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
Date of Report (Date of earliest event reported) October 15, 1996
First Union Corporation
(Exact name of registrant as specified in its charter)
North Carolina 1-10000 56-0898180
(State of other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
One First Union Center
Charlotte, North Carolina 28288-0013
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (704)374-6565
(Former name or former address, if changed since last report.)
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Item 5. Other Event
Attached hereto as Exhibit (4) is a copy of First Union Corporation's
Amended and Restated Shareholder Protection Rights Agreement, dated as of
December 18, 1990, and as amended and restated as of October 15, 1996
(the "Plan"). The Plan incorporates in one document the previous amendments
to First Union Corporation's Shareholder Protection Rights Agreement, dated
as of December 18, 1990, as amended, and the amendments adopted on October
15, 1996. The amendments adopted on October 15, 1996, include (i) an
increase in the exercise price of the rights issued under the Plan from
$110.00 to $210.00, and (ii) the ability of the Board of Directors of First
Union Corporation to terminate the Plan, without any redemption payment,
at any time before the rights "separate" from First Union Corporation's
common stock.
Item 7. Financial Statements and Exhibits.
Exhibit No. Description
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(4) Amended and Restated Shareholder Protection
Rights Agreement, dated as of December 18,
1990, and as amended and restated as of
October 15, 1996.
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.
FIRST UNION CORPORATION
Date: October 16, 1996 By: /s/ Kent S. Hathaway
--------------------
Name: Kent S. Hathaway
Title: Senior Vice President
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EXHIBIT INDEX
Exhibit No. Description
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(4) Amended and Restated Shareholder Protection
Rights Agreement, dated as of December 18,
1990, and as amended and restated as of
October 15, 1996.
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AMENDMENT AND RESTATEMENT, dated as of October 15, 1996 (this "Amendment"),
of the SHAREHOLDER PROTECTION RIGHTS AGREEMENT, dated as of December 18, 1990
(as heretofore amended, the "Rights Agreement"), between First Union
Corporation, a North Carolina corporation (the "Company"), and First Union
National Bank of North Carolina, a national banking association, as Rights
Agent (the "Rights Agent").
W I T N E S S E T H:
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WHEREAS, on December 18, 1990, the Board of Directors of the Company (i)
authorized and declared a dividend of one Right with respect to each share of
Common Stock held of record as of the Record Time and (ii) authorized the
issuance of one Right with respect to each share of Common Stock issued after
the Record Time and prior to any Separation Time, each Right representing the
right to purchase securities of the Company pursuant to the terms and
conditions of the Rights Agreement; and
WHEREAS, the Rights remain issued and outstanding and the Rights Agreement
remains in effect with respect thereto;
WHEREAS, no Separation Time or Stock Acquisition Date has occurred; and
WHEREAS, the Board of Directors of the Company has approved, in accordance
with Section 5.4 of the Rights Agreement, this Amendment and has directed the
appropriate officers of the Company to take all appropriate steps to execute
and deliver this Amendment;
NOW, THEREFORE, in consideration of the premises and the respective agree-
ments set forth herein, the parties hereby agree as follows:
(1) Amendment and Restatement of the Rights Agreement. The Rights
Agreement is hereby amended and restated to read in its entirety as set forth
in the Annex to this Amendment.
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(2) Effectiveness. This Amendment shall be deemed to be in force and
effective immediately upon the close of business on the date hereof. Except as
amended and restated hereby, the Rights Agreement shall remain in full force
and effect and shall be otherwise unaffected hereby.
(3) Defined Terms. Unless otherwise defined herein, all defined terms
used herein shall have the same meanings given to them in the Rights Agreement.
(4) Governing Law. This Amendment shall be deemed to be a contract made
under the laws of the State of North Carolina 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.
(5) Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall for all purposes be deemed an original and all
of which shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
FIRST UNION CORPORATION
By: /s/Marion A. Cowell, Jr.
Name: Marion A. Cowell, Jr.
Title: Executive Vice President
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA
By: /s/Keith D. Lembo
Name: Keith D. Lembo
Title: Senior Vice President
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_______________________________________________________________________________
AMENDED AND RESTATED
SHAREHOLDER PROTECTION RIGHTS AGREEMENT
dated as of
December 18, 1990
between
FIRST UNION CORPORATION
and
FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
as Rights Agent
Amended and Restated as of October 15, 1996
________________________________________________________________________________
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SHAREHOLDER PROTECTION RIGHTS AGREEMENT
Table of Contents
Page
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Article I
CERTAIN DEFINITIONS
Section 1.1 Certain Definitions .............................. 2
Article II
THE RIGHTS
Section 2.1 Summary of Rights ............................... 13
Section 2.2 Legend on Common Stock Certificates ............. 13
Section 2.3 Exercise of Rights;
Separation of Rights .......................... 14
Section 2.4 Adjustments to Exercise Price;
Number of Rights .............................. 18
Section 2.5 Date on Which Exercise is
Effective ..................................... 21
Section 2.6 Execution, Authentication, Delivery
and Dating of Rights Certificates ............. 21
Section 2.7 Registration, Registration of
Transfer and Exchange ......................... 22
Section 2.8 Mutilated, Destroyed, Lost and
Stolen Rights Certificates .................... 24
Section 2.9 Persons Deemed Owners ........................... 25
Section 2.10 Delivery and Cancellation of
Rights Certificates ........................... 26
Section 2.11 Agreement of Rights Holders ..................... 26
Article III
ADJUSTMENTS TO THE RIGHTS IN THE EVENT OF
CERTAIN TRANSACTIONS
Section 3.1 Flip-in ......................................... 27
Article IV
THE RIGHTS AGENT
Section 4.1 General ......................................... 32
Section 4.2 Merger or Consolidation or Change of
Name of Rights Agent .......................... 34
Section 4.3 Duties of Rights Agent .......................... 35
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Page
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Section 4.4 Change of Rights Agent ........................... 39
Article V
MISCELLANEOUS
Section 5.1 Redemption; Termination ......................... 41
Section 5.2 Expiration ...................................... 42
Section 5.3 Issuance of New Rights Certificates ............. 42
Section 5.4 Supplements and Amendments ...................... 43
Section 5.5 Fractional Shares ............................... 44
Section 5.6 Rights of Action ................................ 45
Section 5.7 Holder of Rights Not Deemed a
Shareholder ................................... 46
Section 5.8 Notice of Proposed Actions ...................... 46
Section 5.9 Notices ......................................... 47
Section 5.10 Suspension of Exercisability .................... 48
Section 5.11 Costs of Enforcement ............................ 48
Section 5.12 Successors ...................................... 49
Section 5.13 Benefits of this Agreement ...................... 49
Section 5.14 Descriptive Headings ............................ 49
Section 5.15 Governing Law ................................... 49
Section 5.16 Counterparts .................................... 49
Section 5.17 Severability .................................... 50
EXHIBITS
Exhibit A Form of Rights Certificate (Together with Form of Election to
Exercise)
Exhibit B Form of Articles of Amendment with respect to the Junior
Participating Class A Preferred Stock of First Union Corporation
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SHAREHOLDER PROTECTION RIGHTS AGREEMENT
AMENDED AND RESTATED SHAREHOLDER PROTECTION RIGHTS AGREEMENT (as the
same may from time to time be amended or supplemented, this "Agreement"), dated
as of December 18, 1990 and amended and restated as of October 15, 1996,
between First Union Corporation, a North Carolina corporation (the "Company"),
and First Union National Bank of North Carolina, a national banking association,
as Rights Agent (the "Rights Agent", which term shall include any successor
Rights Agent hereunder),
WHEREAS, the Board of Directors of the Company has (a) authorized and
declared a dividend of one right ("Right") in respect of each share of Common
Stock (as hereinafter defined) held of record as of the close of business on
December 28, 1990 (the "Record Time") and (b) authorized the issuance of one
Right in respect of each share of Common Stock issued after the Record Time and
prior to the Separation Time (as hereinafter defined) and, to the extent
provided in Section 5.3, each share of Common stock that shall become
outstanding after the Separation Time;
WHEREAS, subject to Sections 3.1, 5.1 and 5.1O, each Right entitles the
holder thereof, after the Separation Time, to purchase securities of the Company
pursuant to the terms and subject to the conditions set forth herein; and
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WHEREAS, the Company desires to appoint the Rights Agent to act on
behalf of the Company, and the Rights Agent is willing so to act, in connection
with the issuance, transfer, exchange and replacement of Rights Certificates (as
hereinafter defined), the exercise of Rights and other matters referred to
herein;
NOW, THEREFORE, in consideration of the premises and the respective
agreements set forth herein, the parties hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
1.1 CERTAIN DEFINITIONS. For purposes of this Agreement, the following
terms have the meanings indicated:
"Acquiring Person" shall mean either of the following:
(i) any Person that is a Beneficial Owner of 15% or more of the
outstanding shares of Common Stock; provided, however, that, for purposes of
this subparagraph (i), the term "Acquiring Person" shall not include (a) any
Person that shall become the Beneficial Owner of 15% or more of the outstanding
shares of Common Stock solely as a result of an acquisition by the Company of
shares of Common Stock, until such time thereafter as such Person shall become
the Beneficial Owner (other than by means of a stock dividend or stock split) of
any additional shares of Common Stock, (b)
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any Person that acquired Beneficial Ownership of shares of Common Stock without
any plan or intention to seek or affect control of the Company, if such Person,
upon notice by the Company, promptly enters into an irrevocable commitment
promptly to divest, and thereafter promptly divests (without exercising or
retaining any power, including voting, with respect to such shares), sufficient
shares of Common Stock (or securities convertible into, exchangeable into or
exercisable for Common Stock) so that such Person ceases to be the Beneficial
Owner of 15% or more of the outstanding shares of Common Stock or (c) any Person
that Beneficially Owns shares of Common Stock consisting solely of one or more
of (1) shares of Common Stock Beneficially Owned pursuant to the grant or
exercise of an option granted to such Person (an "Option Holder") by the Company
in connection with an agreement to merge with, or acquire, the Company entered
into prior to a Flip-in Date, (2) shares of Common Stock (or securities
convertible into, exchangeable into or exercisable for Common Stock),
Beneficially Owned by such Option Holder or its Affiliates or Associates at the
time of grant of such option, (3) shares of Common Stock (or securities
convertible into, exchangeable into or exercisable for Common Stock) acquired by
Affiliates or Associates of
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such Option Holder after the time of such grant which, in the aggregate, amount
to less than 1% of the outstanding shares of Common Stock and (4) shares of
Common Stock (or securities convertible into, exchangeable into or exercisable
for Common Stock) which are held by such Option Holder in trust accounts,
managed accounts and the like or otherwise held in a fiduciary capacity, that
are beneficially owned by third Persons who are not Affiliates or Associates of
such Option Holder or acting together with such Option Holder to hold such
shares, or which are held by such Person in respect of a debt previously
contracted; or
(ii) any Person that is determined by the Federal Reserve Board to
Control the Company; provided, however, that for purposes of this subparagraph
(ii) the term "Acquiring Person" shall not include (a) any Person as to which
the Federal Reserve Board's determination of Control would not have been made
but for such Person's violation of, or non-compliance with, a customary
agreement with, or commitment to, the Federal Reserve Board relating to Control
or the failure of such person to enter into such an agreement or commitment if
necessary to avoid or eliminate a determination of Control containing standard
Federal Reserve Board commitments similar to those in the Federal Reserve Board
order issued to North Fork
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Bancorporation on March 29, 1995 other than number 2 relating to employees,
number 10 relating to banking or non-banking transactions and number ll relating
to board representation (any such violation or noncompliance or failure, a
"Compliance Failure") so long as such person obtains a determination from the
Federal Reserve Board within 30 days of being so determined in Control that it
no longer Controls the Company (a "Non-Control Determination") (or within 60
days if the Board of Directors of the Company in its discretion determines to
grant an extension of up to an additional 30 days) or (b) any Person as to
which the Federal Reserve Board's determination of Control does not result from
a Compliance Failure, so long as such person obtains a Non-Control Determination
on or before the third anniversary of first being determined in such Control and
such Person has not failed to use its best efforts to take, or cause to be
taken, all actions and to do, or cause to be done, all things necessary or
appropriate to procure any action by or in respect of, or to make any filing
with, any governmental body, agency, official or authority required to permit
the Company or any of its affiliates, directly or indirectly, to acquire any
Person or the assets thereof (or to assume the liabilities thereof) or to permit
the Company or any affiliate thereof to engage in any
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legally permissible activity to the extent that the Company or such affiliate
shall have determined to do so as notified in writing by the Company to such
Person;
provided, however, that in no event shall the Company, any wholly-owned
Subsidiary of the Company and any employee stock ownership or other employee
benefit plan of the Company or a wholly-owned Subsidiary of the Company be
deemed an Acquiring Person.
"Affiliate" and "Associate" shall have the respective meanings ascribed
to such terms in Rule 12b-2 under the Securities Exchange Act of 1934, as such
Rule is in effect on the date of this Agreement.
A Person shall be deemed the "Beneficial Owner", and to have
"Beneficial Ownership" of, and to "Beneficially Own", any securities as to which
such Person or any of such Person's Affiliates or Associates is or may be deemed
the beneficial owner pursuant to Rule 13d-3 and 13d-5 under the Securities
Exchange Act of 1934, as such Rules are in effect on the date of this Agreement,
as well as any securities as to which such Person or any of such Person's
Affiliates or Associates has the right to become Beneficial Owner (whether such
right is exercisable immediately or after passage of time or the occurrence of
conditions) pursuant to any agreement, arrangement or understanding, or upon the
exercise of conversion rights, exchange rights, rights
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(other than the Rights), warrants or options, or otherwise; provided, however,
that a Person shall not be deemed the "Beneficial Owner", or to have "Beneficial
Ownership" of, or to "Beneficially Own", any security (i) solely because such
security has been tendered pursuant to a tender or exchange offer made by such
Person or any of such Person's Affiliates or Associates until such tendered
security is accepted for payment or exchange or (ii) solely because such Person
or any of such Person's Affiliates or Associates has or shares the power to vote
or direct the voting of such security pursuant to a revocable proxy given in
response to a public proxy or consent solicitation made to more than ten holders
of the Common Stock and pursuant to, and in accordance with, the applicable
rules and regulations under the Securities Exchange Act of 1934, except if such
power (or the arrangements relating thereto) is then reportable under Item 6 of
Schedule 13D under the Securities Exchange Act of 1934 (or any similar provision
of a comparable or successor report). Notwithstanding the foregoing, no officer
or director of the Company shall be deemed to Beneficially Own any securities of
any other Person by virtue of any actions such officer or director takes in such
capacity. For purposes of this Agreement, in determining the percentage of the
outstanding shares of Common Stock with respect to which a Person is the
Beneficial Owner, all shares as to which
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such Person is deemed the Beneficial owner shall be deemed outstanding.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which banking institutions in Charlotte, North Carolina are generally
authorized or obligated by law or executive order to close.
"Close of business" on any given date shall mean 5:00 p.m., Charlotte,
North Carolina time on such date (or, if such date is not a Business Day, 5:00
p.m., Charlotte, North Carolina time on the next succeeding Business Day).
"Common Stock" shall mean the shares of Common Stock, par value $3.33
1/3 per share, of the Company.
"Control" shall have the meaning ascribed to such term in the Bank
Holding Company Act of 1956, as amended.
"Exchange Time" shall mean the time at which the right to exercise the
Rights shall terminate pursuant to Section 3.1(c) hereof.
"Exercise Price" shall mean, as of any date, the price at which a
holder may purchase the securities issuable upon exercise of one whole Right.
Until adjustment thereof in accordance with the terms hereof, the Exercise Price
shall equal $210.00.
"Expiration Time" shall mean the earliest of (i) the Exchange Time,
(ii) the Redemption Time and (iii) the close of business on December 28, 2000.
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"Federal Reserve Board" shall mean the Board of Governors of the
Federal Reserve System (or any successor agency) and the staff thereof.
"Flip-in Date" shall mean the tenth Business Day after any Stock
Acquisition Date.
"Market Price" per share of any securities on any date shall mean the
average of the daily closing prices per share of such securities (determined as
described below) on each of the 90 consecutive Trading Days through and
including the Trading Day immediately preceding such date; provided, however,
that if an event of a type analogous to any of the events described in Section
2.4 hereof shall have caused the closing prices used to determine the Market
Price on any Trading Days during such period of 90 Trading Days not to be fully
comparable with the closing price on such date, each such closing price so used
shall be appropriately adjusted in order to make it fully comparable with the
closing price on such date. The closing price per share of any securities on any
date shall be the last reported sale price, regular way, or, in case no such
sale takes place or is quoted on such date, the average of the closing bid and
asked prices, regular way, for each share of such securities, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock Exchange, Inc.
or, if the securities are not listed or
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admitted to trading on the New York Stock Exchange, Inc., as reported in the
principal consolidated transaction reporting system with respect to securities
listed on the principal national securities exchange on which the securities are
listed or admitted to trading or, if the securities are not listed or admitted
to trading on any national securities exchange, as reported by the National
Association of Securities Dealers, Inc. Automated Quotation System or such other
system then in use, or, if on any such date the securities are not listed or
admitted to trading on any national securities exchange or 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 securities selected by the
Board of Directors of the Company; provided, however, that if of any such date
the securities are not listed or admitted to trading on a national securities
exchange or traded in the over-the-counter market, the closing price per share
of such securities on such date shall mean the fair value per share of
securities on such date as determined in good faith by the Board of Directors of
the Company, after consultation with a nationally recognized investment banking
firm, and set forth in a certificate delivered to the Rights Agent.
"Person" shall mean any individual, firm, partnership, association,
group (as such term is used in Rule 13d-5 under the Securities Exchange Act of
1934, as such Rule is
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in effect on the date of this Agreement), corporation or other entity.
"Preferred Stock" shall mean the series of Junior Participating Class A
Preferred Stock, no-par value, of the Company created by Articles of Amendment
in substantially the form set forth in Exhibit B hereto appropriately completed.
"Redemption Price" shall mean an amount equal to $0.01.
"Redemption Time" shall mean the time at which the right to exercise
the Rights shall terminate pursuant to Section 5.1 hereof, whether by reason of
redemption or termination.
"Separation Time" shall mean the close of business on the earlier of
(i) the tenth Business Day (or such later date as the Board of Directors of the
Company may from time to time fix by resolution adopted prior to the Separation
Time that would otherwise have occurred) after the date on which any Person
(other than the Company, a Subsidiary of the Company or an employee stock
ownership or other employee benefit plan of the Company or a Subsidiary of the
Company) commences a tender or exchange offer which, if consummated, would
result in such Person's becoming an Acquiring Person, and (ii) the Flip-in-Date;
provided that if the foregoing results in the Separation Time being prior to the
Record Time, the Separation Time shall be the Record Time, and
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provided further, that if any tender or exchange offer referred to in clause (i)
of this definition is cancelled, terminated or otherwise withdrawn prior to the
Separation Time without the purchase of any shares of common Stock pursuant
thereto, such offer shall be deemed, for purposes of this definition, never to
have been made.
"Stock Acquisition Date" shall mean the first date of public
announcement by the Company (by any means) that an Acquiring Person has
become such.
"Subsidiary" of any specified Person shall mean any corporation or
other entity of which a majority of the voting power of the equity securities or
a majority of the equity interest is Beneficially Owned, directly or indirectly,
by such Person.
"Trading Day", when used with respect to any securities, shall mean a
day on which the New York Stock Exchange, Inc. is open for the transaction of
business or, if such securities are not listed or admitted to trading on the New
York Stock Exchange, Inc., a day on which the principal national securities
exchange on which such securities are listed or admitted to trading is open for
the transaction of business or, if such securities are not
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listed or admitted to trading on any national securities exchange, a Business
Day.
ARTICLE II
THE RIGHTS
2.1 SUMMARY OF RIGHTS. As soon as practicable after the Record Time,
the Company will mail a letter summarizing the terms of the Rights to each
holder of record of Common Stock as of the Record Time, at such holder's address
as shown by the records of the Company.
2.2 LEDGEND ON COMMON STOCK CERTIFICATES. Certificates for the Common
Stock issued after the Record Time but prior to the Separation Time shall
evidence one Right for each share of Common Stock represented thereby and shall
have impressed on, printed on, written on or otherwise affixed to them the
following legend;
Until the Separation Time (as defined in the Rights Agreement referred
to below), this certificate also evidences certain Rights as set forth
in a Rights Agreement, dated as of December 18, 1990 (as such may be
supplemented or amended from time to time, the "Rights Agreement"),
between First Union Corporation (the "Company") and First Union
National Bank of North Carolina, as Rights Agent, the terms of which
are hereby incorporated herein by reference and a copy of which is on
file at the principal executive offices of the Company. Under certain
circumstances, as set forth in the Rights Agreement, such Rights may be
redeemed or terminated, may be exchanged for shares of Common Stock or
other securities or assets of the Company or a "Subsidiary" (as defined
in the Rights Agreement), may expire, may become void (if they are
"Beneficially Owned" by an "Acquiring Person" or an "Affiliate" or
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"Associate" thereof, as such terms are defined in the Rights Agreement,
or by any transferee of any of the foregoing) or may be evidenced by
separate certificates and may no longer be evidenced by this
certificate. The Company will mail or arrange for the mailing of a copy
of the Rights Agreement to the holder of this certificate without
charge within five days after the receipt of a written request
therefor.
Certificates representing shares of Common stock that are issued and outstanding
at the Record Time shall evidence one Right for each share of Common Stock
evidenced thereby notwithstanding the absence of the foregoing legend.
2.3 EXERCISE OF RIGHTS; SEPARATION OF RIGHTS.
(a) Subject to Sections 3.1, 5.1 and 5.10 and subject to adjustment as
herein set forth, each Right will entitle the holder thereof, after the
Separation Time and prior to the Expiration Time, to purchase, for the Exercise
Price, one one-hundredth of a share of Preferred Stock.
(b) Until the Separation Time, (i) no Right may be exercised and (ii)
each Right will be evidenced by the certificate for the associated share of
Common Stock (together, in the case of certificates issued prior to the Record
Time, with the letter mailed to the record holder thereof pursuant to Section
2.1) and will be transferable only together with, and will be transferred by a
transfer of, such associated share (whether with or without such letter).
Notwithstanding any other provision of this Agreement, any Rights held by the
Company or any of its
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Subsidiaries, other than in a fiduciary capacity, shall be void.
(c) Subject to this Section 2.3 and to Sections 3.1, 5.1 and 5.10,
after the Separation Time and prior to the Expiration Time, the Rights (i) may
be exercised and (ii) may be transferred independent of Common Stock. Promptly
following the Separation Time, the Rights Agent will mail to each holder of
record of Common Stock as of the Separation Time (other than any Person whose
Rights have become void pursuant to Section 3.1(b)), at such holder's address as
shown by the records of the Company (the Company hereby agreeing to furnish
copies of such records to the Rights Agent for this purpose), (x) a certificate
(a "Rights Certificate") in substantially the form of Exhibit A hereto
appropriately completed, representing the number of Rights held by such holder
at the Separation Time and having such marks of identification or designation
and such legends, summaries or endorsements printed thereon as the Company may
deem appropriate that are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any national
securities exchange or quotation system on which the Rights may from time to
time be listed or traded, or to conform to usage, and (y) a disclosure statement
describing the Rights.
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(d) Subject to Sections 3.1, 5.1 and 5.10, Rights may be exercised on
any Business Day after the Separation Time and prior to the Expiration Time by
submitting to the Rights Agent the Rights Certificate evidencing such Rights
with an Election to Exercise (an "Election to Exercise") in the form attached to
the Rights Certificate duly completed, accompanied by payment in cash, or by
certified or official bank check or money order payable to the order of the
Company, of a sum equal to the Exercise Price multiplied by the number of Rights
being exercised and a sum sufficient to cover any transfer tax or charge which
may be payable in respect of any transfer involved in the transfer or delivery
of Rights Certificates or the issuance or delivery of certificates for shares or
depositary receipts (or both) in a name other than that of the holder of the
Rights being exercised.
(e) Upon receipt of a Rights Certificate, with an Election to Exercise
accompanied by payment as set forth in Section 2.3(d), and subject to Sections
3.1, 5.1 and 5.10, the Rights Agent will thereupon promptly (i)(A) requisition
certificates evidencing such number of shares or other securities to be
purchased (the Company hereby irrevocably authorizing its transfer agents,
indenture trustees, Subsidiaries or others, as the case may be, to comply with
all such requisitions) and (B) if the Company elects pursuant to Section 5.5 not
to issue certificates
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representing fractional shares, requisition from the depositary selected by the
Company depositary receipts representing the fractional shares to be purchased
or requisition from the Company the amount of cash to be paid in lieu of
fractional shares in accordance with Section 5.5 and (ii) after receipt of such
certificates, depositary receipts and/or cash, deliver the same to or upon the
order of the registered holder of such Rights Certificate, registered (in the
case of certificates or depositary receipts) in such name or names as may be
designated by such holder.
(f) In case the holder of any Rights shall exercise less than all the
Rights evidenced by such holder's Rights Certificate, a new Rights Certificate
evidencing the Rights remaining unexercised will be issued by the Rights Agent
to such holder or to such holder's duly authorized assigns.
(g) The Company covenants and agrees that it will (i) take all such
action as may be necessary to ensure that all shares delivered upon exercise of
Rights shall, at the time of delivery of the certificates for such shares
(subject to payment of the Exercise Price), be duly and validly authorized,
executed, issued and delivered and fully paid and nonassessable; (ii) take all
such action as may be necessary to comply with any applicable requirements of
the Securities Act of 1933 or the Securities Exchange Act of
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1934, and the rules and regulations thereunder, and any other applicable law,
rule or regulation, in connection with the issuance of any shares upon exercise
of Rights; and (iii) pay when due and payable any and all federal and state
transfer taxes and charges which may be payable in respect of the original
issuance or delivery of the Rights Certificates or of any shares issued upon
the exercise of Rights, provided that the Company shall not be required to pay
any transfer tax or charge which may be payable in respect of any transfer
involved in the transfer or delivery of Rights Certificates or the issuance or
delivery of certificates for shares in a name other than that of the holder of
the Rights being transferred or exercised.
2.4 ADJUSTMENTS TO EXERCISE PRICE; NUMBER OF RIGHTS. (a) In the event
the Company shall at any time after the Record Time and prior to the Separation
Time (i) declare or pay a dividend on Common Stock payable in Common Stock, (ii)
subdivide the outstanding Common Stock or (iii) combine the outstanding Common
Stock into a smaller number of shares of Common Stock, (x) the Exercise Price in
effect after such adjustment will be equal to the Exercise Price in effect
immediately prior to such adjustment divided by the number of shares of Common
Stock (the "Expansion Factor") that a holder of one share of Common Stock
immediately prior to such dividend, subdivision or combination would hold
thereafter as a result thereof and (y) each Right
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held prior to such adjustment will become that number of Rights equal to the
Expansion Factor, and the adjusted number of Rights will be deemed to be
distributed among the shares of Common Stock with respect to which the original
Rights were associated (if they remain outstanding) and the shares issued in
respect of such dividend, subdivision or combination, so that each such share of
Common Stock will have exactly one Right associated with it. Each adjustment
made pursuant to this paragraph shall be made as of the payment or effective
date for the applicable dividend, subdivision or combination.
In the event the Company shall at any time after the Record Time and
prior to the Separation Time issue any shares of Common Stock otherwise than in
a transaction referred to in the preceding paragraph, each such share of Common
Stock so issued shall automatically have one new Right associated with it, which
Right shall be evidenced by the certificate representing such share. To the
extent provided in Section 5.3, Rights shall be issued by the Company in respect
of shares of Common Stock that are issued or sold by the Company after the
Separation Time.
(b) In the event the Company shall at any time after the Record Time
and prior to the Separation Time issue or distribute any securities or assets in
respect of, in lieu of or in exchange for Common Stock (other than pursuant to a
regular periodic cash dividend or a dividend paid
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solely in Common Stock) whether by dividend, in a reclassification or
recapitalization (including any such transaction involving a merger,
consolidation or binding share exchange), or otherwise, the Company shall make
such adjustments, if any, in the Exercise Price, number of Rights and/or
securities or other property purchasable upon exercise of Rights as the Board of
Directors of the Company, in its sole discretion, may deem to be appropriate
under the circumstances in order to adequately protect the interests of the
holders of Rights generally, and the Company and the Rights Agent shall amend
this Agreement as necessary to provide for such adjustments.
(c) Each adjustment to the Exercise Price made pursuant to this Section
2.4 shall be calculated to the nearest cent. Whenever an adjustment to the
Exercise Price is made pursuant to this Section 2.4, the Company shall (i)
promptly prepare a certificate setting forth such adjustment and a brief
statement of the facts accounting for such adjustment, (ii) promptly file with
the Rights Agent and with each transfer agent for the Common Stock a copy of
such certificate and (iii) mail a brief summary thereof to each holder of
Rights.
(d) Irrespective of any adjustment or change in the securities
purchasable upon exercise of the Rights, the Rights Certificates
theretofore and thereafter issued may continue to express the
securities so purchasable which were
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expressed in the initial Rights Certificates issued hereunder.
2.5 DATE ON WHICH EXERCISE IS EFFECTIVE. Each Person in whose name any
certificate for shares is issued upon the exercise of Rights shall for all
purposes be deemed to have become the holder of record of the shares represented
thereby on, and such certificate shall be dated, the date upon which the Rights
Certificate evidencing such Rights was duly surrendered and payment of the
Exercise Price for such Rights (and any applicable taxes and other governmental
charges payable by the exercising holder hereunder) was made; provided, however,
that if the date of such surrender and payment is a date upon which the stock
transfer books of the Company are closed, such Person shall be deemed to have
become the record holder of such shares on, and such certificate shall be dated,
the next succeeding Business Day on which the stock transfer books of the
Company are open.
2.6 EXECUTION, AUTHENTICATION, DELIVERY AND DATING OF RIGHTS
CERTIFICATES. (a) The Rights Certificates shall be executed on behalf of the
Company by its Chairman of the Board, President or one of its Vice Presidents,
under its corporate seal reproduced thereon attested by its Secretary or one of
its Assistant Secretaries. The signature of any of these officers on the Rights
Certificates may be manual or facsimile.
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Rights Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the countersignature and delivery of
such Rights Certificates.
Promptly after the Company learns of the Separation Time, the Company will
notify the Rights Agent of such Separation Time and will deliver Rights
Certificates executed by the Company to the Rights Agent for countersignature,
and, subject to Section 3.1(b), the Rights Agent shall manually countersign
and deliver such Rights Certificates to the holders of the Rights pursuant to
Section 2.3(c) hereof. No Rights Certificate shall be valid for any purpose
until manually countersigned by the Rights Agent.
(b) Each Rights Certificate shall be dated the date of countersignature
thereof.
2.7 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE. (a) After the
Separation Time, the Company will cause to be kept a register (the "Rights
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company will provide for the registration and transfer of
Rights. The Rights Agent is hereby appointed "Rights Registrar" for the
purpose of maintaining the Rights Register for the Company and registering
Rights and
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transfers of Rights after the Separation Time as herein provided. In the
event that the Rights Agent shall cease to be the Rights Registrar, the
Rights Agent will have the right to examine the Rights Register at all
reasonable times after the Separation Time.
After the Separation Time and prior to the Expiration Time, upon
surrender for registration of transfer or exchange of any Rights Certificate,
and subject to Sections 2.7(c) and (d), the Company will execute, and the
Rights Agent will countersign and deliver, in the name of the holder or the
designated transferee or transferees, as required pursuant to the holder's
instructions, one or more new Rights Certificates evidencing the same
aggregate number of Rights Certificate so surrendered.
(b) Except as otherwise provided in Section 3.1(b), all Rights issued
upon any registration of transfer or exchange of Rights Certificates shall
be the valid obligations of the Company, and such Rights shall be entitled
to the same benefits under this Agreement as the Rights surrendered upon such
registration of transfer or exchange.
(c) Every Rights Certificate surrendered for registration of transfer or
exchange shall be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company or the Rights Agent, as the
case may be, duly executed by the holder thereof or such
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holder's attorney duly authorized in writing. As a condition to the issuance
of any new Rights Certificate under this Section 2.7, the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto.
(d) The Company shall not be required to register the transfer or exchange
of any Rights after such Rights have become void under Section 3.1(b), been
exchanged under Section 3.1(c) or been redeemed or terminated under
Section 5.1.
2.8 MUTILATED, DESTROYED, LOST AND STOLEN RIGHTS CERTIFICATES. (a) If any
mutilated Rights Certificate is surrendered to the Rights Agent prior to the
Expiration Time, then, subject to Sections 3.1(b) and 5.1, the Company shall
execute and the Rights Agent shall countersign and deliver in exchange
therefor a new Rights Certificate evidencing the same number of Rights as did
the Rights Certificate so surrendered.
(b) If there shall be delivered to the Company and the Rights Agent prior to
the Expiration Time (i) evidence to their satisfaction of the destruction, loss
or theft of any Rights Certificate and (ii) such security or indemnity as may
be required by them to save each of them and any of their agents harmless,
then, subject to Sections 3.1(b) and 5.1 and in the absence of notice to the
Company or the Rights Agent that such Rights Certificate has been
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acquired by a bona fide purchaser, the Company shall execute and upon its
request the Rights Agent shall countersign and deliver, in lieu of any such
destroyed, lost or stolen Rights Certificate, a new Rights Certificate
evidencing the same number of Rights as did the Rights Certificate so
destroyed, lost or stolen.
(c) As a condition to the issuance of any new Rights Certificate under
this Section 2.8, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses
of the Rights Agent) connected therewith.
2.9 PERSONS DEEMED OWNERS. Prior to due presentment of a Rights Certificate
(or, prior to the Separation Time, the associated Common Stock certificate)
for registration of transfer, the Company, the Rights Agent and any agent of
the Company or the Rights Agent may deem and treat the Person in whose
name such Rights Certificate (or, prior to the Separation Time, such Common
Stock certificate) is registered as the absolute owner thereof and of the
Rights evidenced thereby for all purposes whatsoever, and neither the
Company nor the Rights Agent shall be affected by any notice to the contrary.
As used in this Agreement, unless the context otherwise requires, the term
"holder" of any Rights shall mean the registered holder of such Rights (or,
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prior to the Separation Time, the associated shares of Common Stock).
2.10 DELIVERY AND CANCELLATION OF RIGHTS CERTIFICATES. All Rights
Certificates surrendered upon exercise or for registration of transfer
or exchange shall, if surrendered to any person other than the Rights
Agent, be delivered to the Rights Agent and, in any case, shall be
promptly cancelled by the Rights Agent. The Company may at any time
deliver to the Rights Agent for cancellation any Rights Certificates
previously countersigned and delivered hereunder which the Company may
have acquired in any manner whatsoever, and all Rights Certificates so
delivered shall be promptly cancelled by the Rights Agent. No Rights
Certificates shall be countersigned in lieu of or in exchange for any
Rights Certificates cancelled as provided in this Section 2.10, except
as expressly permitted by this Agreement. The Rights Agent shall destroy
all cancelled Rights Certificates and deliver a certificate of destruction
to the Company.
2.11 AGREEMENT OF RIGHT HOLDERS. Every holder of Rights by accepting the
same consents and agrees with the Company and the Rights Agent and with every
other holder of Rights that:
(a) prior to the Separation Time, each Right will be transferable only
together with, and will be transferred by a transfer of, the associated
share of Common Stock;
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(b) after the Separation Time, the Rights Certificates will be transferable
only on the Rights Register as provided herein;
(c) prior to due presentment of a Rights Certificate (or, prior to the
Separation Time, the associated Common Stock certificate) for registration
of transfer, the Company, the Rights Agent and any agent of the Company or
the Rights Agent may deem and treat the person in whose name the Rights
Certificate (or, prior to the Separation Time, the associated Common Stock
certificate) is registered as the absolute owner thereof and of the Rights
evidenced thereby for all purposes whatsoever, and neither the Company nor
the Rights Agent shall be affected by any notice to the contrary;
(d) Rights beneficially owned by certain Persons will under the
circumstances set forth in Section 3.1(b) become void; and
(e) this Agreement may be supplemented or amended from time to time
pursuant to Section 2.4(b), 5.1 or 5.4.
ARTICLE III
ADJUSTMENTS TO THE RIGHTS IN
THE EVENT OF CERTAIN TRANSACTIONS
3.1 FLIP-IN. (a) In the event that prior to the Expiration Time a
Flip-in Date shall occur, the Company shall take such action as shall
be necessary to ensure and provide that, except as provided in this
Section 3.1, each
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Right shall constitute the right to purchase from the Company, upon exercise
thereof in accordance with the terms hereof (but subject to Section 5.10),
that number of shares of Common Stock having an aggregate Market Price on the
Stock Acquisition Date equal to twice the Exercise Price for an amount in
cash equal to the Exercise Price (such right to be appropriately adjusted in
order to protect the interests of the holders of Rights generally in the
event that on or after such Stock Acquisition Date an event of a type
analogous to any of the events described in Section 2.4(a) or (b) shall
have occurred with respect to the Common Stock).
(b) Notwithstanding the foregoing, any Rights that are or were Beneficially
Owned on or after the Stock Acquisition Date by an Acquiring Person or an
Affiliate or Associate thereof or by any transferee, direct or indirect, of
any of the foregoing shall become void and any holder of such Rights
(including transferees) shall thereafter have no right to exercise or
transfer such Rights under any provision of this Agreement. If any Rights
Certificate is presented for assignment or exercise or exchange and the
Person presenting the same shall not complete the certification set forth
at the end of the form of assignment or notice of election to exercise
and provide such additional evidence of the identity of the Beneficial
Owner and its Affiliates and Associates (or former Beneficial Owners and
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their Affiliates and Associates) as the Company shall reasonably request,
then the Company shall be entitled conclusively to deem the Beneficial
Owner thereof to be an Acquiring Person or an Affiliate or Associate thereof
or a transferee of any of the foregoing and accordingly will deem the
Rights evidenced thereby to be void and not transferable or exercisable.
(c) The Board of Directors of the Company may, at its option, at any time
after a Flip-in Date, but only to the fullest extent that applicable law would
not prohibit Rights owned by certain Persons referred to in Section 3.1(b)
becoming void pursuant to the provisions thereof, elect to exchange all
(but not less than all) the then outstanding Rights (which shall not include
Rights that have become void pursuant to the provisions of Section 3.1(b))
for shares of Common Stock at an exchange rate of two shares of Common Stock
per Right, appropriately adjusted in order to protect the interests of
holders of Rights generally in the event that after the Separation Time an
event of a type analogous to any of the events described in Section 2.4(a)
or (b) shall have occurred with respect to the Common Stock (such exchange
rate, as adjusted from time to time, being hereinafter referred to as the
"Exchange Rate").
Immediately upon the action of the Board of Directors of the Company
electing to exchange the Rights, without any further action and without
any notice, the right
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to exercise the Rights will terminate and each Right (other than Rights
that have become void pursuant to Section 3.1(b)) will thereafter represent
only the right to receive a number of shares of Common Stock equal to the
product of one share multiplied by the Exchange Rate. Promptly after the
action of the Board of Directors electing to exchange the Rights, the
Company shall give notice thereof (specifying the steps to be taken to
receive shares of Common Stock in exchange for Rights) to the Rights Agent
and the holders of the Rights outstanding immediately prior thereto (other
than Rights that have become void pursuant to Section 3.1(b)) by mailing
such notice in accordance with Section 5.9.
Each Person in whose name any certificate for shares is issued upon
the exchange of Rights pursuant to this Section 3.1(c) or Section 3.1(d)
shall for all purposes be deemed to have become the holder of record of the
shares represented thereby on, and such certificate shall be dated, the date
upon which the Rights Certificate evidencing such Rights was duly
surrendered and payment of any applicable taxes and other governmental
charges payable by the holder was made; PROVIDED, HOWEVER, that if the
date of such surrender and payment is a date upon which the stock
transfer books of the Company are closed, such Person shall be deemed
to have become the record holder of such shares on, and such certificate
shall be dated, the next succeeding
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Business Day on which the stock transfer books of the Company are open.
(d) Whenever the Company shall become obligated under Section 3.1(a)
or (c) to issue shares of Common Stock upon exercise of or in exchange
for Rights, the Company, at its option, may substitute therefor
shares of Preferred Stock, at a rate of one one-hundredth of
a share of Preferred Stock in the case of Section 3.1(a), or at a rate
of two one-hundredths of a share of Preferred Stock, in the case of
Section 3.1(c), for each share of Common Stock so issuable, respectively.
(e) In the event that there shall not be sufficient authorized but
unissued shares of Common Stock or Preferred Stock of the Company to
permit the exercise or exchange in full of the Rights in accordance with
Section 3.1(a), (c) or (d), the Company shall either (i) call a meeting
of shareholders seeking approval to cause sufficient additional shares to
be authorized (provided that if such approval is not obtained the Company
will take the action specified in clause (ii) of this sentence) or (ii) take
such action as shall be necessary to ensure and provide, to the extent
permitted by applicable law and any agreements or instruments in effect
on the Stock Acquisition Date to which it is a party, that each Right
shall thereafter constitute the right to receive, (x) at the Company's
option, either (A) in return for the Exercise Price, debt or equity
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securities or other assets (or a combination thereof) of the Company and/or one
or more subsidiaries having a fair value equal to twice the Exercise Price, or
(b) without payment of consideration (except as otherwise required by
applicable law), debt or equity securities or other assets (or a combination
thereof) of the Company and/or one or more Subsidiaries having a fair value
equal to the Exercise Price, or (y) if the Board of Directors of the Company
elects to exchange the Rights in accordance with Section 3.1(c), debt or equity
securities or other assets (or a combination thereof) of the Company and/or one
or more Subsidiaries having a fair value equal to the product of the Market
Price of a share of Common stock on the Flip-in Date multiplied by the Exchange
Rate in effect on the Flip-in Date, where in any case set forth in (x) or (y)
above the fair value of such debt or equity securities or other assets shall be
as determined in good faith by the Board of Directors of the Company, after
consultation with a nationally recognized investment banking firm.
ARTICLE IV
THE RIGHTS AGENT
4.1 GENERAL. (a) The Company hereby appoints the Rights Agent to act as
agent for the Company in accordance with the terms and conditions hereof, and
the Rights Agent hereby accepts such appointment. The Company agrees to pay to
the Rights Agent reasonable compensation for all services
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rendered by it hereunder and, from time to time, on demand of the Rights
Agent, its reasonable expenses and counsel fees and other disbursements
incurred in the administration and execution of this Agreement and the exercise
and performance of its duties hereunder. The Company also agrees to indemnify
the Rights Agent for, and to hold it harmless against, any loss, liability, or
expense, incurred without gross negligence, bad faith or willful misconduct on
the part of the Rights Agent, for anything done or omitted to be done 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.
(b) The Rights Agent shall be protected and shall incur no liability for
or in respect of any action taken suffered or omitted by it in connection with
its administration of this Agreement in reliance upon any certificate for
securities purchasable upon exercise of Rights, Rights Certificate,
certificate for other securities of the Company, instrument of assignment or
transfer, power of attorney, endorsement, affidavit, letter, notice, direction,
consent, certificate, statement, or other paper or document believed by it to
be genuine and to be signed, executed and, where necessary, verified or
acknowledged, by the proper Person or Persons.
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4.2 MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT. (a) Any
corporation into which the Rights Agent or any successor Rights Agent may be
merged or with which it may be consolidated, or
any corporation resulting from any merger or consolidation to which the Rights
Agent or any successor Rights Agent is a party, or any corporation succeeding
to the shareholder services business of the Rights Agent or any successor
Rights Agent, will 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 4.4. In case at the time such successor Rights Agent succeeds to the
agency created by this Agreement any of the Rights Certificates have been
countersigned but not delivered, any such successor Rights Agent may adopt
the countersignature of the predecessor Rights Agent and deliver such Rights
Certificates so countersigned; and in case at that time any of the Rights
Certificates have not been countersigned, any successor Rights Agent may
countersign such Rights Certificates either in the name of the predecessor
Rights Agent or in the name of the successor Rights Agent; and in all such
cases such Rights Certificates will have the full force provided in the Rights
Certificates and in this Agreement.
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(b) In case at any time the name of the Rights Agent is changed and at
such time any of the Rights Certificates shall have been countersigned but
not delivered, the Rights Agent may adopt the countersignature under its
prior name and deliver Rights Certificates so countersigned; and in case at
that time any of the Rights Certificates shall not have been countersigned, the
Rights Agent may countersign such Rights Certificates either in its prior
name or in its changed name; and in all such cases such Rights Certificates
shall have the full force provided in the Rights Certificates and in
this Agreement.
4.3 DUTIES OF RIGHTS AGENT. The Rights Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions,
by all of which the Company and the holders of Rights Certificates, by their
acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be legal
counsel for the Company), and the opinion of such counsel will 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 deems it necessary or desirable that any fact or matter be
proved or established by the Company prior to taking or suffering any action
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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 a person believed by the Rights Agent
to be the Chairman of the Board, the President or any Vice President and by
the Treasurer or any Assistant Treasurer or the Secretary or any Assistant
Secretary of the Company and delivered to the Rights Agent; and such
certificate will 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 will be liable hereunder only for its own gross
negligence, bad faith or willful misconduct.
(d) The Rights Agent will not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the
certificates for securities purchasable upon exercise of Rights or the
Rights Certificates (except its countersignature thereof) or be required to
verify the same, but all such statements and recitals are and will be
deemed to have been made by the Company only.
(e) The Rights Agent will not be under any responsibility in respect of
the validity of this Agreement or the execution and delivery hereof (except
the due authorization, execution and delivery hereof by the Rights Agent)
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or in respect of the validity or execution of any certificate for securities
purchasable upon exercise of Rights or Rights Certificate (except its
countersignature thereof); nor will it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement or in any
Rights Certificate; nor will it be responsible for any change in the
exercisability of the Rights (including the Rights becoming void pursuant
to Section 3.1(b)) or any adjustment required under Section 2.4 or 3.1 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 after receipt of
the certificate contemplated by Section 2.4 describing any such adjustment);
nor will it by any act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any securities purchasable
upon exercise of Rights or any Rights or as to whether any securities
purchasable upon exercise of Rights will, when issued, be duly and validly
authorized, executed, issued and delivered and fully paid and nonassessable or,
if debt obligations, valid, binding and enforceable.
(f) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably be
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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
person believed by the Rights Agent to be the Chairman of the Board, the
President or any Vice President or the Secretary or any Assistant Secretary
or the Treasurer or any Assistant Treasurer of the Company, and to apply to
such persons for advice or instructions in connection with its duties, and it
shall not be liable for any action taken or suffered by it in good faith in
accordance with instructions of any such person.
(h) The Rights Agent and any shareholder, director, officer or employee of
the Rights Agent may buy, sell or deal in Common Stock, Rights or other
securities of the Company or any Subsidiary or become pecuniarily interested
in any transaction in which the Company or any subsidiary may be interested,
or contract with or lend money to the Company or any Subsidiary or
otherwise act as fully and freely as though it were not Rights Agent under
this Agreement. Nothing herein shall preclude the Rights Agent from acting in
any other capacity for the Company, any Subsidiary or any other legal entity.
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(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 will not be answerable
or accountable for any act, default, neglect or misconduct of any such
attorneys or agents or for any loss to the Company resulting from any
such act, default, neglect or misconduct, provided reasonable care was
exercised in the selection and continued employment thereof.
4.4 CHANGE OF RIGHTS AGENT. The Rights Agent may resign and be
discharged from its duties under this Agreement upon 90 days' notice
(or such lesser notice as is acceptable to the Company) in writing
mailed to the Company and to each transfer agent of Common Stock
by registered or certified mail, and to the holders of the Rights
in accordance with Section 5.9. The Company may remove the Rights
Agent upon 30 days' notice in writing, mailed to the Rights Agent
and to each transfer agent of the Common Stock by registered or
certified mail, and to the holders of the Rights in accordance
with Section 5.9. If the Rights Agent should resign or be removed
or otherwise become incapable of acting, the Company will appoint
a successor to the Rights Agent. If the Company fails to make such
appointment within a period of 30 days after 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
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any Rights (which holder shall, with such notice, submit such holder's
Rights Certificate for inspection by the Company), then the holder of
any Rights may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent. Any successor Rights Agent, whether
appointed by the Company or by such a court, shall be a corporation
organized and doing business under the laws of the United States or of
the State of New York or North Carolina, in good standing, having its
principal office in the State of New York or North Carolina, which is
authorized under such laws to exercise the powers of the Rights Agent
contemplated by this Agreement 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 will be vested with the same powers, rights, duties and
responsibilities as if it has been originally named as Rights Agent
without further act or deed; but the predecessor Rights Agent shall
deliver and transfer to the successor Rights Agent any property at
the time held by it hereunder, and execute and deliver any further
assurance, conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment, the Company will file
notice thereof in writing with the predecessor Rights Agent and each
transfer agent of the Common Stock, and mail a notice thereof in writing to
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the holders of the Rights. Failure to give any notice provided for in this
Section 4.4, however, or any defect therein, shall not affect the legality
or validity of the resignation or removal of the Rights Agent or the
appointment of the successor Rights Agent, as the case may be.
ARTICLE V
MISCELLANEOUS
5.1 REDEMPTION; TERMINATION. (a) The Board of Directors of the Company
may, at its option, at any time (i) prior to the Separation Time, elect to
terminate this Agreement and all the then outstanding Rights without any
payment to any holder thereof and (ii) after the Separation Time but prior
to the close of business on the Flip-in Date, elect to redeem all (but not
less than all) the then outstanding Rights at the Redemption Price.
(b) Immediately upon the action of the Board of Directors of the
Company electing to redeem or terminate the Rights (or, if the resolution
of the Board of Directors electing to redeem or terminate the Rights
states that such redemption or termination will not be effective until
the occurrence of a specified future time or event, upon the occurrence
of such future time or event), without any further action and without
any notice, the right to exercise the Rights will terminate and each
Right will thereafter, in the event of redemption, represent only the
right to receive the Redemption Price in cash or, in the event of termina-
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tion, be null and void. Promptly after the Rights are so redeemed or
terminated, the Company shall give notice thereof to the Rights Agent and
the holders of the then outstanding Rights by mailing a notice in accordance
with Section 5.9.
5.2 EXPIRATION. No Person shall have any rights pursuant to this Agreement
or any Right after the Expiration Time, except, if the Rights are exchanged or
redeemed, as provided in Section 3.1(c), 3.1(d), 3.1(e) or 5.1.
5.3 ISSUANCE OF NEW RIGHTS CERTIFICATES. Notwithstanding any of the
provisions of this Agreement or of the Rights to the contrary, the Company
may, at its option, issue new Rights Certificates evidencing Rights in such
form as may be approved by its Board of Directors to reflect any adjustment
or change in the number or kind or class of shares of stock, securities or
assets purchasable upon exercise of Rights made in accordance with the
provisions of this Agreement. In addition, in connection with the issuance
or sale of shares of Common Stock by the Company following the Separation
Time and prior to the Redemption Time or Expiration Time pursuant to
conversion rights, exchange rights, rights (other than Rights), warrants
or options issued or granted prior to and outstanding at the Separation Time,
the Company (a) shall, with respect to shares of Common Stock so issued or sold
pursuant to the Company's stock option or other employee benefit plans or
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<PAGE>
arrangements, or upon conversion, exchange or exercise of securities, if any,
issued prior to and outstanding at the Separation Time, and (b) may, in any
other case, if deemed necessary or appropriate by the Board of Directors of
the Company, issue to the holders of such shares of Common Stock, Rights
Certificates representing the appropriate number of Rights in connection
with the issuance or sale of such shares of Common Stock; PROVIDED HOWEVER,
in each case, (i) no such Rights Certificate shall be issued, if, and to the
extent that, the Company shall be advised by counsel that such issuance
would create a significant risk of material adverse tax consequences to the
Company or to the Person to whom such Rights Certificates would be issued,
(ii) no such Rights Certificates shall be issued if, and to the extent that,
appropriate adjustment shall have otherwise been made in lieu of the issuance
thereof, and (iii) the Company shall have no obligation to distribute Rights
Certificates to any Acquiring Person or Affiliate or Associate of an
Acquiring Person or any transferee of any of the foregoing.
5.4 SUPPLEMENTS AND AMENDMENTS. The Company and the Rights Agent
may from time to time supplement or amend this Agreement without the
approval of any holders of Rights (i) prior to the close of business
on the Flip-in Date, in any respect (other than to change the Expiration
Time, except as contemplated elsewhere herein) and (ii) after the
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<PAGE>
close of business on the Flip-in Date, to make any changes that the Company
may deem necessary or desirable and which shall not materially adversely
affect the interests of the holders of Rights generally or in order to cure
any ambiguity or to correct or supplement any provision contained herein
which may be inconsistent with any other provisions herein or otherwise
defective. Notwithstanding the foregoing, the Company may not amend or
supplement this Agreement to lower the Beneficial Owner threshold of 15%
in the definition of "Acquiring Person" without the prior approval of the
holders of a majority in interest of the Common Stock; PROVIDED that the
Board of Directors may amend or delete this sentence only (i) if it determines
that it would have a material adverse effect on the Company's regulatory
capital position or (ii) if the amendment or deletion is approved by the
holders of a majority interest of the Common Stock. The Rights Agent will
duly execute and deliver any supplement or amendment hereto requested by
the Company which satisfies the terms of the preceding sentence.
5.5 FRACTIONAL SHARES. If the Company elects not to issue
certificates representing fractional shares upon exercise or exchange
of Rights, the Company shall, in lieu thereof, (a) evidence such
fractional shares by depositary receipts issued pursuant to an
appropriate agreement between the Company and a depositary selected by it,
providing that each holder of a depositary receipt shall have all of the
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<PAGE>
rights, privileges and preferences to which such holder would be entitled
as a beneficial owner of such fractional share, or (b) pay to the registered
holder of such Rights the same fraction of the Market Price (determined as
of the date of exercise) of one share of the stock issuable upon such
exercise on the day of exercise.
5.6 RIGHTS OF ACTION. Subject to the terms of this Agreement (including
Section 3.1(b)), rights of action in respect of this Agreement, other than
rights of action vested solely in the Rights Agent, are vested in the
respective holders of the Rights; and any holder of any Rights, without the
consent of the Rights Agent or of the holder of any other Rights, may, on
such holder's own behalf and for such holder's own benefit and the benefit
of other holders of Rights, enforce, and may institute and maintain any
suit, action or proceeding against the Company to enforce, or otherwise
act in respect of, such holder's right to exercise such holder's Rights
in the manner provided in such holder's Rights Certificate and in this
Agreement. Without limiting the foregoing or any remedies available to the
holders of Rights, it is specifically acknowledged that the holders of Rights
would not have an adequate remedy at law for any breach of this Agreement
and 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.
-45-
<PAGE>
5.7 HOLDER OF RIGHTS NOT DEEMED A SHAREHOLDER. No holder, as such, of any
Rights shall be entitled to vote, receive dividends or be deemed for any purpose
the holder of shares or any other securities which may at any time be issuable
on the exercise of such Rights, nor shall anything contained herein or in any
Rights Certificate be construed to confer upon the holder of any Rights, as
such, any of the rights of a shareholder 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 5.8 hereof), or to receive dividends or subscription rights, or
otherwise, until such Rights shall have been exercised or exchanged in
accordance with the provisions hereof.
5.8 NOTICE OF PROPOSED ACTIONS. In case the Company shall propose after the
Separation Time and prior to the Expiration Time (i) to effect or permit (in
cases where the Company's permission is required) occurrence of any Flip-in Date
or (ii) to effect the liquidation, dissolution or winding up of the Company,
then, in each such case, the Company shall give to each holder of a Right, in
accordance with Section 5.9 hereof, a notice of such proposed action which shall
specify the Flip-in Date or the date on which liquidation, dissolution, or
winding up is to take place.
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<PAGE>
5.9 Notices. Notices or demands authorized or required by this Agreement to
be given or made by the Rights Agent or by the holder of any Rights to or on the
Company shall be sufficiently given or made if delivered or sent by first class
mail, postage prepaid, addressed (until another address is filed in writing with
the Rights Agent) as follows:
First Union Corporation
One First Union Center
Charlotte, North Carolina 28288
Attention: Marion A. Cowell, Jr.
Executive Vice President,
Secretary and General Counsel
Any notice or demand authorized or required by this Agreement to be given or
made by the Company or by the holder of any Rights to or on the Rights Agent
shall be sufficiently given or made if delivered or sent by first-class mail,
postage prepaid, addressed (until another address is filed in writing with the
Company) as follows:
First Union National Bank of North Carolina
Shareholder Services Group
Two First Union Center
Charlotte, North Carolina 28288-1154
Notices or demands authorized or required by this Agreement to be given or made
by the Company or the Rights Agent to or on the holder of any Rights shall be
sufficiently given or made if delivered or sent by first-class mail, postage
prepaid, addressed to such holder at the address of such holder as it appears
upon the registry books of the Rights
-47-
<PAGE>
Agent or, prior to the Separation Time, on the registry books of the transfer
agent for the Common Stock. Any notice which is mailed in the manner herein
provided shall be deemed given, whether or not the holder receives the notice.
5.10 SUSPENSION OF EXERCISABILITY. To the extent that the Company
determines in good faith that some action will or need be taken pursuant to
Section 3.1(a), (c), (d) or (e) or to comply with federal or state securities
laws, the Company may suspend the exercisability of the Rights for a period of
up to ninety (90) days following the date of the occurrence of the Separation
Time or the Flip-in Date in order to take such action or comply with such laws.
In the event of any such suspension, the Company shall issue as promptly as
practicable a public announcement stating that the exercisability or
exchangeability of the Rights has been temporarily suspended. Notice thereof
pursuant to Section 5.9 shall not be required.
Failure to give a notice pursuant to the provisions of this Agreement shall
not affect the validity of any action taken hereunder.
5.11 COSTS OF ENFORCEMENT. The Company agrees that if the Company fails to
fulfill any of its obligations pursuant to this Agreement, then the Company will
reimburse the holder of any Rights for the costs and expenses (including legal
fees) incurred by such holder in actions to
-48-
<PAGE>
enforce such holder's rights pursuant to any Rights or this Agreement.
5.12 SUCCESSORS. All the covenants and provisions of this Agreement by or
for the benefit of the Company or the Rights Agent shall bind and inure to the
benefit of their respective successors and assigns hereunder.
5.13 BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give to any Person other than the Company, the Rights Agent and the
holders of the Rights any legal or equitable right, remedy or claim under this
Agreement; but this Agreement shall be for the sole and exclusive benefit of the
Company, the Rights Agent and the holders of the Rights.
5.14 DESCRIPTIVE HEADINGS. Descriptive headings appear herein for
convenience only and shall not control or affect the meaning or construction of
any of the provisions hereof.
5.15 GOVERNING LAW. This Agreement and each Right issued hereunder shall be
deemed to be a contract made under the laws of the State of North Carolina 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.
5.16 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
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<PAGE>
original, and all such counterparts shall together constitute but one and the
same instrument.
5.17 SEVERABILITY. If any term or provision hereof or the application
thereof to any circumstance shall, in any jurisdiction and to any extent, be
invalid or unenforceable, such term or provision shall be ineffective as to such
jurisdiction to the extent of such invalidity or unenforceability without
invalidating or rendering unenforceable the remaining terms and provisions
hereof or the application of such term or provision to circumstances other than
those as to which it is held invalid or unenforceable.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
FIRST UNION CORPORATION
By:/s/ Marion A. Cowell, Jr.
Name: Marion A. Cowell, Jr.
Title: Executive Vice Presdient
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By:/s/ Keith D. Lembo
Name: Keith D. Lembo
Title: Senior Vice President
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<PAGE>
EXHIBIT A
Form of Rights Certificate
Certificate No. W- __________ Rights
THE RIGHTS ARE SUBJECT TO REDEMPTION, TERMINATION AND MANDATORY
EXCHANGE, AT THE OPTION OF THE COMPANY, ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT. RIGHTS BENEFICIALLY OWNED BY ACQUIRING PERSONS OR
AFFILIATES OR ASSOCIATES THEREOF (AS SUCH TERMS ARE DEFINED IN THE
RIGHTS AGREEMENT) OR TRANSFEREES OF ANY OF THE FOREGOING WILL BE VOID.
Rights Certificate
FIRST UNION CORPORATION
This certifies that ___________________, or registered
assigns, is the registered holder of the number of Rights set forth above, each
of which entitles the registered holder thereof, subject to the terms,
provisions and conditions of the Shareholder Protection Rights Agreement, dated
as of December 18, 1990 (as such may be amended or supplemented from time to
time, the "Rights Agreement"), between First Union Corporation, a North Carolina
corporation (the "Company"), and First Union National Bank of North Carolina, a
national banking association, as Rights Agent (the "Rights Agent", which term
shall include any successor Rights Agent under the Rights Agreement), to
purchase from the Company at any time after the Separation Time (as such term is
defined in the Rights Agreement) and prior to the
<PAGE>
close of business on December 28, 2000, one one-hundredth of a fully paid share
of Junior Participating Class A Preferred Stock, no-par value (the "Preferred
Stock"), of the Company (subject to adjustment as provided in the Rights
Agreement) at the Exercise Price referred to below, upon presentation and
surrender of this Rights Certificate with the form of Election to Exercise
attached to this Rights Certificate duly executed at the principal office of the
Rights Agent in Charlotte, North Carolina. The Exercise Price shall initially be
$_________ per Right and shall be subject to adjustment in certain events as
provided in the Rights Agreement.
In certain circumstances described in the Rights Agreement,
the Rights evidenced hereby may entitle the registered holder thereof to
purchase securities or assets other than Preferred Stock, all as provided in the
Rights Agreement.
Subject to the terms of the Rights Agreement, this Rights
Certificate is subject to all of the terms, provisions and conditions of the
Rights Agreement, which terms, provisions and conditions are hereby incorporated
herein by reference and made a part hereof and to which Rights Agreement
reference is hereby made for a full description of the rights, limitations of
rights, obligations, duties and immunities hereunder of the Rights Agent, the
Company and the holders of the Rights Certificates. Copies of the Rights
Agreement are on file at the principal office of the Company and are available
without cost upon written request.
-2-
<PAGE>
Subject to the terms of the Rights Agreement, this Rights
Certificate, with or without other Rights Certificates, upon surrender at the
office of the Rights Agent designated for such purpose, may be exchanged for
another Rights Certificate or Rights Certificates of like tenor evidencing an
aggregate number of Rights equal to the aggregate number of Rights evidenced by
the Rights Certificate or Rights Certificates surrendered. If this Rights
Certificate shall be exercised in part, the registered holder shall be entitled
to receive, upon surrender hereof, another Rights Certificate or Rights
Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, each Right
evidenced by this Rights Certificate may be (a) redeemed by the Company under
certain circumstances, at its option, at a redemption price of $0.01 per Right,
(b) terminated by the Company under certain circumstances, at its option,
without payment, or (c) exchanged by the Company under certain circumstances, at
its option, for two shares of Common Stock or two one-hundredths of a share of
Preferred Stock per Right (or, in certain cases, other securities or assets),
subject, in the case of (a) or (c), to adjustment in certain events as provided
in the Rights Agreement.
-3-
<PAGE>
No holder of this Rights Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any purpose the holder of
any securities 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 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 Rights evidenced by
this Rights Certificate shall have been exercised or exchanged as provided in
the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for
any purpose until it shall have been counter signed by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal.
Date: ___________________
ATTEST: FIRST UNION CORPORATION
__________________________ By__________________________
Secretary
Countersigned:
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, AS RIGHTS AGENT
By________________________
Authorized Signature
-4-
<PAGE>
Form of Reverse Side of Rights Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder
desires to transfer this Rights Certificate.)
FOR VALUE RECEIVED hereby
sells, assigns and transfers unto
(Please print name
and address of transferee)
this Rights Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint ___________________ Attorney,
to transfer the within Rights Certificate on the books of the within-named
Company, with full power of substitution.
Dated: _______________, 19__
Signature Guaranteed: ___________________________
Signature
(Signature must correspond
to name as written upon the
face of this Rights
Certificate in every
particular, without
alteration or enlargement
or any change whatsoever)
Signatures must be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations and credit
unions with membership in an approved signature guarantee Medallion program),
pursuant to SEC Rule 17Ad-15.
<PAGE>
- - ------------------------------------------------------------
(To be completed if true)
The undersigned hereby represents, for the benefit of all holders of Rights and
shares of Common Stock, that the Rights evidenced by this Rights Certificate are
not, and, to the best knowledge of the undersigned, have never been,
Beneficially Owned by an Acquiring Person or an Affiliate or Associate thereof
(as such terms are defined in the Rights Agreement).
--------------------
Signature
- - -----------------------------------------------------------
NOTICE
In the event the certification set forth above is not
completed in connection with a purported assignment, the Company will deem the
Beneficial Owner of the Rights evidenced by this Rights Certificate to be an
Acquiring Person or an Affiliate or Associate thereof (as such terms are defined
in the Rights Agreement) or a transferee of any of the foregoing and accordingly
will deem the Rights evidenced by this Rights Certificate to be void and not
transferable or exercisable.
-2-
<PAGE>
[To be attached to each Rights Certificate]
FORM OF ELECTION TO EXERCISE
(To be executed if holder desires to
exercise the Rights Certificate.)
TO: First Union Corporation
The undersigned hereby irrevocably elects to exercise
___________________ whole Rights represented by the attached Rights Certificate
to purchase the shares of Preferred Stock or, in certain circumstances, Common
Stock issuable upon the exercise of such Rights and requests that certificates
for such shares be issued in the name of:
Address:
Social Security or Other
Taxpayer Identification
Number:
If such number of Rights shall not be all the Rights evidenced by the attached
Rights Certificate, a new Rights Certificate for the balance of such Rights
shall be registered in the name of and delivered to:
Address:
Social Security or Other
Taxpayer Identification
Number:
Dated: _____________, 19__
Signature Guaranteed: _____________________________
Signature
<PAGE>
(Signature must correspond to
name as written upon the face
of the attached Rights
Certificate in every
particular, without alteration
or enlargement or any change
whatsoever)
Signatures must be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations and credit
unions with membership in an approved signature guarantee Medallion program),
pursuant to SEC Rule 17Ad-15.
- - ----------------------------------------------------------
(To be completed if true)
The undersigned hereby represents, for the benefit of all
holders of Rights and shares of Common Stock, that the Rights evidenced by the
attached Rights Certificate are not, and, to the best knowledge of the
undersigned, have never been, Beneficially Owned by an Acquiring Person or an
Affiliate or Associate thereof (as such terms are defined in the Rights
Agreement).
----------------------
Signature
- - ----------------------------------------------------------
NOTICE
In the event the certification set forth above is not
completed in connection with a purported exercise, the Company will deem the
Beneficial Owner of the Rights evidenced by the attached Rights Certificate to
be an Acquiring Person or an Affiliate or Associate thereof (as such terms are
defined in the Rights Agreement) or a transferee of any of the foregoing and
accordingly will deem the Rights evidenced by such Rights Certificate to be void
and not transferable or exercisable.
-2-
<PAGE>
EXHIBIT B
FORM OF ARTICLES OF AMENDMENT
WITH RESPECT TO THE JUNIOR PARTICIPATING
CLASS A PREFERRED STOCK OF FIRST UNION CORPORATION
Pursuant to Sections 55-6-02 and 55-10-06
of the North Carolina Business Corporation Act
The undersigned, _______________________________,
_____________________ of First Union Corporation, a North Carolina corporation
(the "Corporation"), does hereby certify as follows:
(1) The name of the Corporation is FIRST UNION
CORPORATION.
(2) Pursuant to authority granted by Article 4 of the Restated
Charter of the Corporation and in accordance with the provisions of Section
55-6-02 of the North Carolina Business Corporation Act, the Board of Directors
of the Corporation has duly adopted an amendment to the Restated Charter of the
Corporation determining certain preferences, privileges, limitations, and
relative rights (within the limits set forth in Section 55-6-01 of the North
Carolina Business Corporation Act) of a new series of the Corporation's Class A
Preferred Stock, no-par value, before the
<PAGE>
issuance of any shares of such series, the text of which amendment reads in full
as follows:
1. Designation
The distinctive serial designation of this series shall be
"Junior Participating Class A Preferred Stock, no-par value"
(hereinafter called this "Series"). Each share of this Series shall be
identical in all respects with the other shares of this Series except
as to the dates from and after which dividends thereon shall be
cumulative.
The number of shares in this Series shall initially be
____________, which number may from time to time be increased or
decreased (but not below the number then outstanding) by the Board of
Directors. Shares of this Series purchased or otherwise acquired by the
Corporation shall be cancelled and shall thereupon be restored to the
status of authorized but unissued shares of Class A Preferred Stock
undesignated as to series. Shares of this Series may be issued in
fractional shares, which fractional shares shall entitle the holder, in
proportion to such holder's fractional share, to all rights of a holder
of a whole share of this Series.
2. Dividends
(a) The holders of whole or fractional shares of this Series
shall be entitled to receive dividends, when, as and if declared by the
Board of Directors out of funds legally available therefor (i) on each
date that dividends or other distributions (other than dividends or
distributions payable in Common Stock (as defined below) of the
Corporation) are payable on or in respect of Common Stock comprising
part of the Reference Package (as defined below), in an amount per
whole share of this Series equal to the aggregate amount of dividends
or other distributions (other than dividends or distributions payable
in Common Stock of
-2-
<PAGE>
the Corporation) that would be payable on such date to a holder of the
Reference Package and (ii) on the last day of March, June, September
and December in each year, in an amount per whole share of this Series
equal to the excess (if any) of $____* over the aggregate dividends
paid per whole share of this Series during the three month period
ending on such last day. Each such dividend shall be payable to the
holders of record of shares of this Series on the date, not exceeding
fifty days preceding such dividend or distribution payment date, fixed
for the purpose by the Board of Directors in advance of payment of each
particular dividend or distribution. Dividends on each whole and each
fractional share of this Series shall be cumulative from the date such
whole or fractional share is originally issued; provided that any such
whole or fractional share originally issued after a dividend record
date and on or prior to the dividend payment date to which such record
date relates shall not be entitled to receive the dividend payable on
such dividend payment date or any amount in respect of the period from
such original issuance to such dividend payment date. No interest, or
sum of money in lieu of interest, shall be payable in respect of any
dividend that is not paid when it accrues.
(b) No dividend shall be declared and paid, or set apart for
payment on, any share of this Series or any share of any other series
of Class A Preferred Stock or any share of any class of stock, or
series thereof, ranking on a parity with this Series as to dividends,
for any dividend period unless at the same
- - --------
* Insert an amount equal to 1/4 of the Exercise Price divided by
the number of shares purchaseable upon exercise of one Right
(i.e., a guaranteed 1% dividend). Where a Right is exercisable
for one-hundredths of shares, this simplifies to one-fourth
the Exercise Price for one one-hundredth of a share of
Preferred Stock.
-3-
<PAGE>
time a like proportionate dividend for the same dividend period,
ratably in proportion to the respective dividends applicable thereto
shall be declared and paid, or set apart for payment on, all shares of
this Series and all shares of all other series of Class A Preferred
Stock and all shares of any class, or series thereof, ranking on a
parity with this Series as to dividends, then issued and outstanding
and entitled to receive dividends. Holders of shares of this Series
shall not be entitled to any dividend, whether payable in cash,
property or stock, in excess of full cumulative dividends, as herein
provided, on this Series.
(c) So long as any shares of this Series shall be outstanding, unless
the full cumulative dividends on all outstanding shares of this Series
shall have been declared and paid, or set apart for payment, for all
past dividend periods and except as provided in Paragraph 2(b), (i) no
dividend (other than a dividend in Common Stock or in any other stock
of the Corporation ranking junior to this series as to dividends and
distribution of assets upon liquidation, dissolution or winding-up)
shall be declared or paid or set aside for payment, or other
distribution declared or made, upon the Common Stock or upon any other
stock ranking junior to or on a parity with this Series as to dividends
or distribution of assets upon liquidation, dissolution or winding-up,
and (ii) no shares of Common Stock or shares of any other stock of the
Corporation ranking junior to or on a parity with this Series as to
dividends or distribution of assets upon liquidation, dissolution or
winding-up shall be redeemed, purchased or otherwise acquired for any
consideration by the Corporation or any subsidiary of the Corporation
(nor shall any moneys be paid to or made available for a sinking or
other fund for the redemption, purchase or other acquisition of any
shares of any such stock), other than by conversion into or exchange
for Common Stock or any other stock of the Corporation ranking junior
to this Series as to dividends and distribution of assets upon
liquidation, dissolution or winding-up.
-4-
<PAGE>
3. Merger; Consolidation; Reclassification
In the event of any merger, consolidation, reclassification or
other transaction in which the shares of Common Stock are exchanged for
or changed into other stock or securities, cash and/or any other
property, then in any such case the whole and fractional shares of this
Series shall at the same time be similarly exchanged or changed in an
amount per whole share equal to the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the
case may be, that a holder of the Reference Package would be entitled
to receive as a result of such transaction.
4. Liquidation
(a) Upon the voluntary or involuntary liquidation, dissolution
or winding-up of the Corporation, the holders of whole and fractional
shares of this Series shall be entitled to receive out of the net
assets of the Corporation, before any payment or distribution shall be
made or set apart for payment on the Common Stock or any other class or
series of stock of the Corporation ranking junior to this Series as to
distribution of assets upon such liquidation, dissolution or
winding-up, the amount per whole share of this Series equal to the
greater of (i) $_______* or (ii) the aggregate amount distributed or to
be distributed prior to such date in connection with such liquidation,
dissolution or winding-up to a holder of the Reference Package, plus an
amount equal to accrued and unpaid dividends (whether or not declared)
to the date of final distribution (the "Preferential Amount").
(b) In the event the assets of the Corporation available for
distribution to the holders of shares of
- - --------
* Insert an amount equal to 100 times the Exercise Price
in effect as of the Separation Time.
-5-
<PAGE>
this Series upon any voluntary or involuntary liquidation, dissolution
or winding-up of the Corporation shall be insufficient to pay the full
Preferential Amount to which such holders are entitled pursuant to
Paragraph 4(a), no such distribution shall be made on account of any
shares of any other series of Class A Preferred Stock or of any other
class of stock, or series thereof, in any case ranking on a parity with
the shares of this Series as to the distribution of assets upon
liquidation, dissolution or winding-up, unless proportionate
distributive amounts shall be paid on account of the shares of this
Series, ratably in proportion to the preferential sums that would be
payable in such distribution if all sums payable in respect of shares
of all such series of Class A Preferred Stock and any other such class
or series be aforesaid were discharged in full.
(c) After the payment to the holders of the shares of this
Series of the full Preferential Amount, the holders of shares of this
Series, as such, shall have no right or claim to any of the remaining
net assets of the Corporation.
(d) Neither the sale, lease or conveyance of all or
substantially all of the property or business of the Corporation, nor
the merger or consolidation of the Corporation into or with any other
corporation or the merger or consolidation of any other corporation
into or with the Corporation, shall be deemed to be a liquidation,
dissolution or winding-up, voluntary or involuntary, for the purposes
of this Paragraph 4.
5. Redemption
The shares of this Series shall not be redeemable.
6. Conversion and Exchange
The holders of shares of this Series shall not have any rights
to convert such shares into or to exchange such shares for shares of
Common Stock or any
-6-
<PAGE>
other class or series of stock (or any other security) of the
Corporation.
7. Voting Rights
In addition to any other vote or consent of shareholders
required by law or by the Restated Charter of the Corporation, each
whole and fractional share of this Series shall, on any matter, vote as
a class with any other capital stock comprising part of the Reference
Package and voting on such matter and shall have the number of votes
thereon that a holder of the Reference Package would have.
8. Rank
The shares of this Series shall rank junior to the Preferred
Stock, no-par value, and all other Series of Class A Preferred Stock,
no-par value, as to dividends and distribution of assets upon
liquidation, dissolution or winding-up, except to the extent, in the
case of shares of another Series of Class A Preferred Stock, no-par
value, the terms of the shares of such other series provide otherwise.
9. Definitions
(a) For purposes of this Amendment, any class or
series of stock of the Corporation shall be deemed to
rank:
(i) prior to this Series as to dividends or
distribution of assets upon liquidation, dissolution or
winding-up, if the holders of such class or series shall be
entitled to the receipt of dividends or of amounts
distributable upon liquidation, dissolution or winding-up, as
the case may be, in preference or priority to the holders of
this Series;
(ii) on a parity with this Series as to dividends or
distribution of assets upon
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<PAGE>
liquidation, dissolution or winding-up, whether or not the
dividend rates, dividend payment dates or redemption or
liquidation prices per share thereof are different from those
of this Series, if the holders of such class or series of
stock and of this Series shall be entitled to the receipt of
dividends or of amounts distributable upon liquidation,
dissolution or winding-up, as the case may be, in proportion
to their respective dividend amounts or liquidation prices,
without preference or priority to the holders of this Series;
and
(iii) junior to this Series as to dividends or
distribution of assets upon liquidation, dissolution or
winding-up, if such stock shall be Common Stock or if the
holders of this Series shall be entitled to the receipt of
dividends or of amounts distributable upon liquidation,
dissolution or winding-up, as the case may be, in preference
or priority to the holders of shares of such class or series.
(b) The term "Reference Package", in terms of one whole share
of this Series, shall initially mean 100 shares of Common Stock, par
value $3.33 1/3 per share ("Common Stock"), of the Corporation. In the
event the Corporation shall at any time after the close of business on
________, _____* (A) declare or pay a dividend on any Common Stock
payable in Common Stock, (B) subdivide any Common Stock or (C) combine
any Common Stock into a smaller number of shares, then and in each such
case the Reference Package after such event shall be the Common Stock
that a holder of the
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* For an amendment relating to shares to be issued pur suant to
Section 2.3 of the Rights Agreement, insert the Separation
Time. For an amendment relating to shares to be issued
pursuant to Section 3.1(d) of the Rights Agreement, insert the
Flip-in Date.
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<PAGE>
Reference Package immediately prior to such event would hold thereafter
as a result thereof.
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