTS EVIDENCED HEREBY ARE
REDEEMED OR EXCHANGED BY THE COMPANY AS SET FORTH IN
THE RIGHTS AGREEMENT. AS SET FORTH IN THE RIGHTS
AGREEMENT, RIGHTS ISSUED TO, OR HELD BY, ANY PERSON WHO
IS, WAS OR BECOMES AN ACQUIRING PERSON OR AN AFFILIATE
OR ASSOCIATE THEREOF (AS SUCH TERMS ARE DEFINED IN THE
RIGHTS AGREEMENT), WHETHER CURRENTLY HELD BY OR ON
BEHALF OF SUCH PERSON OR BY ANY SUBSEQUENT HOLDER, MAY
BE NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS
RIGHT CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A
PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN
AFFILIATE OR AN ASSOCIATE OF AN ACQUIRING PERSON (AS
SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). THIS
RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY
BE OR MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES
SPECIFIED IN SECTION 7(e) OF THE RIGHTS AGREEMENT.]
RIGHT CERTIFICATE
PRICE COMMUNICATIONS CORPORATION
This Right Certificate certifies that
, or registered assigns, is the registered holder of
the number of Rights set forth above, each of which entitles
the holder (upon the terms and subject to the conditions set
forth in the Rights Agreement dated as of October 6, 1994
(the "Rights Agreement") between Price Communications
Corporation, a New York corporation (the "Company"), and
Harris Trust Company of New York (the "Rights Agent")) to
purchase from the Company, at any time after the
Distribution Date and prior to the Expiration Date, one
fully paid, nonassessable share of the Common Stock, par
value $0.01 (the "Common Shares") of the Company at a
purchase price of $22.50 per share (the "Purchase Price"),
payable in lawful money of the United States of America,
upon surrender of this Right Certificate, with the form of
election to purchase and related certificate duly executed,
and payment of the Purchase Price at an office of the Rights
Agent designated for such purpose.
Terms used herein and not otherwise defined herein
have the meanings assigned to them in the Rights Agreement.
The number of Rights evidenced by this Right
Certificate (and the number and kind of shares issuable upon
exercise of each Right) and the Purchase Price set forth
above are as of October 6, 1994, and may have been or in the
future be adjusted as a result of the occurrence of certain
events, as more fully provided in the Rights Agreement.
Upon the occurrence of a Section 11(a)(ii) Event,
if the Rights evidence by this Right Certificate are
beneficially owned by (a) an Acquiring Person or an
Associate or Affiliate of an Acquiring Person, (b) a
transferee of a Acquiring Person (or any such Associate or
Affiliate thereof) who becomes a transferee after the
Acquiring Person becomes such, or (c) under certain
circumstances specified in the Rights Agreement, a
transferee of an Acquiring Person (or any such Associate or
Affiliate thereof) who becomes a transferee prior to or
concurrently with the Acquiring Person becoming such, such
Rights shall become null and void without any further
action, and no holder hereof shall have any rights
whatsoever with respect to such Rights, whether under any
provision of the Rights Agreement or otherwise.
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 Right
Certificates, which limitations of rights include the
temporary suspension of the exercisability of such Rights
under the specific circumstances set forth in the Rights
Agreement.
Upon surrender at the principal office or offices
of the Rights Agent designated for such purpose and subject
to the terms and conditions set forth in the Rights
Agreement, any Rights Certificate or Certificates may be
transferred or exchanged for another Rights Certificate or
Certificates evidencing a like number of Rights as the
Rights Certificate or Certificates surrendered.
Subject to the provisions of the Rights Agreement,
the Board of Directors of the Company may, at its option,
(a) at any time prior to the earlier of (i)
the time that any Person becomes an Acquiring
Person or (ii) the Final Expiration Date, redeem
all but not less than all the then outstanding
Rights at a redemption price of $.01 per Right; or
(b) at any time after the time that any
Person becomes an Acquiring Person (but before
such Person, together with all Affiliates and
Associates of such Person, becomes the Beneficial
Owner of 50% or more of the Common Shares then
outstanding), exchange all or part of the then
outstanding Rights (other than Rights held by the
Acquiring Person and certain related Persons) for
Common Shares at an exchange ratio of one Common
Share per Right.
No fractional Common Shares will be issued upon
the exercise of any Right or Rights evidenced hereby, but in
lieu thereof a cash payment will be made, as provided in the
Rights Agreement. If this Right Certificate shall be
exercised in part, the holder shall be entitled to receive
upon surrender hereof another Right Certificate or
Certificates for the number of whole Rights not exercised,
or the Rights Agent shall place an appropriate notation on
this Right Certificate with respect to those Rights
exercised.
No holder of this Right Certificate shall be
entitled to vote, receive dividends or be deemed for any
purpose the holder of the shares of capital stock 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 shareholder of the Company or any right to
vote for the election of directors or upon any matter
submitted to shareholders at any meeting thereof, or to give
or withhold consent to any corporate action, or, to receive
notice of meetings or other actions affecting shareholders
(except as provided in the Rights Agreement), or to receive
dividends or subscription rights, or otherwise, until the
Right or Rights evidenced by this Right Certificate shall
have been exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or
obligatory for any purpose until it shall have been
countersigned by the Rights Agent.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal by
its authorized officers.
Dated as of , 19
PRICE COMMUNICATIONS CORPORATION
By
Title:
[SEAL]
Attest:
Secretary
Countersigned:
HARRIS TRUST COMPANY OF NEW YORK,
as Rights Agent
By
Authorized Signature
<PAGE>
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed if the registered holder
desires to transfer the Right Certificate.)
FOR VALUE RECEIVED
hereby sells, assigns and transfers unto
(Please print name and address of transferee)
this Right Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and
appoint Attorney, to transfer the
within Right Certificate on the books of the within-named
Company, with full power of substitution.
Dated: , 19
Signature
Signature Guaranteed:
<PAGE>
Certificate
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) the Rights evidenced by this Right
Certificate ___ are ___ are not being assigned by or on
behalf of a Person who is or was an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person (as such
terms are defined in the Rights Agreement);
(2) after due inquiry and to the best knowledge
of the undersigned, it __ did __ did not acquire the Rights
evidenced by this Right Certificate from any Person who is,
was or became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person;
(3) the action requested by the undersigned is
not prohibited by the provisions of the Rights Agreement,
including, without limitation, the provisions relating to
the (i) transfer, split-up, combination and exchange of
rights which are null and void or (ii) exercise by an
Acquiring Person or an Affiliate or Associate of an
Acquiring Person of any Right which by its terms is null and
void.
Dated: , 19
Signature
The signatures to the foregoing Assignment and
Certificate must correspond to the name as written upon the
face of this Right Certificate in every particular, without
alteration or enlargement or any change whatsoever.
<PAGE>
FORM OF ELECTION TO PURCHASE
(To be executed if the registered holder desires to exercise
Rights represented by the Right Certificate.)
To: PRICE COMMUNICATIONS CORPORATION
The undersigned hereby irrevocably elects to
exercise Rights represented by this Right
Certificate to purchase shares of Common Stock issuable upon
the exercise of the Rights (or such other securities of the
Company or of any other person which may be issuable upon
the exercise of the Rights) and requests that certificates
for such securities be issued in the name of and delivered
to:
Please insert social security
or other identifying number
(Please print name and address)
If such number of Rights specified above shall not
be all the Rights evidenced by this Right Certificate, the
Rights Agent shall place an appropriate notation on this
Right Certificate with respect to those Rights exercised or
a new Right Certificate for the balance of such Rights shall
be registered in the name of and delivered to:
Please insert social security
or other identifying number
(Please print name and address)
Dated: , 19
Signature
Signature Guaranteed:
<PAGE>
Certificate
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) the Rights evidenced by this Right
Certificate are are not being exercised by or on
behalf of a Person who is or was an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person (as such
terms are defined in the Rights Agreement);
(2) after due inquiry and to the best knowledge
of the undersigned, it did did not acquire the Rights
evidenced by this Right Certificate from any Person who is,
was or became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person;
(3) the exercise of the Rights evidenced by this
Right Certificate is not prohibited by the terms of the
Rights Agreement, including, without limitation, the
provisions relating to the exercise by an Acquiring Person
or an Affiliate or Associate of an Acquiring Person of any
Right which by its terms is null and void.
Dated: , 19
Signature
The signature to the foregoing Election to
Purchase and Certificate must correspond to the name as
written upon the face of this Right Certificate in every
particular, without alteration or enlargement or any change
whatsoever.
