SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20579
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
June 27, 1995
Date of Report (Date of earliest event reported)
GREAT WESTERN FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 1-4075 95-1913457
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
9200 Oakdale Avenue, Chatsworth, California 91311-6519
(Address of principal executive offices) (Zip Code)
(818) 775-3411
Registrant's telephone number, including area code
Not Applicable
(Former name or former address, if changed since last report)
ITEM 5. OTHER EVENTS.
On June 27, 1995, the Board of Directors (the "Board") of
Great Western Financial Corporation (the "Company") approved a
number of amendments (the "Amendments") to the Rights Agreement,
dated as of June 24, 1986, between the Company and First Chicago
Trust Company of New York, as Rights Agent, as amended by that
certain First Amendment, dated February 19, 1988 (such Rights
Agreement, as so amended on each of February 19, 1988 and June
27, 1995, the "Rights Agreement"). The Amendments (i) reduce to
15% the percentage ownership thresholds at which the rights (the
"Existing Rights") issued pursuant to the Rights Agreement will
(x) separate from the certificates representing shares of the
common stock, par value $1.00 per share (the "Common Stock"), of
the Company and (y) become exercisable for shares of Common Stock
(or, in certain circumstances, other consideration) having a
value equal to two times the exercise price of the Existing
Rights and (ii) provide for additional circumstances in which an
action which must be taken by the Board pursuant to the Rights
Agreement will require the concurrence of a majority of the
Company's Continuing Directors (as defined in the Rights
Agreement) (including Board action to (w) defer the date on which
separate rights certificates are distributed to stockholders
following a tender or exchange offer, (x) declare that the
Existing Rights held by certain transferees of an Acquiring
Person (as defined below) will become null and void, and (z)
amend the Agreement). In addition, the Amendments, among other
things, (i) permit the Board of the Company to defer the date on
which separate rights certificates are distributed to
stockholders following certain tender or exchange offers, (ii)
permit the Board to redeem the Existing Rights following the
occurrence of a Flip-in Event (as defined below) by exchanging
the Existing Rights for shares of Common Stock at a ratio of one
to one and (iii) make certain other technical changes designed to
enhance the effectiveness of the Rights Agreement under various
circumstances.
On June 27, 1995, the Board also declared a dividend
distribution of one Right (each a "New Right") for each
outstanding share of the Common Stock to stockholders of record
at the close of business on the earlier of the date on which the
Rights Agreement expires or the date on which the Existing Rights
are redeemed in accordance with the provisions of the Rights
Agreement (such date being referred to as the "Record Date").
Each New Right entitles the registered holder to purchase from
the Company a unit consisting of one one-hundredth of a share (a
"Unit") of Series A Junior Participating Preferred Stock, par
value $1.00 per share (the "Preferred Stock"), at a Purchase
Price of $80.00 per Unit, subject to adjustment. The Purchase
Price may be paid in cash or by certified check, bank check, bank
draft or money order payable to the order of the Company. The
description and terms of the New Rights are set forth in a Rights
Agreement, dated June 27, 1995 (the "New Rights Agreement"),
between the Company and First Chicago Trust Company of New York,
as Rights Agent.
The terms of the New Rights Agreement are substantially
similar to the terms of the Rights Agreement, as amended and
restated. The New Rights Agreement was adopted by the Board to
replace the Rights Agreement upon the expiration or redemption of
the Existing Rights, which will occur no later than July 14,
1996. In no event will both the Existing Rights and the New
Rights be exercisable.
Initially following the Record Date, the New Rights will be
attached to all Common Stock certificates representing shares
then outstanding, and no separate Rights Certificates will be
distributed. The New Rights will separate from the Common Stock
and a "Distribution Date" will occur upon the earlier of (i) 10
business days following a public announcement that a person or
group of affiliated or associated persons (an "Acquiring Person")
has acquired, or obtained the right to acquire, beneficial
ownership of 15% or more of the outstanding shares of Common
Stock (the "Stock Acquisition Date") or (ii) 10 business days (or
such later date as the Board shall determine, provided, however,
that under certain circumstances any lengthening of such date
will require the concurrence of a majority of the Continuing
Directors) after the date a tender or exchange offer that would
result in a person or group beneficially owning 15% or more of
the outstanding shares of Common Stock is first published, sent
or given to the Company's stockholders. Following the Record
Date and until the Distribution Date, (i) the New Rights will be
evidenced by the Common Stock certificates and will be
transferred with and only with such Common Stock certificates,
(ii) new Common Stock certificates issued after the Record Date
will contain a notation incorporating the New Rights Agreement by
reference and (iii) the surrender for transfer of any certificate
for Common Stock outstanding will also constitute the transfer of
the New Rights associated with the Common Stock represented by
such certificate.
The New Rights are not exercisable until the Distribution
Date and will expire at the close of business on July 14, 2006,
unless earlier redeemed by the Company as described below.
As soon as practicable after the Distribution Date, Rights
Certificates will be mailed to holders of record of the Common
Stock as of the close of business on the Distribution Date and,
thereafter, the separate Rights Certificates alone will represent
the New Rights. Except as otherwise determined by the Board of
Directors, only shares of Common Stock issued prior to the
Distribution Date will be issued with New Rights.
In the event that a person or group becomes the beneficial
owner of 15% or more of the then outstanding shares of Common
Stock (except pursuant to an offer for all outstanding shares of
Common Stock which the independent directors of the Company
determine to be fair to and otherwise in the best interests of
the Company and its stockholders (each such offer, a "Qualifying
Offer")) (a "Flip-in Event"), each holder of a New Right will
thereafter have the right to receive, upon exercise, Common Stock
(or, in certain circumstances, cash, property or other securities
of the Company) having a value (based on the average closing
price of the Common Stock during the one-month period preceding
the Flip-in Event) equal to two times the exercise price of the
New Right. Notwithstanding any of the foregoing, following the
occurrence of any of the events set forth in this paragraph, all
New Rights that are, or (under certain circumstances specified in
the New Rights Agreement) were, beneficially owned by an
Acquiring Person, any of its associates or affiliates, and
certain of its transferees, will be null and void. However, the
New Rights are not exercisable following the first occurrence of
a Flip-in Event until such time as the New Rights are no longer
redeemable by the Company as described below.
For example, following an event described in the preceding
paragraph, at an exercise price of $80.00 per New Right, each New
Right not voided as described above would entitle its holder to
purchase $160.00 worth of Common Stock (or other consideration,
as noted above) for $80.00. Assuming that the Common Stock had a
per share value of $20.00 at such time, the holder of each valid
New Right would be entitled to purchase eight shares of Common
Stock for $80.00.
In the event that, at any time following the Stock
Acquisition Date, (i) the Company is acquired in a merger or
other business combination transaction in which the Company is
not the surviving corporation, or (ii) 50% or more of the
Company's assets or earning power is sold or transferred, each
holder of a New Right (except New Rights which previously have
been voided as described above) shall thereafter have the right
to receive, upon exercise, common stock of the acquiring company
having a value equal to two times the exercise price of the New
Right, provided, however, that holders of New Rights will not be
entitled to such right to receive acquiring company common stock
in connection with any transaction described in this paragraph if
such transaction is consummated with a person who acquired shares
of Common Stock pursuant to a Qualifying Offer and the
consideration offered in such transaction meets certain fair
price criteria.
The Purchase Price payable, and the number of Units of
Preferred Stock or other securities or property issuable, upon
exercise of the New Rights are subject to adjustment from time to
time to prevent dilution (i) in the event of a stock dividend on,
or a subdivision, combination or reclassification of, the
Preferred Stock, (ii) if holders of the Preferred Stock are
granted certain rights or warrants to subscribe for Preferred
Stock or convertible securities at less than the current market
price of the Preferred Stock or (iii) upon the distribution to
holders of the Preferred Stock of evidences of indebtedness or
assets (excluding regular quarterly cash dividends) or of
subscription rights or warrants (other than those referred to
above).
With certain exceptions, no adjustment in the Purchase Price
will be required until cumulative adjustments amount to at least
1% of the Purchase Price. No fractional Units will be issued
and, in lieu thereof, an adjustment in cash will be made based on
the market price of the Preferred Stock on the last trading date
prior to the date of exercise.
At any time until ten business days following the Stock
Acquisition Date, the Company may redeem the New Rights in whole,
but not in part, at a price of $.01 per New Right. After the
redemption period has expired, the Company's right of redemption
may be reinstated if, among other things, an Acquiring Person
reduces its beneficial ownership to less than 15% of the
outstanding shares of Common Stock in a transaction or series of
transactions not involving the Company. Under certain
circumstances, Board action to redeem the New Rights will require
the concurrence of a majority of the Continuing Directors.
Immediately upon the action of the Board ordering redemption of
the New Rights, the New Rights will terminate and the only right
of the holders of New Rights will be to receive the $.01 per New
Right redemption price.
Until a New Right is exercised, the holder thereof, as such,
will have no rights as a stockholder of the Company, including,
without limitation, the right to vote or to receive dividends.
While the distribution of the New Rights will not be taxable to
stockholders or to the Company, stockholders may, depending upon
the circumstances, recognize taxable income in the event that
the New Rights become exercisable for Common Stock (or other
consideration) of the Company or for common stock of an acquiring
company as set forth above.
Any of the provisions of the New Rights Agreement may be
amended by the Board prior to the Distribution Date. After the
Distribution Date, the provisions of the New Rights Agreement may
be amended by the Board in order to cure any ambiguity, to make
changes which do not adversely affect the interests of holders of
New Rights, or to shorten or lengthen any time period under the
New Rights Agreement (including the time period governing
redemption); provided, however, that no amendment to adjust the
time period governing redemption may be made at such time as the
New Rights are not redeemable. Under certain circumstances, any
amendment to the Rights Agreement will require the concurrence of
a majority of the Continuing Directors.
A copy of each of the Rights Agreement and the New Rights
Agreement is attached hereto as Exhibit 99.1 and Exhibit 99.2,
respectively and each is incorporated herein by reference. This
summary description of the Rights Agreement and the New Rights
does not purport to be complete and is qualified in its entirety
by reference to the Rights Agreement and the New Rights
Agreement.
On June 27, 1995, the Board of Directors of the Company also
approved certain amendments to the By-laws of the Company which,
among other things, (i) provide that the Board may determine to
hold the annual meeting of the Company's shareholders on a date
other than the fourth Tuesday in April, (ii) confirm that the
Board has the power to postpone or cancel shareholder meetings,
(iii) grant the presiding officer of a shareholders meeting the
power to adjourn the meeting and (iv) alter slightly the time
frames in which a shareholder who wishes to nominate candidates
for election as directors or propose items of business must
submit written notice to the Company.
A copy of the Amended and Restated By-laws of the Company is
attached hereto as Exhibit 3(ii) and is incorporated herein by
reference. This summary description of the amendments to the By-
laws does not purport to be complete and is qualified in its
entirety by reference to such Amended and Restated By-laws.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION
AND EXHIBITS.
3(ii) Form of Amendment to the By-laws of Great
Western Financial Corporation, together with
the Amended and Restated By-laws of Great
Western Financial Corporation.
99.1 Rights Agreement, dated as of June 24, 1986,
between Great Western Financial Corporation
and First Chicago Trust Company of New York,
as amended and restated on June 27, 1995.
99.2 New Rights Agreement, dated as of June 27,
1995, between Great Western Financial
Corporation and First Chicago Trust Company
of New York.
SIGNATURE
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly authorized.
GREAT WESTERN FINANCIAL CORPORATION
By: /s/ J. Lance Erikson
J. Lance Erikson
Executive Vice President,
Secretary and General Counsel
Date: June 30, 1995
Exhibit Index
Exhibit
3(ii) Form of Amendment to the By-laws of Great
Western Financial Corporation, together with
the Amended and Restated By-laws of Great
Western Financial Corporation.
99.1 Rights Agreement, dated as of June 24, 1986,
between Great Western Financial Corporation
and First Chicago Trust Company of New York,
as amended and restated on June 27, 1995.
99.2 New Rights Agreement, dated as of June 27,
1995, between Great Western Financial
Corporation and First Chicago Trust Company
of
New York.
EXHIBIT 3(ii)
BY-LAW AMENDMENTS ADOPTED JUNE 27, 1995
1. Section 2 of the By-laws shall be amended to read in
its entirety as follows:
SECTION 2. The annual meeting of the stockholders of
the Corporation shall be held on the fourth Tuesday in
April in each year (if that day shall be a legal
holiday then on the next business day) or on such
earlier or later date as the Board of Directors (herein
called the Board) may designate, at such time and
place, within or without the State of Delaware, as may
be specified in the notice thereof, as shall be fixed
by the Board, for the purpose of electing directors and
for the transaction of only such other business as is
properly brought before such meeting in accordance with
these by-laws. If any annual meeting shall not be held
on the day designated or the directors shall not have
been elected thereat or at any adjournment thereof,
thereafter the Board shall cause a special meeting of
the stockholders to be held as soon as practicable for
the election of directors. At such special meeting the
stockholders may elect directors and transact other
business with the same force and effect as at an annual
meeting of the stockholders duly called and held.
2. Section 4 of the By-laws shall be amended by replacing
the third sentence of the first paragraph thereof with the
following sentence:
In order to be timely, a stockholder's notice must be
delivered to or mailed and received at the principal
executive offices of the Corporation, not less than 60
days nor more than 90 days prior to the anniversary
date of the immediately preceding annual meeting of
stockholders; provided, however, that in the event that
the annual meeting is called for a date that is not
within the 30 days before or after such anniversary
date, notice by the stockholder in order to be timely
must be so received not later than the close of
business on the 15th day following the day on which
such notice of the date of the annual meeting was
mailed or such public disclosure of the date of the
meeting was made, whichever first occurs.
3. Section 5 of the By-laws shall be amended by adding the
following sentence to the end of such section:
Any previously scheduled meeting of the stockholders
may be postponed, and (unless the Certificate of
Incorporation otherwise provides) any special meeting
of the stockholders may be cancelled, by resolution of
the Board upon public notice given prior to the date
previously scheduled for such meeting of stockholders.
4. Section 6 of the By-laws shall be amended by adding the
phrase "in every case, the presiding officer at the meeting, or
the shareholders present, although" prior to the phrase "less
than a quorum."
5. Section 12 of the By-laws shall be amended by replacing
the second sentence of the third paragraph thereof with the
following sentence:
In order to be timely, a stockholder's notice must be
delivered to or mailed and received at the principal
executive offices of the Corporation, not less than 60
days nor more than 90 days prior to the anniversary
date of the immediately preceding annual meeting of
stockholders; provided, however, that in the event that
the annual meeting is called for a date that is not
within the 30 days before or after such anniversary
date, notice by the stockholder in order to be timely
must be so received not later than the close of
business on the 15th day following the day on which
such notice of the date of the annual meeting was
mailed or such public disclosure of the date of the
meeting was made, whichever first occurs.
BY-LAWS
of
GREAT WESTERN FINANCIAL CORPORATION
(Formerly Known as Great Western Corporation)
(As Amended Through 6/27/95)
SECTION 1. In addition to its principal
office in the State of Delaware, the Corporation
may also have offices at such other places within
or without the State of Delaware as the Board of
Directors shall from time to time determine.
Amended SECTION 2. The annual meeting of the
9/26/89 stockholders of the Corporation shall be held on
and the fourth Tuesday in April in each year (if that
6/27/95 day shall be a legal holiday then on the next
business day) or on such earlier or later date as
the Board of Directors (herein called the Board)
may designate, at such time and place, within or
without the State of Delaware, as may be specified
in the notice thereof, as shall be fixed by the
Board, for the purpose of electing directors and
for the transaction of only such other business as
is properly brought before such meeting in
accordance with these by-laws. If any annual
meeting shall not be held on the day designated or
the directors shall not have been elected thereat
or at any adjournment thereof, thereafter the
Board shall cause a special meeting of the
stockholders to be held as soon as practicable for
the election of directors. At such special
meeting the stockholders may elect directors and
transact other business with the same force and
effect as at an annual meeting of the stockholders
duly called and held.
Amended SECTION 3. Special meetings of the
9/26/89 stockholders of the Corporation may be held,
within or without the State of Delaware, upon
notice given by or at the direction of the Board
of Directors. Such notice shall state the time,
place and purposes of meeting.
Amended SECTION 4. In order to be properly
9/26/89 brought before any meeting of the stockholders
and held and pursuant to Section 2, business
6/27/95 (including the election of directors) must be (a)
specified in the notice of meeting (or any
supplement thereto) given by or at the
direction of the board, (b) otherwise
properly brought before the meeting by or at
the direction of the Board, or (c) otherwise
properly brought before the meeting by a
stockholder. In addition to any other
applicable requirements, in order for any
such business to be properly brought before
the meeting by a stockholder, the stockholder
must have given timely notice thereof in
writing to the Secretary of the Corporation.
In order to be timely, a stockholder's notice
must be delivered to or mailed and received
at the principal executive offices of the
Corporation, not less than 60 days nor more
than 90 days prior to the anniversary date of
the immediately preceding annual meeting of
stockholders; provided, however, that in the
event that the annual meeting is called for a
date that is not within the 30 days before or
after such anniversary date, notice by the
stockholder in order to be timely must be so
received not later than the close of business
on the 15th day following the day on which
such notice of the date of the annual meeting
was mailed or such public disclosure of the
date of the meeting was made, whichever first
occurs. A stockholder's notice to the
Secretary shall set forth as to each matter
the stockholder proposes to bring before the
meeting (i) a brief description of the
business desired to be brought before the
annual meeting and the reasons for conducting
such business at the meeting, (ii) the name
and record address of the stockholder
proposing such business, (iii) the class and
number of shares of the Corporation which are
beneficially owned by the stockholder, and
(iv) any material interest of the stockholder
in such business.
Amended SECTION 5. Notice of the time and place of
6/27/95 every meeting of a stockholders and of the
business to be acted on at such meeting shall be
mailed by the Secretary or the officer performing
his duties, at least ten days before the meeting,
to each stockholder of record having voting power
and entitled to such notice at his last known post
office address; provided, however, that if a
stockholder be present at a meeting, or in writing
waive notice thereof before or after the meeting,
notice of the meeting to such stockholder shall be
unnecessary. Any previously scheduled meeting of
the stockholders may be postponed, and (unless the
Certificate of Incorporation otherwise provides)
any special meeting of the stockholders may be
cancelled, by resolution of the Board upon public
notice given prior to the date previously
scheduled for such meeting of stockholders.
Amended SECTION 6. The holders of a majority of
6/24/86, the stock of the Corporation having voting power
3/08/94 present in person or by proxy shall constitute a
and quorum, but in every case, the presiding officer
6/27/95 at the meeting or the shareholders present,
although less than a quorum, shall have power to
adjourn any meeting from time to time without
notice. The holders of a majority of the stock
present and entitled to vote at a duly qualified
meeting of stockholders shall have power to act;
unless the matter is one as to which a different
vote is specified by applicable law or regulation
(other than Section 216 of the Delaware General
Corporation Law), in which case the different vote
so specified by such law or regulation shall
apply. The foregoing provisions of this Section 6
each shall be subject the voting rights of holders
of any Preferred Stock the Corporation and any
quorum requirements related thereto.
SECTION 7. At every meeting of
stockholders each stockholder entitled to vote
thereat shall be entitled to one vote for each
share of stock held by him and may vote and
otherwise act in person or by proxy; but no proxy
shall be voted upon more than one year after its
date unless such proxy provides for a longer
period.
Amended SECTION 8. At least ten days before each
3/21/67 election of directors a complete list of the
stockholders entitled to vote at such election,
arranged in alphabetical order and showing the
address and the number of shares registered in the
name of each stockholder, shall be made and filed
either at a place within the city where the
election is to be held and which place shall be
specified in the notice of the meeting at which
such election is to take place, or if not so
specified, at the place where such meeting is to
be held. Such list shall be open to the
examination of any stockholder during ordinary
business hours for a period of at least ten days
prior to such election at the place so filed.
Such list shall be produced and kept at the time
and place of such election and be subject to
inspection by any stockholder.
Amended SECTION 9. Certificates of stock shall be
4/20/71 of such form and device as the Board of Directors
and may elect and shall be signed by the Chairman of
5/28/91 the Board, the President or a Vice President and
the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary, but in case
any such Certificate is countersigned by a
transfer agent, other than the Corporation or its
employee, or by a registrar, other than the
Corporation or its employee, any other signature
on such certificate may be a facsimile, engraved,
stamped or printed.
SECTION 10. The stock of the Corporation
shall be transferable or assignable only on the
books of the Corporation by the holders in person,
or by attorney, on the surrender of the
certificates therefor. The Board of Directors may
appoint one or more transfer agents and registrar
of the stock.
Amended SECTION 11. The Board of Directors shall
11/19/68 have the power to close the stock transfer books
of the Corporation for a period not exceeding
sixty (60) days preceding the date of any meeting
of stockholders, or the date for payment of any
dividend, or the date for the allotment of rights,
or the date when any change or conversion or
exchange of capital stock shall go into effect.
In lieu of closing the stock transfer books as
aforesaid, the Board of Directors is hereby
authorized to fix in advance, a date, not
exceeding sixty (60) days preceding the date of
any meeting of stockholders or the date for the
payment of any dividend or the date for the
allotment of rights, or the date when any change
or conversion or exchange of capital stock shall
go into effect, as a record date for the
determination of the stockholders entitled to
notice of and to vote at, any such meeting, or
entitled to receive payment of any such dividends,
or to any such allotment of rights, or to exercise
the rights in respect of any such change,
conversion or exchange of capital stock, and in
such case such stockholders and only such
stockholders as shall be stockholders of record on
the date so fixed shall be entitled to such notice
of, and to vote at, such meeting or to receive
payment of such dividend, or to receive such
allotment of rights, or to exercise such rights,
as the case may be, notwithstanding any transfer
of any stock on the books of the Corporation.
Amended SECTION 12. The affairs of the Corporation
9/26/89, shall be managed by a Board consisting of such
5/28/91, number of directors as shall be determined from
3/23/93 time to time by resolution of a majority of the
and number of directors constituting the entire Board
6/27/95 of Directors at such time, and in the absence of
such determination, the number of directors shall
be twelve. The directors shall be divided into
three classes as nearly equal in number as
possible and the members of each class shall be
elected for a term of three years by the
stockholders entitled to vote at such election,
and each director so elected shall hold office
until his or her successor is duly elected and
qualified, or until his or her death, or until he
or she shall resign or be removed from office.
Any director or the entire Board of Directors may
be removed, but only for cause, and the vacancies
may be filled in accordance with Article NINTH of
the Corporation's Certificate of Incorporation.
Only persons who are nominated in accordance
with the following procedures shall be eligible
for election as directors at any meeting of
stockholders. Nominations of persons for election
to the Board of Directors of the Corporation at
the annual meeting or any meeting called for the
purpose of electing directors may be made at a
meeting of stockholders by or at the direction of
the Board of Directors by any nominating committee
or person appointed by the Board or by any
stockholder of the Corporation entitled to vote
for the election of directors at the meeting who
complies with the notice procedures set forth in
this Section 12.
In addition to any other applicable
requirements, such nominations, other than those
made by or at the direction of the Board of
Directors, shall be made pursuant to timely notice
in writing to the Secretary of the Corporation.
In order to be timely, a stockholder's notice must
be delivered to or mailed and received at the
principal executive offices of the Corporation,
not less than 60 days nor more than 90 days prior
to the anniversary date of the immediately
preceding annual meeting of stockholders;
provided, however, that in the event that the
annual meeting is called for a date that is not
within the 30 days before or after such
anniversary date, notice by the stockholder in
order to be timely must be so received not later
than the close of business on the 15th day
following the day on which such notice of the date
of the annual meeting was mailed or such public
disclosure of the date of the meeting was made,
whichever first occurs. Such stockholder's notice
to the Secretary shall contain (a) as to each
person whom the stockholder proposes to nominate
for election or reelection as a director, (i) that
person's consent to such nomination, (ii) the
name, age, business address and residence address
of the person, (iii) the principal occupation or
employment of the person, and (iv) the class and
number of shares of capital stock of the
Corporation which are beneficially owned by the
person and (b) as to the stockholder giving the
notice (i) the name and record address of the
stockholder and (ii) the class and number of
shares of capital stock of the Corporation which
are beneficially owned by the stockholder. The
Corporation may require any proposed nominee to
furnish such other information as may reasonably
be required by the Corporation to determine the
eligibility of such proposed nominee to serve as
director of the Corporation. No person shall be
eligible for election as a director of the
Corporation unless nominated in accordance with
the procedures set forth herein.
The Chairman of the meeting shall, if the
facts warrant, determine and declare to the
meeting that the nomination was not made in
accordance with the foregoing procedure, and if he
should so determine, shall so declare to the
meeting and the defective nomination shall be
disregarded.
Amended SECTION 13. Meetings of the Board of
8/16/66 Directors shall be held at the times fixed by
resolutions of the Board or upon call of the
Chairman of the Board or of the President or any
five directors and may be held outside the State
of Delaware. The Secretary or officer performing
his duties shall give reasonable notice (which
shall not in any event be less than five (5) days)
of all meetings of directors, provided that a
meeting may be held without notice immediately
after the annual election, and notice need not be
given of regular meetings held at times fixed by
resolution of the Board. Meetings may be held at
any time without notice if all the directors are
present or if those not present waive notice
either before or after the meeting. Notice by
mail or telegraph to the usual business or
residence address of the directors not less than
the time above specified before the meeting shall
be sufficient. One-half of the total number of
directors, but not less than five shall constitute
a quorum for the transaction of business and the
act of a majority of the directors present at any
meeting at which a quorum is present shall be the
act of the Board of Directors. Less than such a
quorum shall have power to adjourn any meeting
from time to time without notice.
Amended SECTION 14. (a) Any person who was or is a
7/22/86 party or is threatened to be made a party to any
threatened, pending or completed action, suit or
proceeding, whether civil, criminal,
administrative or investigative (other than an
action by or in the right of this Corporation) by
reason of the fact that he is or was or has agreed
to become a director, officer, employee or agent
of this Corporation, or is or was serving or has
agreed to serve at the request of this Corporation
as a director, officer, employee or agent of
another corporation, partnership, joint venture,
trust or other enterprise, or by reason of any
action alleged to have been taken or omitted in
such capacity, shall be indemnified by this
Corporation against costs, charges, expenses
(including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably
incurred by him in connection with such action,
suit or proceeding and any appeal therefrom, if he
acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best
interests of this Corporation, and, with respect
to any criminal action or proceeding, had no
reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or
proceeding by judgement, order, settlement,
conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a
presumption that the person did not act in good
faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of
this Corporation, and, with respect to any
criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
(b) Any person who was or is a party or is
threatened to be made a party to any threatened,
pending or completed action, suit, proceeding or
investigation by or in the right of this
Corporation to procure a judgement in its favor by
reason of the fact that he is or was or has agreed
to become a director, officer, employee or agent
of this Corporation, or is or was serving or has
agreed to serve at the request of this Corporation
as a director, officer, employee, or agent of
another corporation, partnership, joint venture,
trust or other enterprise, or by reason of any
action alleged to have been taken or omitted in
such capacity, shall be indemnified by this
Corporation against costs, charges and expenses
(including attorneys' fees) actually and
reasonably incurred by him in connection with the
defense or settlement of such action or suit and
any appeal therefrom, if he acted in good faith
and in a manner he reasonably believed to be in or
not opposed to the best interest of this
Corporation, except that no indemnification shall
be made in respect of any claim, issue or matter
as to which such person shall have been adjudged
to be liable for negligence or misconduct in the
performance of his duty to this Corporation unless
and only to the extent that the Court of Chancery
of Delaware or the court in which such action or
suit was brought shall determine upon application
that, despite the adjudication of such liability
but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to
indemnity for such costs, charges and expenses
which the Court of Chancery of Delaware or such
other court shall deem proper.
(c) Notwithstanding the other provisions of this
Section, to the extent that a director, officer,
employee or agent of this Corporation has been
successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in
subsections (a) and (b) of this Section, or in
defense of any claim, issue or matter therein, he
shall be indemnified against all costs, charges
and expenses (including attorneys' fees) actually
and reasonably incurred by him in connection
therewith.
(d) Any indemnification under subsections (a) and
(b) of this Section (unless otherwise ordered by a
court) shall be made by this Corporation only as
authorized in the specific case upon a
determination that indemnification of the
director, officer, employee or agent is proper in
the circumstances because he has met the
applicable standard of conduct set forth in
subsections (a) and (b) of this Section. Such
determination shall be made (1) by the Board of
Directors by a majority vote of a quorum
consisting of directors who are not parties to
such action, suit or proceeding, or (2) if such a
quorum is not obtainable, or, even if obtainable,
a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or
(3) by the stockholders, or (4) if a Change in
Control has occurred and the director, officer,
employee or agent seeking indemnification so
requests, in a written opinion rendered by
independent legal counsel chosen by the person
requesting indemnification and not reasonably
objected to by the Board of Directors. For
purposes of subclause (4) of this subsection (d),
"independent legal counsel" shall mean legal
counsel other than an attorney, or a firm having
associated with it an attorney, who has been
retained by or who has performed substantial
services for either this Corporation or the person
seeking indemnification within the past five
years. The Corporation shall pay the fees of the
independent legal counsel. For purposes of this
subsection (d), a "Change in Control" shall be
deemed to have occurred if (i) any person (as such
term is used in Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the
"1934 Act") is or becomes the beneficial owner (as
defined in Rule 13d-3 under the 1934 act),
directly or indirectly, of securities of this
Corporation representing 25% or more of the
combined voting power of this Corporation's then
outstanding securities in a transaction not
approved by the Board of Directors sitting
immediately prior to such acquisition, (ii) this
Corporation is a party to a merger, consolidation,
sale of assets or other reorganization, or proxy
contest, as a consequence of which members of the
Board of Directors sitting immediately prior to
such transaction or event constitute less than
five-sixths of the Board of Directors thereafter,
or (iii) during the immediately preceding four
years, individuals who at the beginning of such
period constituted the Board of Directors cease
for any reason to constitute at least a majority
thereof, unless the election of each director who
was not a director at the beginning of the period
was approved by a vote of at least two-thirds of
the directors then still in office who were
directors at the beginning of the period.
(e) Costs, charges and expenses (including
attorney's fees) incurred by a person referred to
in subsections (a) and (b) of this Section in
defending a civil or criminal action, suit or
proceeding shall be paid promptly by this
Corporation in advance of the final determination
of such action, suit or proceeding; provided,
however, that the payment of such costs, charges
and expenses incurred by a director or officer in
his capacity as a director or officer (and not in
any other capacity in which service was or is
rendered by such person while a director or
officer) in advance of the final disposition of
such action, suit or proceeding shall be made only
upon receipt of an undertaking by or on behalf of
the director or officer to repay all amounts so
advanced in the event that it shall ultimately be
determined that such director or officer is not
entitled to be indemnified by this Corporation as
authorized by the Section. Such costs, charges
and expenses incurred by other employees and
agents may be so paid upon such terms and
conditions, if any, as the Board of Directors
deems appropriate.
(f) The indemnification provided by this Section
shall not be deemed exclusive of any other rights
to which a person seeking indemnification may be
entitled under any law (common or statutory),
agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his
official capacity and as to action in another
capacity while holding office or while employed by
or acting as agent for this Corporation, it being
the policy of this Corporation that
indemnification of the persons specified in
subsections (a) and (b) of this Section shall be
made to the full extent permitted by applicable
law. The indemnification provided by this Section
shall continue as to a person who has ceased to be
a director, officer, employee or agent, and shall
inure to the benefit of the estate, heirs,
executors and administrators of such person. All
rights to indemnification under this Section shall
be deemed to be a contract between this
Corporation and each director, officer, employee
or agent of this Corporation who serves or served
in such capacity at any time while this Section is
in effect. Any repeal or modification of this
Section or any repeal or modification of relevant
provisions of the Delaware General Corporation Law
or any other applicable law shall not in any way
diminish any rights to indemnification of such
director, officer, employee or agent or the
obligation of this Corporation arising hereunder.
(g) If this Section or any portion hereof shall be
invalidated on any ground by any court of
competent jurisdiction, then this Corporation
shall nevertheless indemnify each director,
officer, employee and agent of this Corporation as
to costs, charges and expenses (including
attorneys' fees), judgments, fines and amounts
paid in settlement with respect to any action,
suit or proceeding, whether civil, criminal,
administrative or investigative, including,
without limitation, any action by or in the right
of this Corporation, to the full extent permitted
by any applicable portion of this Section that
shall not have been invalidated and to the full
extent permitted by applicable law.
Amended SECTION 15. The Board of Directors, as
4/21/81, soon as may be after the election of directors in
3/23/93 each year, shall appoint one of their number
and Chairman of the Board and one of their number
4/19/95 President of the Company, and may also appoint one
effective or more Executive Vice-Presidents, Senior Vice-
12/28/95 Presidents, First Vice Presidents and Vice-
Presidents, a Secretary and a Treasurer. The
Board of Directors may from time to time appoint
one of their number as Vice-Chairman and may
appoint such other officers as they deem
appropriate. Any person may hold more than one
office, except that same person may not hold more
than one of the offices of President and
Secretary. The Chairman so appointed shall not in
such capacity be considered an officer of this
Corporation.
SECTION 16. The term of office of all
officers shall be until the next election of
directors and until their respective successors
are chosen and qualified, or until they shall die
or resign but any officer may be removed from
office at any time by the Board of Directors.
Vacancies in any office may be filled by the Board
at any meeting.
SECTION 17. The officers of the Company
shall have such powers and duties as usually
pertain to their offices, except as modified by
the Board of Directors, and shall also have such
powers and duties as may from time to time be
conferred upon them by the Board of Directors.
SECTION 18. The Board of Directors is
authorized to select such depositaries as it shall
deem proper for the funds of the Corporation. All
checks and drafts against such deposited funds
shall be signed and countersigned by persons to be
specified by the Board of Directors.
SECTION 19. The President, or any Vice-
President, shall have authority to execute and
deliver all contracts or undertakings of the
Corporation.
SECTION 20. The corporation seal of the
Corporation shall be in such form as the Board of
Directors shall prescribe.
SECTION 21. The fiscal year of the
Corporation shall be the calendar year.
SECTION 22. Either the Board of Directors
or the stockholders may alter or amend these By-
Laws at any meeting duly held as above provided,
the notice of which includes notice of the
proposed alteration or amendment.
Amended SECTION 23. The Board of Directors may
12/19/72 from time to time appoint such number of Directors
Emeritus as shall be determined by the Board to be
appropriate, who shall serve until the next
directors' meeting after the annual election.
Directors Emeritus shall be selected from
individuals who have previously served as Great
Western Financial Corporation directors and have
not reached their 77th birthday, and may serve
more than one term. The unanimous vote of all
directors present at a meeting shall be required
to elect a Director Emeritus, such vote to be
taken by secret written ballot. Such Directors
Emeritus may attend the meetings of the Board of
Directors in an advisory capacity, with the
privilege of participating in all discussions at
such meetings, but without the power to vote.
Notices of all meetings sent to directors shall
also be sent to Directors Emeritus. Directors
Emeritus shall be paid such fees for attendance at
meetings of the Board of Directors as shall from
time to time be determined by the Board.
Added SECTION 24. The Board of Directors may
6/24/86 impose restrictions on transfer of securities of
the Corporation pursuant to the Rights Agreement,
dated as of June 24, 1986, by and between the
Corporation and Morgan Guaranty Trust Company of
New York, as and to the extent required by such
Rights Agreement, as amended from time to time.
EXHIBIT 99.1
GREAT WESTERN FINANCIAL CORPORATION
and
FIRST CHICAGO TRUST COMPANY OF NEW YORK
Rights Agent
Rights Agreement
Dated as of June 24, 1986, as Amended and
Restated as of June 27, 1995
Table of Contents
Section Page
1. Certain Definitions . . . . . . . . . . . . 2
2. Appointment of Rights Agent . . . . . . . . 9
3. Issue of Rights Certificates . . . . . . . 10
4. Form of Rights Certificates . . . . . . . . 14
5. Countersignature and Registration . . . . . 16
6. Transfer, Split Up, Combination and
Exchange of Rights Certificates;
Mutilated, Destroyed, Lost or Stolen
Rights Certificates . . . . . . . . . . . 18
7. Exercise of Rights; Purchase Price;
Expiration Date of Rights . . . . . . . . 20
8. Cancellation and Destruction of Rights
Certificates . . . . . . . . . . . . . . . 27
9. Reservation and Availability of Capital
Stock . . . . . . . . . . . . . . . . . . 27
10. Preferred Stock Record Date . . . . . . . 31
11. Adjustment of Purchase Price, Number and
Kind of Shares or Number of Rights . . . . 33
12. Certificate of Adjusted Purchase Price or
Number of Shares . . . . . . . . . . . . . 57
13. Consolidation, Merger or Sale or Transfer
of Assets or Earning Power . . . . . . . . 57
14. Fractional Rights and Fractional Shares . 64
15. Rights of Action . . . . . . . . . . . . . 67
16. Agreement of Rights Holders . . . . . . . 68
17. Rights Certificate Holder Not Deemed a
Stockholder . . . . . . . . . . . . . . . 70
18. Concerning the Rights Agent . . . . . . . 71
19. Merger or Consolidation or Change of Name
of Rights Agent . . . . . . . . . . . . . 72
20. Duties of Rights Agent . . . . . . . . . . 74
21. Change of Rights Agent . . . . . . . . . . . 79
22. Issuance of New Rights Certificates . . . 81
23. Redemption and Termination . . . . . . . . 83
24. Notice of Certain Events . . . . . . . . . 89
25. Notices . . . . . . . . . . . . . . . . . 91
26. Supplements and Amendments . . . . . . . . 92
27. Successors . . . . . . . . . . . . . . . . 94
28. Determinations and Actions by the Board of
Directors, etc. . . . . . . . . . . . . . 94
29. Benefits of this Agreement . . . . . . . . 96
30. Severability . . . . . . . . . . . . . . . 96
31. Governing Law . . . . . . . . . . . . . . 97
32. Counterparts . . . . . . . . . . . . . . . 97
33. Descriptive Headings . . . . . . . . . . . 98
Exhibit A -- Certificate of Designation,
Preferences and Rights
Exhibit B -- Form of Rights Certificate
Exhibit C -- Form of Summary of Rights
RIGHTS AGREEMENT
RIGHTS AGREEMENT (the "Agreement"), dated as of
June 24, 1986, as amended and restated as of June 27,
1995, between Great Western Financial Corporation, a
Delaware corporation (the "Company"), and First Chicago
Trust Company of New York (the "Rights Agent").
W I T N E S S E T H
WHEREAS, on June 24, 1986 (the "Rights Dividend
Declaration Date"), the Board of Directors of the Company
(the "Board") authorized and declared a dividend
distribution of one Right for each share of common stock,
par value $1.00 per share, of the Company (the "Common
Stock") outstanding at the close of business on July 14,
1986 (the "Record Date"), and authorized the issuance of
one Right (as such number may hereinafter be adjusted
pursuant to the provisions of Section 11(p) hereof) for
each share of Common Stock of the Company issued between
the Record Date (whether originally issued or delivered
from the Company's treasury) and the Distribution Date,
each Right initially representing the right to purchase
one one-hundredth of a share of Series A Junior
Participating Preferred Stock of the Company having the
rights, powers and preferences set forth in the form of
Certificate of Designation, Preferences and Rights
attached hereto as Exhibit A, upon the terms and subject
to the conditions hereinafter set forth (the "Rights");
WHEREAS, on February 19, 1988, a First
Amendment to the Rights Agreement was entered into
between the Company and the rights agent thereunder; and
WHEREAS, on June 27, 1995, the Board approved
certain additional amendments to this Rights Agreement
and the execution of an amended and restated Rights
Agreement reflecting all of the amendments previously
made thereto;
NOW, THEREFORE, in consideration of the
premises and the mutual agreements herein set forth, the
parties hereby agree as follows:
Section 1. Certain Definitions. For purposes
of this Agreement, the following terms have the meanings
indicated:
(a) "Acquiring Person" shall mean any
Person who or which, together with all Affiliates and
Associates of such Person, shall be the Beneficial Owner
of 15% or more of the shares of Common Stock then
outstanding, but shall not include (i) the Company, (ii)
any Subsidiary of the Company, (iii) any employee benefit
plan of the Company or of any Subsidiary of the Company,
(iv) any Person or entity organized, appointed or
established by the Company for or pursuant to the terms
of any such plan or (v) any such Person who has reported
or is required to report such ownership (but less than
20%) on Schedule 13G under the Exchange Act (or any
comparable or successor report) or on Schedule 13D under
the Exchange Act (or any comparable or successor report)
which Schedule 13G or 13D does not state any intention
to, or reserve the right to, control or influence the
management or policies of the Company or (with respect to
any such Schedule 13D) engage in any of the actions
specified in Item 4 of such Schedule (other than the
disposition of the Common Stock) and who, within 10
Business Days of being requested by the Company to advise
it regarding the same, certifies to the Company that such
Person acquired shares of Common Stock in excess of 14.9%
inadvertently or without knowledge of the terms of the
Rights and who, together with all Affiliates and
Associates, thereafter does not acquire additional shares
of Common Stock while the Beneficial Owner of 15% or more
of the shares of Common Stock then outstanding; provided,
however, that if the Person requested to so certify fails
to do so within 10 Business Days, then such Person shall
become an Acquiring Person immediately after such 10
Business Day Period.
(b) "Affiliate" and "Associate" shall
have the respective meanings ascribed to such terms in
Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended and in effect
on the date of this Agreement (the "Exchange Act").
(c) A Person shall be deemed the
"Beneficial Owner" of, and shall be deemed to
"beneficially own," any securities:
(i) which such Person or any of
such Person's Affiliates or Associates,
directly or indirectly, has the right to
acquire (whether such right is exercisable
immediately or only after the passage of time)
pursuant to any agreement, arrangement or
understanding (whether or not in writing) or
upon the exercise of conversion rights,
exchange rights, rights, warrants or options,
or otherwise; provided, however, that a Person
shall not be deemed the "Beneficial Owner" of,
or to "beneficially own," (A) securities
tendered pursuant to a tender or exchange offer
made by such Person or any of such Person's
Affiliates or Associates until such tendered
securities are accepted for purchase or
exchange, or (B) securities issuable upon
exercise of Rights at any time prior to the
occurrence of a Triggering Event, or (C)
securities issuable upon exercise of Rights
from and after the occurrence of a Triggering
Event which Rights were acquired by such Person
or any of such Person's Affiliates or
Associates prior to the Distribution Date or
pursuant to Section 3(a) or Section 22 hereof
(the "Original Rights") or pursuant to Section
11(i) hereof in connection with an adjustment
made with respect to any Original Rights;
(ii) which such Person or any of
such Person's Affiliates or Associates,
directly or indirectly, has the right to vote
or dispose of or has "beneficial ownership" of
(as determined pursuant to Rule 13d-3 of the
General Rules and Regulations under the
Exchange Act), including pursuant to any
agreement, arrangement or understanding,
whether or not in writing; provided, however,
that a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially
own," any security under this subparagraph (ii)
as a result of an agreement, arrangement or
understanding to vote such security if such
agreement, arrangement or understanding: (A)
arises solely from a revocable proxy given in
response to a public proxy or consent
solicitation made pursuant to, and in
accordance with, the applicable provisions of
the General Rules and Regulations under the
Exchange Act, and (B) is not also then
reportable by such Person on Schedule 13D under
the Exchange Act (or any comparable or
successor report); or
(iii) which are beneficially owned,
directly or indirectly, by any other Person (or
any Affiliate or Associate thereof) with which
such Person (or any of such Person's Affiliates
or Associates) has any agreement, arrangement
or understanding (whether or not in writing),
for the purpose of acquiring, holding, voting
(except pursuant to a revocable proxy as
described in the proviso to subparagraph (ii)
of this paragraph (c)) or disposing of any
voting securities of the Company;
provided, however, that nothing in this paragraph (c)
shall cause a Person engaged in business as an
underwriter of securities to be the "Beneficial Owner"
of, or to "beneficially own," any securities acquired
through such Person's participation in good faith in a
firm commitment underwriting until the expiration of
forty days after the date of such acquisition.
(d) "Business Day" shall mean any day
other than a Saturday, Sunday or a day on which banking
institutions in the State of New York are authorized or
obligated by law or executive order to close.
(e) "Close of business" on any given date
shall mean 5:00 P.M., New York City time, on such date;
provided, however, that if such date is not a Business
Day it shall mean 5:00 P.M., New York City time, on the
next succeeding Business Day.
(f) "Common Stock" shall mean the common
stock, par value $1.00 per share, of the Company, except
that "Common Stock" when used with reference to any
Person other than the Company shall mean the capital
stock of such Person with the greatest voting power, or
the equity securities or other equity interest having
power to control or direct the management, of such
Person.
(g) "Continuing Director" shall mean (i)
any member of the Board, while such Person is a member of
the Board, who is not an Acquiring Person, or an
Affiliate or Associate of an Acquiring Person, or a
representative of an Acquiring Person or of any such
Affiliate or Associate, and was a member of the Board
prior to the date of this Agreement, or (ii) any Person
who subsequently becomes a member of the Board, while
such Person is a member of the Board, who is not an
Acquiring Person, or an Affiliate or Associate of an
Acquiring Person, or a representative of an Acquiring
Person or of any such Affiliate or Associate, if such
Person's nomination for election or election to the Board
is recommended or approved by a majority of the
Continuing Directors.
(h) "Person" shall mean any individual,
firm, corporation, partnership or other entity.
(i) "Preferred Stock" shall mean shares
of Series A Junior Participating Preferred Stock, par
value $1.00 per share, of the Company and, to the extent
that there are not a sufficient number of shares of
Series A Junior Participating Preferred Stock authorized
to permit the full exercise of the Rights, any other
series of Preferred Stock, par value $0.01 per share, of
the Company designated for such purpose containing terms
substantially similar to the terms of the Series A Junior
Participating Preferred Stock.
(j) "Section 11(a)(ii) Event" shall mean
any event described in Section 11(a)(ii) hereof.
(k) "Section 13 Event" shall mean any
event described in clauses (x), (y) or (z) of Section
13(a) hereof.
(l) "Stock Acquisition Date" shall mean
the first date of public announcement (which, for
purposes of this definition, shall include, without
limitation, a report filed pursuant to Section 13(d)
under the Exchange Act) by the Company or an Acquiring
Person that an Acquiring Person has become such.
(m) "Subsidiary" shall mean, with
reference to any Person, any corporation of which an
amount of voting securities sufficient to elect at least
a majority of the directors of such corporation is
beneficially owned, directly or indirectly, by such
Person, or otherwise controlled by such Person.
(n) "Triggering Event" shall mean any
Section 11(a)(ii) Event or any Section 13 Event.
Section 2. Appointment of Rights Agent. The
Company hereby appoints the Rights Agent to act as agent
for the Company and the holders of the Rights (who, in
accordance with Section 3 hereof, shall prior to the
Distribution Date also be the holders of the Common
Stock) in accordance with the terms and conditions
hereof, and the Rights Agent hereby accepts such
appointment. The Company may from time to time appoint
such Co-Rights Agents as it may deem necessary or
desirable.
Section 3. Issue of Rights Certificates.
(a) Until the earlier of (i) the close of
business on the tenth business day after the Stock
Acquisition Date (or, if the tenth business day after the
Stock Acquisition Date occurs before the Record Date, the
close of business on the Record Date), or (ii) the close
of business on the tenth business day (or such later date
as the Board shall determine, provided, however, that any
lengthening of such date following the first occurrence
of either of the events set forth in clauses (i) and (ii)
of the first proviso to Section 23(a) hereof shall be
effective only if there are Continuing Directors and
shall require the concurrence of a majority of such
Continuing Directors) after the date that a tender or
exchange offer by any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of
the Company or of any Subsidiary of the Company, or any
Person or entity organized, appointed or established by
the Company for or pursuant to the terms of any such
plan) is first published or sent or given within the
meaning of Rule 14d-2(a) of the General Rules and
Regulations under the Exchange Act, if upon consummation
thereof, such Person would be the Beneficial Owner of 15%
or more of the shares of Common Stock then outstanding
(the earlier of (i) and (ii) being herein referred to as
the "Distribution Date"), (x) the Rights will be
evidenced (subject to the provisions of paragraph (b) of
this Section 3) by the certificates for the Common Stock
registered in the names of the holders of the Common
Stock (which certificates for Common Stock shall be
deemed also to be certificates for Rights) and not by
separate certificates, and (y) the Rights will be
transferable only in connection with the transfer of the
underlying shares of Common Stock (including a transfer
to the Company). As soon as practicable after the
Distribution Date, the Rights Agent will send by
first-class, insured, postage prepaid mail, to each
record holder of the Common Stock as of the close of
business on the Distribution Date, at the address of such
holder shown on the records of the Company, one or more
right certificates, in substantially the form of Exhibit
B hereto (the "Rights Certificates"), evidencing one
Right for each share of Common Stock so held, subject to
adjustment as provided herein. In the event that an
adjustment in the number of Rights per share of Common
Stock has been made pursuant to Section 11(p) hereof, at
the time of distribution of the Right Certificates, the
Company shall make the necessary and appropriate rounding
adjustments (in accordance with Section 14(a) hereof) so
that Rights Certificates representing only whole numbers
of Rights are distributed and cash is paid in lieu of any
fractional Rights. As of and after the Distribution
Date, the Rights will be evidenced solely by such Rights
Certificates.
(b) As promptly as practicable following
the Record Date, the Company will send a copy of a
Summary of Rights, in substantially the form attached
hereto as Exhibit C (the "Summary of Rights"), by
first-class, postage prepaid mail, to each record holder
of the Common Stock as of the close of business on the
Record Date, at the address of such holder shown on the
records of the Company. With respect to certificates for
the Common Stock outstanding as of the Record Date, until
the Distribution Date, the Rights will be evidenced by
such certificates for the Common Stock and the registered
holders of the Common Stock shall also be the registered
holders of the associated Rights. Until the earlier of
the Distribution Date or the Expiration Date (as such
term is defined in Section 7 hereof), the transfer of any
certificates representing shares of Common Stock in
respect of which Rights have been issued shall also
constitute the transfer of the Rights associated with
such shares of Common Stock.
(c) Rights shall be issued in respect of
all shares of Common Stock which are issued (whether
originally issued or from the Company's treasury) after
the Record Date but prior to the earlier of the
Distribution Date or the Expiration Date. Certificates
representing such shares of Common Stock shall also be
deemed to be certificates for Rights, and shall bear the
following legend:
This certificate also evidences and
entitles the holder hereof to certain Rights as
set forth in the Rights Agreement between Great
Western Financial Corporation (the "Company")
and the rights agent thereunder (the "Rights
Agent"), as amended and restated as of June 27,
1995 (the "Rights Agreement"), the terms of
which are hereby incorporated herein by
reference and a copy of which is on file at the
principal offices of the Company. Under
certain circumstances, as set forth in the
Rights Agreement, such Rights will be evidenced
by separate certificates and will no longer be
evidenced by this certificate. The Company
will mail to the holder of this certificate a
copy of the Rights Agreement, as in effect on
the date of mailing, without charge promptly
after receipt of a written request therefor.
Under certain circumstances set forth in the
Rights Agreement, Rights issued to, or held by,
any Person who is, was or becomes an Acquiring
Person or any Affiliate or Associates thereof
(as such terms are defined in the Rights
Agreement), whether currently held by or on
behalf of such Person or by any subsequent
holder, may become null and void.
With respect to such certificates containing the
foregoing legend, until the earlier of (i) the
Distribution Date or (ii) the Expiration Date, the Rights
associated with the Common Stock represented by such
certificates shall be evidenced by such certificates
alone and registered holders of Common Stock shall also
be the registered holders of the associated Rights, and
the transfer of any of such certificates shall also
constitute the transfer of the Rights associated with the
Common Stock represented by such certificates.
Section 4. Form of Rights Certificates.
(a) The Rights Certificates (and the
forms of election to purchase and of assignment to be
printed on the reverse thereof) shall each be
substantially in the form set forth in Exhibit B hereto
and may have such marks of identification or designation
and such legends, summaries or endorsements printed
thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Agreement,
or as may be required to comply with any applicable law
or with any rule or regulation made pursuant thereto or
with any rule or regulation of any stock exchange on
which the Rights may from time to time be listed, or to
conform to usage. Subject to the provisions of Section
11 and Section 22
hereof, the Rights Certificates, whenever distributed,
shall be dated as of the Record Date and on their face
shall entitle the holders thereof to purchase such number
of one one-hundredths of a share of Preferred Stock as
shall be set forth therein at the price set forth therein
(such exercise price per one one-hundredth of a share,
the "Purchase Price"), but the amount and type of
securities purchasable upon the exercise of each Right
and the Purchase Price thereof shall be subject to
adjustment as provided herein.
(b) Any Rights Certificate issued
pursuant to Section 3(a) or Section 22 hereof that
represents Rights beneficially owned by: (i) an
Acquiring Person or any Associate or Affiliate of an
Acquiring Person, (ii) a transferee of an Acquiring
Person (or of any such Associate or Affiliate) who
becomes a transferee after the Acquiring Person becomes
such, or (iii) a transferee of an Acquiring Person (or of
any such Associate or Affiliate) who becomes a transferee
prior to or concurrently with the Acquiring Person
becoming such and receives such Rights pursuant to either
(A) a transfer (whether or not for consideration) from
the Acquiring Person to holders of equity interests in
such Acquiring Person, or to any Person with whom such
Acquiring Person has any continuing agreement,
arrangement or understanding regarding the transferred
Rights or (B) a transfer which the Board has determined
is part of a plan, arrangement or understanding which has
as a primary purpose or effect avoidance of Section 7(e)
hereof (provided, however, that following the first
occurrence of either of the events set forth in clauses
(i) and (ii) of the first proviso to Section 23(a)
hereof, the determination described in this clause (B)
shall be made by the vote of a majority of the Continuing
Directors), and any Rights Certificate issued pursuant to
Section 6 or Section 11 hereof upon transfer, exchange,
replacement or adjustment of any other Rights Certificate
referred to in this sentence, shall contain (to the
extent feasible) the following legend:
The Rights represented by this Rights
Certificate are or were beneficially owned by a
Person who was or became an Acquiring Person or
an Affiliate or Associate of an Acquiring
Person (as such terms are defined in the Rights
Agreement). Accordingly, this Rights
Certificate and the Rights represented hereby
may become null and void in the circumstances
specified in Section 7(e) of such Agreement.
Section 5. Countersignature and Registration.
(a) The Rights Certificates shall be
executed on behalf of the Company by its Chairman of the
Board, its Vice Chairman, its President or any Vice
President, either manually or by facsimile signature, and
shall have affixed thereto the Company's seal or a
facsimile thereof which shall be attested by the
Secretary or an Assistant Secretary of the Company,
either manually or by facsimile signature. The Rights
Certificates shall be manually countersigned by the
Rights Agent and shall not be valid for any purpose
unless so countersigned. In case any officer of the
Company who shall have signed any of the Rights
Certificates shall cease to be such officer of the
Company before countersignature by the Rights Agent and
issuance and delivery by the Company, such Rights
Certificates, nevertheless, may be countersigned by the
Rights Agent and issued and delivered by the Company with
the same force and effect as though the person who signed
such Rights Certificates had not ceased to be such
officer of the Company; and any Rights Certificates may
be signed on behalf of the Company by any person who, at
the actual date of the execution of such Rights
Certificate, shall be a proper officer of the Company to
sign such Rights Certificate, although at the date of the
execution of this Rights Agreement any such person was
not such an officer.
(b) Following the Distribution Date, the
Rights Agent will keep or cause to be kept, at its
principal office or offices designated as the appropriate
place for surrender of Rights Certificates upon exercise
or transfer, books for registration and transfer of the
Rights Certificates issued hereunder. Such books shall
show the names and addresses of the respective holders of
the Rights Certificates, the number of Rights evidenced
on its face by each of the Rights Certificates, the
certificate number of each of the Rights Certificates and
the date of each of the Rights Certificates.
Section 6. Transfer, Split Up, Combination and
Exchange of Rights Certificates; Mutilated, Destroyed,
Lost or Stolen Rights Certificates. (a) Subject to the
provisions of Section 4(b), Section 7(e) and Section 14
hereof, at any time after the close of business on the
Distribution Date, and at or prior to the close of
business on the Expiration Date, any Rights Certificate
or Certificates may be transferred, split up, combined or
exchanged for another Rights Certificate or Certificates,
entitling the registered holder to purchase a like number
of one one-hundredths of a share of Preferred Stock (or,
following a Triggering Event, Common Stock, other
securities, cash or other assets, as the case may be) as
the Rights Certificate or Certificates surrendered then
entitled such holder (or former holder in the case of a
transfer) to purchase. Any registered holder desiring to
transfer, split up, combine or exchange any Rights
Certificate or Certificates shall make such request in
writing delivered to the Rights Agent, and shall
surrender the Rights Certificate or Certificates to be
transferred, split up, combined or exchanged at the
principal office or offices of the Rights Agent
designated for such purpose. Neither the Rights Agent
nor the Company shall be obligated to take any action
whatsoever with respect to the transfer of any such
surrendered Rights Certificate until the registered
holder shall have completed and signed the certificate
contained in the form of assignment on the reverse side
of such Rights Certificate and shall have provided such
additional evidence of the identity of the Beneficial
Owner (or former Beneficial Owner) or Affiliates or
Associates thereof as the Company shall reasonably
request. Thereupon the Rights Agent shall, subject to
Section 4(b), Section 7(e) and Section 14 hereof,
countersign and deliver to the Person entitled thereto a
Rights Certificate or Rights Certificates, as the case
may be, as so requested. The Company may require payment
of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any
transfer, split up, combination or exchange of Rights
Certificates.
(b) Upon receipt by the Company and the
Rights Agent of evidence reasonably satisfactory to them
of the loss, theft, destruction or mutilation of a Rights
Certificate, and, in case of loss, theft or destruction,
of indemnity or security reasonably satisfactory to them,
and reimbursement to the Company and the Rights Agent of
all reasonable expenses incidental thereto, and upon
surrender to the Rights Agent and cancellation of the
Rights Certificate if mutilated, the Company will execute
and deliver a new Rights Certificate of like tenor to the
Rights Agent for countersignature and delivery to the
registered owner in lieu of the Rights Certificate so
lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights. (a) Subject to Section 7(e)
hereof, the registered holder of any Rights Certificate
may exercise the Rights evidenced thereby (except as
otherwise provided herein including, without limitation,
the restrictions on exercisability set forth in Section
9(c), Section 11(a)(iii) and Section 23(a) hereof) in
whole or in part at any time after the Distribution Date
upon surrender of the Rights Certificate, with the form
of election to purchase and the certificate on the
reverse side thereof duly executed, to the Rights Agent
at the principal office or offices of the Rights Agent
designated for such purpose, together with payment of the
aggregate Purchase Price with respect to the total number
of one one-hundredths of a share (or other securities,
cash or other assets, as the case may be) as to which
such surrendered Rights are then exercisable, at or prior
to the earlier of (i) the close of business on July 14,
1996 (the "Final Expiration Date"), or (ii) the time at
which the Rights are redeemed as provided in Section 23
hereof (the earlier of (i) and (ii) being herein referred
to as the "Expiration Date").
(b) The Purchase Price for each one
one-hundredth of a share of Preferred Stock pursuant to
the exercise of a Right shall initially be $175, and
shall be subject to adjustment from time to time as
provided in Sections 11 and 13(a) hereof and shall be
payable in accordance with paragraph (c) below.
(c) Upon receipt of a Rights Certificate
representing exercisable Rights, with the form of
election to purchase and the certificate duly executed,
accompanied by payment, with respect to each Right so
exercised, of the Purchase Price per one one-hundredth of
a share of Preferred Stock (or other shares, securities,
cash or other assets, as the case may be) to be purchased
as set forth below and an amount equal to any applicable
transfer tax, the Rights Agent shall, subject to Section
20(k) hereof, thereupon promptly (i) (A) requisition from
any transfer agent of the shares of Preferred Stock (or
make available, if the Rights Agent is the transfer agent
for such shares) certificates for the total number of one
one-hundredths of a share of Preferred Stock to be
purchased and the Company hereby irrevocably authorizes
its transfer agent to comply with all such requests, or
(B) if the Company shall have elected to deposit the
total number of shares of Preferred Stock issuable upon
exercise of the Rights hereunder with a depositary agent,
requisition from the depositary agent depositary receipts
representing such number of one one-hundredths of a share
of Preferred Stock as are to be purchased (in which case
certificates for the shares of Preferred Stock
represented by such receipts shall be deposited by the
transfer agent with the depositary agent) and the Company
will direct the depositary agent to comply with such
request, (ii) requisition from the Company the amount of
cash, if any, to be paid in lieu of fractional shares in
accordance with Section 14 hereof, (iii) after receipt of
such certificates or depositary receipts, cause the same
to be delivered to or upon the order of the registered
holder of such Rights Certificate, registered in such
name or names as may be designated by such holder, and
(iv) after receipt thereof, deliver such cash, if any, to
or upon the order of the registered holder of such Rights
Certificate. The payment of the Purchase Price (as such
amount may be reduced pursuant to Section 11(a)(iii)
hereof) shall be made in cash or by certified check, bank
check, bank draft or money order payable to the order of
the Company. In the event that the Company is obligated
to issue other securities (including Common Stock) of the
Company, pay cash and/or distribute other property
pursuant to Section 11(a) hereof, the Company will make
all arrangements necessary so that such other securities,
cash and/or other property are available for distribution
by the Rights Agent, if and when appropriate. The
Company reserves the right to require prior to the
occurrence of a Triggering Event that, upon any exercise
of Rights, a number of Rights be exercised so that only
whole shares of Preferred Stock be issued. In addition,
if the Company shall determine that a registration
statement is required following the Distribution Date,
the Company may, subject to the provisions of Section
9(c) hereof, temporarily suspend the exercisability of
the Rights until such time as a registration statement
has been declared effective. Notwithstanding any
provision of this Agreement to the contrary, the Rights
shall not be exercisable in any jurisdiction if the
requisite qualification in such jurisdiction shall not
have been obtained, the exercise thereof shall not be
permitted under applicable law or a registration
statement shall not have been declared effective.
(d) In case the registered holder of any
Rights Certificate shall exercise less than all the
Rights evidenced thereby, a new Rights Certificate
evidencing Rights equivalent to the Rights remaining
unexercised shall be issued by the Rights Agent and
delivered to, or upon the order of, the registered holder
of such Rights Certificate, registered in such name or
names as may be designated by such holder, subject to the
provisions of Section 14 hereof.
(e) Notwithstanding anything in this
Agreement to the contrary, from and after the first
occurrence of a Section 11(a)(ii) Event, any Rights
beneficially owned by (i) an Acquiring Person or an
Associate or Affiliate of an Acquiring Person, (ii) a
transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee after
such Acquiring Person becomes such, or (iii) a transferee
of such Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee prior to or
concurrently with such Acquiring Person becoming such and
receives such Rights pursuant to either (A) a transfer
(whether or not for consideration) from such Acquiring
Person to holders of equity interests in such Acquiring
Person or to any Person with whom such Acquiring Person
has any continuing agreement, arrangement or
understanding regarding the transferred Rights or (B) a
transfer which the Board has determined is part of a
plan, arrangement or understanding which has as a primary
purpose or effect the avoidance of this Section 7(e)
(provided, however, that following the first occurrence
of either of the events set forth in clauses (i) and (ii)
of the first proviso to Section 23(a) hereof, the
determination described in this clause (B) shall be made
by the vote of a majority of the Continuing Directors),
shall become null and void without any further action and
no holder of such Rights shall have any rights whatsoever
with respect to such Rights, whether under any provision
of this Agreement or otherwise. The Company shall use
all reasonable efforts to insure that the provisions of
this Section 7(e) and Section 4(b) hereof are complied
with, but shall have no liability to any holder of Rights
Certificates or other Person as a result of its failure
to make any determinations with respect to an Acquiring
Person or its Affiliates, Associates or transferees
hereunder.
(f) Notwithstanding anything in this
Agreement to the contrary, neither the Rights Agent nor
the Company shall be obligated to undertake any action
with respect to a registered holder upon the occurrence
of any purported exercise as set forth in this Section 7
unless such registered holder shall have (i) completed
and signed the certificate contained in the form of
election to purchase set forth on the reverse side of the
Rights Certificate surrendered for such exercise, and
(ii) provided such additional evidence of the identity of
the Beneficial Owner (or former Beneficial Owner) or
Affiliates or Associates thereof as the Company shall
reasonably request.
Section 8. Cancellation and Destruction of
Rights Certificates. All Rights Certificates surrendered
for the purpose of exercise, transfer, split up,
combination or exchange shall, if surrendered to the
Company or any of its agents, be delivered to the Rights
Agent for cancellation or in cancelled form, or, if
surrendered to the Rights Agent, shall be cancelled by
it, and no Rights Certificates shall be issued in lieu
thereof except as expressly permitted by any of the
provisions of this Agreement. The Company shall deliver
to the Rights Agent for cancellation and retirement, and
the Rights Agent shall so cancel and retire, any other
Rights Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights
Agent shall deliver all cancelled Rights Certificates to
the Company, or shall, at the written request of the
Company, destroy such cancelled Rights Certificates, and
in such case shall deliver a certificate of destruction
thereof to the Company.
Section 9. Reservation and Availability of
Capital Stock. (a) The Company covenants and agrees
that it will cause to be reserved and kept available out
of its authorized and unissued shares of Preferred Stock
(and, following the occurrence of a Triggering Event, out
of its authorized and unissued shares of Common Stock
and/or other securities or out of its authorized and
issued shares held in its treasury), the number of shares
of Preferred Stock (and, following the occurrence of a
Triggering Event, Common Stock and/or other securities)
that, as provided in this Agreement including Section
11(a)(iii) hereof, will be sufficient to permit the
exercise in full of all outstanding Rights.
(b) So long as the shares of Preferred
Stock (and, following the occurrence of a Triggering
Event, Common Stock and/or other securities) issuable and
deliverable upon the exercise of the Rights may be listed
on any national securities exchange, the Company shall
use its best efforts to cause, from and after such time
as the Rights become exercisable, all shares reserved for
such issuance to be listed on such exchange upon official
notice of issuance upon such exercise.
(c) The Company shall use its best
efforts to (i) file, as soon as practicable following the
earliest date after the first occurrence of a Section
11(a)(ii) Event on which the consideration to be
delivered by the Company upon exercise of the Rights has
been determined in accordance with Section 11(a)(iii)
hereof, or as soon as is required by law following the
Distribution Date, as the case may be, a registration
statement under the Securities Act of 1933 (the "Act"),
with respect to the securities purchasable upon exercise
of the Rights on an appropriate form, (ii) cause such
registration statement to become effective as soon as
practicable after such filing, and (iii) cause such
registration statement to remain effective (with a
prospectus at all times meeting the requirements of the
Act) until the earlier of (A) the date as of which the
Rights are no longer exercisable for such securities, and
(B) the date of the expiration of the Rights. The
Company will also take such action as may be appropriate
under, or to ensure compliance with, the securities or
"blue sky" laws of the various states in connection with
the exercisability of the Rights. The Company may
temporarily suspend, for a period of time not to exceed
ninety (90) days after the date set forth in clause (i)
of the first sentence of this Section 9(c), the
exercisability of the Rights in order to prepare and file
such registration statement and permit it to become
effective. Upon any such suspension, the Company shall
issue a public announcement stating that the
exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time
as the suspension is no longer in effect. In addition,
if the Company shall determine that a registration
statement is required following the Distribution Date,
the Company may temporarily suspend the exercisability of
the Rights until such time as a registration statement
has been declared effective. Notwithstanding any
provision of this Agreement to the contrary, the Rights
shall not be exercisable in any jurisdiction if the
requisite qualification in such jurisdiction shall not
have been obtained, the exercise thereof shall not be
permitted under applicable law or a registration
statement shall not have been declared effective.
(d) The Company covenants and agrees that
it will take all such action as may be necessary to
ensure that all one one-hundredths of a share of
Preferred Stock (and, following the occurrence of a
Triggering Event, Common Stock and/or other securities)
delivered upon exercise of Rights shall, at the time of
delivery of the certificates for such shares (subject to
payment of the Purchase Price), be duly and validly
authorized and issued and fully paid and nonassessable.
(e) The Company further covenants and
agrees that it will pay when due and payable any and all
federal and state transfer taxes and charges which may be
payable in respect of the issuance or delivery of the
Rights Certificates and of any certificates for a number
of one one-hundredths of a share of Preferred Stock (or
Common Stock and/or other securities, as the case may be)
upon the exercise of Rights. The Company shall not,
however, be required to pay any transfer tax which may be
payable in respect of any transfer or delivery of Rights
Certificates to a Person other than, or the issuance or
delivery of a number of one one-hundredths of a share of
Preferred Stock (or Common Stock and/or other securities,
as the case may be) in respect of a name other than that
of, the registered holder of the Rights Certificates
evidencing Rights surrendered for exercise or to issue or
deliver any certificates for a number of one
one-hundredths of a share of Preferred Stock (or Common
Stock and/or other securities, as the case may be) in a
name other than that of the registered holder upon the
exercise of any Rights until such tax shall have been
paid (any such tax being payable by the holder of such
Rights Certificate at the time of surrender) or until it
has been established to the Company's satisfaction that
no such tax is due.
Section 10. Preferred Stock Record Date. Each
person in whose name any certificate for a number of one
one-hundredths of a share of Preferred Stock (or Common
Stock and/or other securities, as the case may be) is
issued upon the exercise of Rights shall for all purposes
be deemed to have become the holder of record of such
fractional shares of Preferred Stock (or Common Stock
and/or other securities, as the case may be) represented
thereby on, and such certificate shall be dated, the date
upon which the Rights Certificate evidencing such Rights
was duly surrendered and payment of the Purchase Price
(and all applicable transfer taxes) was made; provided,
however, that if the date of such surrender and payment
is a date upon which the Preferred Stock (or Common Stock
and/or other securities, as the case may be) transfer
books of the Company are closed, such Person shall be
deemed to have become the record holder of such shares
(fractional or otherwise) on, and such certificate shall
be dated, the next succeeding Business Day on which the
Preferred Stock (or Common Stock and/or other securities,
as the case may be) transfer books of the Company are
open. Prior to the exercise of the Rights evidenced
thereby, the holder of a Rights Certificate shall not be
entitled to any rights of a stockholder of the Company
with respect to shares for which the Rights shall be
exercisable, including, without limitation, the right to
vote, to receive dividends or other distributions or to
exercise any preemptive rights, and shall not be entitled
to receive any notice of any proceedings of the Company,
except as provided herein.
Section 11. Adjustment of Purchase Price,
Number and Kind of Shares or Number of Rights. The
Purchase Price, the number and kind of shares covered by
each Right and the number of Rights outstanding are
subject to adjustment from time to time as provided in
this Section 11.
(a)(i) In the event the Company
shall at any time after the date of this
Agreement (A) declare a dividend on the
Preferred Stock payable in shares of Preferred
Stock, (B) subdivide the outstanding Preferred
Stock, (C) combine the outstanding Preferred
Stock into a smaller number of shares, or (D)
issue any shares of its capital stock in a
reclassification of the Preferred Stock
(including any such reclassification in
connection with a consolidation or merger in
which the Company is the continuing or
surviving corporation), except as otherwise
provided in this Section 11(a) and Section 7(e)
hereof, the Purchase Price in effect at the
time of the record date for such dividend or of
the effective date of such subdivision,
combination or reclassification, and the number
and kind of shares of Preferred Stock or
capital stock, as the case may be, issuable on
such date, shall be proportionately adjusted so
that the holder of any Right exercised after
such time shall be entitled to receive, upon
payment of the Purchase Price then in effect,
the aggregate number and kind of shares of
Preferred Stock or capital stock, as the case
may be, which, if such Right had been exercised
immediately prior to such date and at a time
when the Preferred Stock transfer books of the
Company were open, he would have owned upon
such exercise and been entitled to receive by
virtue of such dividend, subdivision,
combination or reclassification. If an event
occurs which would require an adjustment under
both this Section 11(a)(i) and Section
11(a)(ii) hereof, the adjustment provided for
in this Section 11(a)(i) shall be in addition
to, and shall be made prior to, any adjustment
required pursuant to Section 11(a)(ii) hereof.
(ii) In the event that any Person
(other than the Company, any Subsidiary of the
Company, any employee benefit plan of the
Company or of any Subsidiary of the Company, or
any Person or entity organized, appointed or
established by the Company for or pursuant to
the terms of any such plan), alone or together
with its Affiliates and Associates, shall, at
any time after the Rights Dividend Declaration
Date, become the Beneficial Owner of 15% or
more of the shares of Common Stock then
outstanding, unless the event causing the 15%
threshold to be crossed is a transaction set
forth in Section 13(a) hereof, or is an
acquisition of shares of Common Stock pursuant
to a tender offer or an exchange offer for all
outstanding shares of Common Stock at a price
and on terms determined by at least a majority
of the members of the Board who are not
officers of the Company and who are not
representatives, nominees, Affiliates or
Associates of an Acquiring Person, after
receiving advice from one or more investment
banking firms, to be (a) at a price which is
fair to the Company's stockholders (taking into
account all factors which such members of the
Board deem relevant including, without
limitation, prices which could reasonably be
achieved if the Company or its assets were sold
on an orderly basis designed to realize maximum
value) and (b) otherwise in the best interests
of the Company and its stockholders
(hereinafter a "Qualifying Offer"), then,
promptly following the occurrence of any event
described in Section 11(a)(ii) hereof, proper
provision shall be made so that each holder of
a Right (except as provided below and in
Section 7(e) hereof) shall thereafter have the
right to receive, upon exercise thereof at the
then current Purchase Price in accordance with
the terms of this Agreement, in lieu of a
number of one one-hundredths of a share of
Preferred Stock, such number of shares of
Common Stock of the Company as shall equal the
result obtained by (x) multiplying the then
current Purchase Price by the then number of
one one-hundredths of a share of Preferred
Stock for which a Right was exercisable
immediately prior to the first occurrence of a
Section 11(a)(ii) Event, and (y) dividing that
product (which, following such first
occurrence, shall thereafter be referred to as
the "Purchase Price" for each Right and for all
purposes of this Agreement) by 50% of the
current market price (determined pursuant to
Section 11(d) hereof) per share of Common Stock
on the date of such first occurrence (such
number of shares, the "Adjustment Shares").
(iii) In the event that the number
of shares of Common Stock which are authorized
by the Company's certificate of incorporation
but not outstanding or reserved for issuance
for purposes other than upon exercise of the
Rights are not sufficient to permit the
exercise in full of the Rights in accordance
with the foregoing subparagraph (ii) of this
Section 11(a), the Company shall (A) determine
the excess of (1) the value of the Adjustment
Shares issuable upon the exercise of a Right
(the "Current Value") over (2) the Purchase
Price (such excess, the "Spread"), and (B) with
respect to each Right (subject to Section 7(e)
hereof), make adequate provision to substitute
for the Adjustment Shares, upon the exercise of
a Right and payment of the applicable Purchase
Price, (1) cash, (2) a reduction in the
Purchase Price, (3) Common Stock or other
equity securities of the Company (including,
without limitation, shares, or units of shares,
of preferred stock which the Board has deemed
to have the same value as shares of Common
Stock (such shares of preferred stock being
referred to as "common stock equivalents")),
(4) debt securities of the Company, (5) other
assets, or (6) any combination of the
foregoing, having an aggregate value equal to
the Current Value, where such aggregate value
has been determined by the Board based upon the
advice of a nationally recognized investment
banking firm selected by the Board; provided,
however, that if the Company shall not have
made adequate provision to deliver value
pursuant to clause (B) above within thirty (30)
days following the later of (x) the first
occurrence of a Section 11(a)(ii) Event and (y)
the date on which the Company's right of
redemption pursuant to Section 23(a) expires
(the later of (x) and (y) being referred to
herein as the "Section 11(a)(ii) Trigger
Date"), then the Company shall be obligated to
deliver, upon the surrender for exercise of a
Right and without requiring payment of the
Purchase Price, shares of Common Stock (to the
extent available) and then, if necessary, cash,
which shares and/or cash have an aggregate
value equal to the Spread. If the Board shall
determine in good faith that it is likely that
sufficient additional shares of Common Stock
could be authorized for issuance upon exercise
in full of the Rights, the thirty (30) day
period set forth above may be extended to the
extent necessary, but not more than ninety (90)
days after the Section 11(a)(ii) Trigger Date,
in order that the Company may seek shareholder
approval for the authorization of such
additional shares (such period, as it may be
extended, the "Substitution Period"). To the
extent that the Company determines that some
action need be taken pursuant to the first
and/or second sentences of this Section
11(a)(iii), the Company (x) shall provide,
subject to Section 7(e) hereof, that such
action shall apply uniformly to all outstanding
Rights, and (y) may suspend the exercisability
of the Rights until the expiration of the
Substitution Period in order to seek any
authorization of additional shares and/or to
decide the appropriate form of distribution to
be made pursuant to such first sentence and to
determine the value thereof. In the event of
any such suspension, the Company shall issue a
public announcement stating that the
exercisability of the Rights has been
temporarily suspended, as well as a public
announcement at such time as the suspension is
no longer in effect. For purposes of this
Section 11(a)(iii), the value of the Common
Stock shall be the current market price (as
determined pursuant to Section 11(d) hereof)
per share of the Common Stock on the Section
11(a)(ii) Trigger Date and the value of any
"common stock equivalent" shall be deemed to
have the same value as the Common Stock on such
date. Notwithstanding the foregoing provisions
of this subparagraph (iii), in the event that,
pursuant to this subparagraph (iii), upon the
exercise of the Rights the Company shall be
required to deliver value in any form other
than shares of Common Stock, such value shall
be delivered only to the extent and at the time
that, if required, the approval by appropriate
financial regulatory authorities with
supervisory jurisdiction over the Company and
its financial Subsidiaries of such delivery of
such value shall have been obtained.
(b) In case the Company shall fix a
record date for the issuance of rights, options or
warrants to all holders of Preferred Stock entitling them
to subscribe for or purchase (for a period expiring
within forty-five (45) calendar days after such record
date) Preferred Stock (or shares having the same rights,
privileges and preferences as the shares of Preferred
Stock ("equivalent preferred stock")) or securities
convertible into Preferred Stock or equivalent preferred
stock at a price per share of Preferred Stock or per
share of equivalent preferred stock (or having a
conversion price per share, if a security convertible
into Preferred Stock or equivalent preferred stock) less
than the current market price (as determined pursuant to
Section 11(d) hereof) per share of Preferred Stock on
such record date, the Purchase Price to be in effect
after such record date shall be determined by multiplying
the Purchase Price in effect immediately prior to such
record date by a fraction, the numerator of which shall
be the number of shares of Preferred Stock outstanding on
such record date, plus the number of shares of Preferred
Stock which the aggregate offering price of the total
number of shares of Preferred Stock and/or equivalent
preferred stock so to be offered (and/or the aggregate
initial conversion price of the convertible securities so
to be offered) would purchase at such current market
price, and the denominator of which shall be the number
of shares of Preferred Stock outstanding on such record
date, plus the number of additional shares of Preferred
Stock and/or equivalent preferred stock to be offered for
subscription or purchase (or into which the convertible
securities so to be offered are initially convertible).
In case such subscription price may be paid by delivery
of consideration part or all of which may be in a form
other than cash, the value of such consideration shall be
as determined in good faith by the Board, whose
determination shall be described in a statement filed
with the Rights Agent and shall be binding on the Rights
Agent and the holders of the Rights. Shares of Preferred
Stock owned by or held for the account of the Company
shall not be deemed outstanding for the purpose of any
such computation. Such adjustment shall be made
successively whenever such a record date is fixed, and in
the event that such rights or warrants are not so issued,
the Purchase Price shall be adjusted to be the Purchase
Price which would then be in effect if such record date
had not been fixed.
(c) In case the Company shall fix a
record date for a distribution to all holders of
Preferred Stock (including any such distribution made in
connection with a consolidation or merger in which the
Company is the continuing corporation) of evidences of
indebtedness, cash (other than a regular quarterly cash
dividend out of the earnings or retained earnings of the
Company), assets (other than a dividend payable in
Preferred Stock, but including any dividend payable in
stock other than Preferred Stock) or subscription rights
or warrants (excluding those referred to in Section 11(b)
hereof), the Purchase Price to be in effect after such
record date shall be determined by multiplying the
Purchase Price in effect immediately prior to such record
date by a fraction, the numerator of which shall be the
current market price (as determined pursuant to Section
11(d) hereof) per share of Preferred Stock on such record
date, less the fair market value (as determined in good
faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed
with the Rights Agent) of the portion of the cash, assets
or evidences of indebtedness so to be distributed or of
such subscription rights or warrants applicable to a
share of Preferred Stock and the denominator of which
shall be such current market price (as determined
pursuant to Section 11(d) hereof) per share of Preferred
Stock. Such adjustments shall be made successively
whenever such a record date is fixed, and in the event
that such distribution is not so made, the Purchase Price
shall be adjusted to be the Purchase Price which would
have been in effect if such record date had not been
fixed.
(d)(i) For the purpose of any computation
hereunder, other than computations made pursuant to
Section 11(a)(iii) hereof, the "current market price" per
share of Common Stock on any date shall be deemed to be
the average of the daily closing prices per share of such
Common Stock for the thirty (30) consecutive Trading Days
(as such term is hereinafter defined) immediately prior
to such date, and for purposes of computations made
pursuant to Section 11(a)(iii) hereof, the "current
market price" per share of Common Stock on any date shall
be deemed to be the average of the daily closing prices
per share of such Common Stock for the ten (10)
consecutive Trading Days immediately following such date;
provided, however, that in the event that the current
market price per share of the Common Stock is determined
during a period following the announcement by the issuer
of such Common Stock of (A) a dividend or distribution on
such Common Stock payable in shares of such Common Stock
or securities convertible into shares of such Common
Stock (other than the Rights), or (B) any subdivision,
combination or reclassification of such Common Stock, and
prior to the expiration of the requisite thirty (30)
Trading Day or ten (10) Trading Day period, as set forth
above, after the ex-dividend date for such dividend or
distribution, or the record date for such subdivision,
combination or reclassification, then, and in each such
case, the "current market price" shall be properly
adjusted to take into account ex-dividend trading. The
closing price for each day shall be the last sale price,
regular way, or, in case no such sale takes place on such
day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York
Stock Exchange or, if the shares of Common Stock are not
listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities
listed on the principal national securities exchange on
which the shares of Common Stock are listed or admitted
to trading or, if the shares of Common Stock are not
listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the
average of the high bid and low asked prices in the
over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated
Quotation System ("NASDAQ") or such other system then in
use, or, if on any such date the shares of Common Stock
are not quoted by any such organization, the average of
the closing bid and asked prices as furnished by a
professional market maker making a market in the Common
Stock selected by the Board. If on any such date no
market maker is making a market in the Common Stock, the
fair value of such shares on such date as determined in
good faith by the Board shall be used. The term "Trading
Day" shall mean a day on which the principal national
securities exchange on which the shares of Common Stock
are listed or admitted to trading is open for the
transaction of business or, if the shares of Common Stock
are not listed or admitted to trading on any national
securities exchange, a Business Day. If the Common Stock
is not publicly held or not so listed or traded, "current
market price" per share shall mean the fair value per
share as determined in good faith by the Board, whose
determination shall be described in a statement filed
with the Rights Agent and shall be conclusive for all
purposes.
(ii) For the purpose of any computation
hereunder, the "current market price" per share of
Preferred Stock shall be determined in the same manner as
set forth above for the Common Stock in clause (i) of
this Section 11(d) (other than the last sentence
thereof). If the "current market price" per share of
Preferred Stock cannot be determined in the manner
provided above or if the Preferred Stock is not publicly
held or listed or traded in a manner described in clause
(i) of this Section 11(d), the "current market price" per
share of Preferred Stock shall be conclusively deemed to
be an amount equal to 100 (as such number may be
appropriately adjusted for such events as stock splits,
stock dividends and recapitalizations with respect to the
Common Stock occurring after the date of this Agreement)
multiplied by the current market price per share of the
Common Stock. If neither the Common Stock nor the
Preferred Stock is publicly held or so listed or traded,
"current market price" per share of the Preferred Stock
shall mean the fair value per share as determined in good
faith by the Board, whose determination shall be
described in a statement filed with the Rights Agent and
shall be conclusive for all purposes. For all purposes
of this Agreement, the "current market price" of one one-
hundredth of a share of Preferred Stock shall be equal to
the "current market price" of one share of Preferred
Stock divided by 100.
(e) Anything herein to the contrary
notwithstanding, no adjustment in the Purchase Price
shall be required unless such adjustment would require an
increase or decrease of at least one percent (1%) in the
Purchase Price; provided, however, that any adjustments
which by reason of this Section 11(e) are not required to
be made shall be carried forward and taken into account
in any subsequent adjustment. All calculations under
this Section 11 shall be made to the nearest cent or to
the nearest ten-thousandth of a share of Common Stock or
other share or one-millionth of a share of Preferred
Stock, as the case may be. Notwithstanding the first
sentence of this Section 11(e), any adjustment required
by this Section 11 shall be made no later than the
earlier of (i) three (3) years from the date of the
transaction which mandates such adjustment, or (ii) the
Expiration Date.
(f) If as a result of an adjustment made
pursuant to Section 11(a)(ii) or Section 13(a) hereof,
the holder of any Right thereafter exercised shall become
entitled to receive any shares of capital stock other
than Preferred Stock, thereafter the number of such other
shares so receivable upon exercise of any Right and the
Purchase Price thereof shall be subject to adjustment
from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect
to the Preferred Stock contained in Sections 11(a), (b),
(c), (e), (g), (h), (i), (j), (k) and (m), and the
provisions of Sections 7, 9, 10, 13 and 14 hereof with
respect to the Preferred Stock shall apply on like terms
to any such other shares.
(g) All Rights originally issued by the
Company subsequent to any adjustment made to the Purchase
Price hereunder shall evidence the right to purchase, at
the adjusted Purchase Price, the number of one
one-hundredths of a share of Preferred Stock purchasable
from time to time hereunder upon exercise of the Rights,
all subject to further adjustment as provided herein.
(h) Unless the Company shall have
exercised its election as provided in Section 11(i), upon
each adjustment of the Purchase Price as a result of the
calculations made in Sections 11(b) and (c), each Right
outstanding immediately prior to the making of such
adjustment shall thereafter evidence the right to
purchase, at the adjusted Purchase Price, that number of
one one-hundredths of a share of Preferred Stock
(calculated to the nearest one-millionth) obtained by (i)
multiplying (x) the number of one one-hundredths of a
share covered by a Right immediately prior to this
adjustment, by (y) the Purchase Price in effect
immediately prior to such adjustment of the Purchase
Price, and (ii) dividing the product so obtained by the
Purchase Price in effect immediately after such
adjustment of the Purchase Price.
(i) The Company may elect on or after the
date of any adjustment of the Purchase Price to adjust
the number of Rights, in lieu of any adjustment in the
number of one one-hundredths of a share of Preferred
Stock purchasable upon the exercise of a Right. Each of
the Rights outstanding after the adjustment in the number
of Rights shall be exercisable for the number of one
one-hundredths of a share of Preferred Stock for which a
Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such
adjustment of the number of Rights shall become that
number of Rights (calculated to the nearest
one-ten-thousandth) obtained by dividing the Purchase
Price in effect immediately prior to adjustment of the
Purchase Price by the Purchase Price in effect
immediately after adjustment of the Purchase Price. The
Company shall make a public announcement of its election
to adjust the number of Rights, indicating the record
date for the adjustment, and, if known at the time, the
amount of the adjustment to be made. This record date
may be the date on which the Purchase Price is adjusted
or any day thereafter, but, if the Rights Certificates
have been issued, shall be at least ten (10) days later
than the date of the public announcement. If Rights
Certificates have been issued, upon each adjustment of
the number of Rights pursuant to this Section 11(i), the
Company shall, as promptly as practicable, cause to be
distributed to holders of record of Rights Certificates
on such record date Rights Certificates evidencing,
subject to Section 14 hereof, the additional Rights to
which such holders shall be entitled as a result of such
adjustment, or, at the option of the Company, shall cause
to be distributed to such holders of record in
substitution and replacement for the Rights Certificates
held by such holders prior to the date of adjustment, and
upon surrender thereof, if required by the Company, new
Rights Certificates evidencing all the Rights to which
such holders shall be entitled after such adjustment.
Rights Certificates so to be distributed shall be issued,
executed and countersigned in the manner provided for
herein (and may bear, at the option of the Company, the
adjusted Purchase Price) and shall be registered in the
names of the holders of record of Rights Certificates on
the record date specified in the public announcement.
(j) Irrespective of any adjustment or
change in the Purchase Price or the number of one one-
hundredths of a share of Preferred Stock issuable upon
the exercise of the Rights, the Rights Certificates
theretofore and thereafter issued may continue to express
the Purchase Price per one one-hundredth of a share and
the number of one one-hundredths of a share which were
expressed in the initial Rights Certificates issued
hereunder.
(k) Before taking any action that would
cause an adjustment reducing the Purchase Price below the
then stated value, if any, of the number of one
one-hundredths of a share of Preferred Stock issuable
upon exercise of the Rights, the Company shall take any
corporate action which may, in the opinion of its
counsel, be necessary in order that the Company may
validly and legally issue fully paid and nonassessable
such number of one one-hundredths of a share of Preferred
Stock at such adjusted Purchase Price.
(l) In any case in which this Section 11
shall require that an adjustment in the Purchase Price be
made effective as of a record date for a specified event,
the Company may elect to defer until the occurrence of
such event the issuance to the holder of any Right
exercised after such record date the number of one one-
hundredths of a share of Preferred Stock and other
capital stock or securities of the Company, if any,
issuable upon such exercise over and above the number of
one one-hundredths of a share of Preferred Stock and
other capital stock or securities of the Company, if any,
issuable upon such exercise on the basis of the Purchase
Price in effect prior to such adjustment; provided,
however, that the Company shall deliver to such holder a
due bill or other appropriate instrument evidencing such
holder's right to receive such additional shares
(fractional or otherwise) or securities upon the
occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the
contrary notwithstanding, the Company shall be entitled
to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this
Section 11, as and to the extent that in its good faith
judgment the Board shall determine to be advisable in
order that any (i) consolidation or subdivision of the
Preferred Stock, (ii) issuance wholly for cash of any
shares of Preferred Stock at less than the current market
price, (iii) issuance wholly for cash of shares of
Preferred Stock or securities which by their terms are
convertible into or exchangeable for shares of Preferred
Stock, (iv) stock dividends or (v) issuance of rights,
options or warrants referred to in this Section 11,
hereafter made by the Company to holders of its Preferred
Stock shall not be taxable to such stockholders.
(n) The Company covenants and agrees that
it shall not, at any time after the Distribution Date,
(i) consolidate with any other Person (other than a
Subsidiary of the Company in a transaction which complies
with Section 11(o) hereof), (ii) merge with or into any
other Person (other than a Subsidiary of the Company in a
transaction which complies with Section 11(o) hereof), or
(iii) sell or transfer (or permit any Subsidiary to sell
or transfer), in one transaction, or a series of related
transactions, assets or earning power aggregating more
than 50% of the assets or earning power of the Company
and its Subsidiaries (taken as a whole) to any other
Person or Persons (other than the Company and/or any of
its Subsidiaries in one or more transactions each of
which complies with Section 11(o) hereof), if (x) at the
time of or immediately after such consolidation, merger
or sale there are any rights, warrants or other
instruments or securities outstanding or agreements in
effect which would substantially diminish or otherwise
eliminate the benefits intended to be afforded by the
Rights or (y) prior to, simultaneously with or
immediately after such consolidation, merger or sale, the
shareholders of the Person who constitutes, or would
constitute, the "Principal Party" for purposes of Section
13(a) hereof shall have received a distribution of Rights
previously owned by such Person or any of its Affiliates
and Associates.
(o) The Company covenants and agrees
that, after the Distribution Date, it will not, except as
permitted by Section 23 or Section 26 hereof, take (or
permit any Subsidiary to take) any action if at the time
such action is taken it is reasonably foreseeable that
such action will diminish substantially or otherwise
eliminate the benefits intended to be afforded by the
Rights.
(p) Anything in this Agreement to the
contrary notwithstanding, in the event that the Company
shall at any time after the Rights Dividend Declaration
Date and prior to the Distribution Date (i) declare a
dividend on the outstanding shares of Common Stock
payable in shares of Common Stock, (ii) subdivide the
outstanding shares of Common Stock, or (iii) combine the
outstanding shares of Common Stock into a smaller number
of shares, the number of Rights associated with each
share of Common Stock then outstanding, or issued or
delivered thereafter but prior to the Distribution Date,
shall be proportionately adjusted so that the number of
Rights thereafter associated with each share of Common
Stock following any such event shall equal the result
obtained by multiplying the number of Rights associated
with each share of Common Stock immediately prior to such
event by a fraction the numerator of which shall be the
total number of shares of Common Stock outstanding
immediately prior to the occurrence of the event and the
denominator of which shall be the total number of shares
of Common Stock outstanding immediately following the
occurrence of such event.
Section 12. Certificate of Adjusted Purchase
Price or Number of Shares. Whenever an adjustment is
made as provided in Section 11 and Section 13 hereof, the
Company shall (a) promptly prepare a certificate setting
forth such adjustment and a brief statement of the facts
accounting for such adjustment, (b) promptly file with
the Rights Agent, and with each transfer agent for the
Preferred Stock and the Common Stock, a copy of such
certificate, and (c) mail a brief summary thereof to each
holder of a Rights Certificate (or, if prior to the
Distribution Date, to each holder of a certificate
representing shares of Common Stock) in accordance with
Section 25 hereof. The Rights Agent shall be fully
protected in relying on any such certificate and on any
adjustment therein contained.
Section 13. Consolidation, Merger or Sale or
Transfer of Assets or Earning Power.
(a) In the event that, following the
Stock Acquisition Date, directly or indirectly, (x) the
Company shall consolidate with, or merge with and into,
any other Person (other than a Subsidiary of the Company
in a transaction which complies with Section 11(o)
hereof), and the Company shall not be the continuing or
surviving corporation of such consolidation or merger,
(y) any Person (other than a Subsidiary of the Company in
a transaction which complies with Section 11(o) hereof)
shall consolidate with, or merge with or into, the
Company, and the Company shall be the continuing or
surviving corporation of such consolidation or merger
and, in connection with such consolidation or merger, all
or part of the outstanding shares of Common Stock shall
be changed into or exchanged for stock or other
securities of any other Person or cash or any other
property, or (z) the Company shall sell or otherwise
transfer (or one or more of its Subsidiaries shall sell
or otherwise transfer), in one transaction or a series of
related transactions, assets or earning power aggregating
more than 50% of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to any
Person or Persons (other than the Company or any
Subsidiary of the Company in one or more transactions
each of which complies with Section 11(o) hereof), then,
and in each such case (except as may be contemplated by
Section 13(d) hereof) proper provision shall be made so
that: (i) each holder of a Right, except as provided in
Section 7(e) hereof, shall thereafter have the right to
receive, upon the exercise thereof at the then current
Purchase Price in accordance with the terms of this
Agreement, such number of validly authorized and issued,
fully paid, non-assessable and freely tradeable shares of
Common Stock of the Principal Party (as such term is
hereinafter defined), not subject to any liens,
encumbrances, rights of first refusal or other adverse
claims, as shall be equal to the result obtained by (1)
multiplying the then current Purchase Price by the number
of one one-hundredths of a share of Preferred Stock for
which a Right is exercisable immediately prior to the
first occurrence of a Section 13 Event (or, if a Section
11(a)(ii) Event has occurred prior to the first
occurrence of a Section 13 Event, multiplying the number
of such one one-hundredths of a share for which a Right
was exercisable immediately prior to the first occurrence
of a Section 11(a)(ii) Event by the Purchase Price in
effect immediately prior to such first occurrence), and
dividing that product (which, following the first
occurrence of a Section 13 Event, shall be referred to as
the "Purchase Price" for each Right and for all purposes
of this Agreement) by (2) 50% of the current market price
(determined pursuant to Section 11(d)(i) hereof) per
share of the Common Stock of such Principal Party on the
date of consummation of such Section 13 Event; (ii) such
Principal Party shall thereafter be liable for, and shall
assume, by virtue of such Section 13 Event, all the
obligations and duties of the Company pursuant to this
Agreement; (iii) the term "Company" shall thereafter be
deemed to refer to such Principal Party, it being
specifically intended that the provisions of Section 11
hereof shall apply only to such Principal Party following
the first occurrence of a Section 13 Event; (iv) such
Principal Party shall take such steps (including, but not
limited to, the reservation of a sufficient number of
shares of its Common Stock) in connection with the
consummation of any such transaction as may be necessary
to assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be, in relation
to its shares of Common Stock thereafter deliverable upon
the exercise of the Rights; and (v) the provisions of
Section 11(a)(ii) hereof shall be of no effect following
the first occurrence of any Section 13 Event.
(b) "Principal Party" shall mean:
(i) in the case of any
transaction described in clause (x) or (y) of
the first sentence of Section 13(a), the Person
that is the issuer of any securities into which
shares of Common Stock of the Company are
converted in such merger or consolidation, and
if no securities are so issued, the Person that
is the other party to such merger or
consolidation; and
(ii) in the case of any
transaction described in clause (z) of the
first sentence of Section 13(a), the Person
that is the party receiving the greatest
portion of the assets or earning power
transferred pursuant to such transaction or
transactions;
provided, however, that in any such case, (1) if the
Common Stock of such Person is not at such time and has
not been continuously over the preceding twelve (12)
month period registered under Section 12 of the Exchange
Act, and such Person is a direct or indirect Subsidiary
of another Person the Common Stock of which is and has
been so registered, "Principal Party" shall refer to such
other Person; and (2) in case such Person is a
Subsidiary, directly or indirectly, of more than one
Person, the Common Stocks of two or more of which are and
have been so registered, "Principal Party" shall refer to
whichever of such Persons is the issuer of the Common
Stock having the greatest aggregate market value.
(c) The Company shall not consummate any
such consolidation, merger, sale or transfer unless the
Principal Party shall have a sufficient number of
authorized shares of its Common Stock which have not been
issued or reserved for issuance to permit the exercise in
full of the Rights in accordance with this Section 13 and
unless prior thereto the Company and such Principal Party
shall have executed and delivered to the Rights Agent a
supplemental agreement providing for the terms set forth
in paragraphs (a) and (b) of this Section 13 and further
providing that, as soon as practicable after the date of
any consolidation, merger or sale of assets mentioned in
paragraph (a) of this Section 13, the Principal Party
will:
(i) prepare and file a
registration statement under the Act, with
respect to the Rights and the securities
purchasable upon exercise of the Rights on an
appropriate form, and will use its best efforts
to cause such registration statement to (A)
become effective as soon as practicable after
such filing and (B) remain effective (with a
prospectus at all times meeting the
requirements of the Act) until the Expiration
Date; and
(ii) will deliver to holders of
the Rights historical financial statements for
the Principal Party and each of its Affiliates
which comply in all respects with the
requirements for registration on Form 10 under
the Exchange Act.
The provisions of this Section 13 shall similarly apply
to successive mergers or consolidations or sales or other
transfers. In the event that a Section 13 Event shall
occur at any time after the occurrence of a Section
11(a)(ii) Event, the Rights which have not theretofore
been exercised shall thereafter become exercisable in the
manner described in Section 13(a).
(d) Notwithstanding anything in this
Agreement to the contrary, this Section 13 shall not be
applicable to a transaction described in subparagraphs
(x) and (y) of Section 13(a) if (i) such transaction is
consummated with a Person or Persons who acquired shares
of Common Stock pursuant to a Qualifying Offer (or a
wholly owned subsidiary of any such Person or Persons),
(ii) the price per share of Common Stock offered in such
transaction is not less than the price per share of
Common Stock paid to all holders of shares of Common
Stock whose shares were purchased pursuant to such
Qualifying Offer and (iii) the form of consideration
being offered to the remaining holders of shares of
Common Stock pursuant to such transaction is the same as
the form of consideration paid pursuant to such
Qualifying Offer. Upon consummation of any such
transaction contemplated by this Section 13(d), all
Rights hereunder shall expire.
Section 14. Fractional Rights and Fractional
Shares.
(a) The Company shall not be required to
issue fractions of Rights, except prior to the
Distribution Date as provided in Section 11(p) hereof, or
to distribute Rights Certificates which evidence
fractional Rights. In lieu of such fractional Rights,
there shall be paid to the registered holders of the
Rights Certificates with regard to which such fractional
Rights would otherwise be issuable, an amount in cash
equal to the same fraction of the current market value of
a whole Right. For purposes of this Section 14(a), the
current market value of a whole Right shall be the
closing price of the Rights for the Trading Day
immediately prior to the date on which such fractional
Rights would have been otherwise issuable. The closing
price of the Rights for any day shall be the last sale
price, regular way, or, in case no such sale takes place
on such day, the average of the closing bid and asked
prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on
the New York Stock Exchange or, if the Rights are not
listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities
listed on the principal national securities exchange on
which the Rights are listed or admitted to trading, or if
the Rights are not listed or admitted to trading on any
national securities exchange, the last quoted price or,
if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported
by NASDAQ or such other system then in use or, if on any
such date the Rights are not quoted by any such
organization, the average of the closing bid and asked
prices as furnished by a professional market maker making
a market in the Rights selected by the Board of Directors
of the Company. If on any such date no such market maker
is making a market in the Rights the fair value of the
Rights on such date as determined in good faith by the
Board of Directors of the Company shall be used.
(b) The Company shall not be required to
issue fractions of shares of Preferred Stock (other than
fractions which are integral multiples of one
one-hundredth of a share of Preferred Stock) upon
exercise of the Rights or to distribute certificates
which evidence fractional shares of Preferred Stock
(other than fractions which are integral multiples of one
one-hundredth of a share of Preferred Stock). In lieu of
fractional shares of Preferred Stock that are not
integral multiples of one one-hundredth of a share of
Preferred Stock, the Company may pay to the registered
holders of Rights Certificates at the time such Rights
are exercised as herein provided an amount in cash equal
to the same fraction of the current market value of one
one-hundredth of a share of Preferred Stock. For
purposes of this Section 14(b), the current market value
of one one-hundredth of a share of Preferred Stock shall
be one one-hundredth of the closing price of a share of
Preferred Stock (as determined pursuant to Section
11(d)(ii) hereof) for the Trading Day immediately prior
to the date of such exercise.
(c) Following the occurrence of a
Triggering Event, the Company shall not be required to
issue fractions of shares of Common Stock upon exercise
of the Rights or to distribute certificates which
evidence fractional shares of Common Stock. In lieu of
fractional shares of Common Stock, the Company may pay to
the registered holders of Rights Certificates at the time
such Rights are exercised as herein provided an amount in
cash equal to the same fraction of the current market
value of one (1) share of Common Stock. For purposes of
this Section 14(c), the current market value of one share
of Common Stock shall be the closing price of one share
of Common Stock (as determined pursuant to Section
11(d)(i) hereof) for the Trading Day immediately prior to
the date of such exercise.
(d) The holder of a Right by the
acceptance of the Rights expressly waives his right to
receive any fractional Rights or any fractional shares
upon exercise of a Right, except as permitted by this
Section 14.
Section 15. Rights of Action. All rights of
action in respect of this Agreement are vested in the
respective registered holders of the Rights Certificates
(and, prior to the Distribution Date, the registered
holders of the Common Stock); and any registered holder
of any Rights Certificate (or, prior to the Distribution
Date, of the Common Stock), without the consent of the
Rights Agent or of the holder of any other Rights
Certificate (or, prior to the Distribution Date, of the
Common Stock), may, in his own behalf and for his own
benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Company to
enforce, or otherwise act in respect of, his right to
exercise the Rights evidenced by such Rights Certificate
in the manner provided in such Rights Certificate and in
this Agreement. Without limiting the foregoing or any
remedies available to the holders of Rights, it is
specifically acknowledged that the holders of Rights
would not have an adequate remedy at law for any breach
of this Agreement and shall be entitled to specific
performance of the obligations hereunder and injunctive
relief against actual or threatened violations of the
obligations hereunder of any Person subject to this
Agreement.
Section 16. Agreement of Rights Holders.
Every holder of a Right by accepting the same consents
and agrees with the Company and the Rights Agent and with
every other holder of a Right that:
(a) prior to the Distribution Date, the
Rights will be transferable only in connection with the
transfer of Common Stock;
(b) after the Distribution Date, the
Rights Certificates are transferable only on the registry
books of the Rights Agent if surrendered at the principal
office or offices of the Rights Agent designated for such
purposes, duly endorsed or accompanied by a proper
instrument of transfer and with the appropriate forms and
certificates fully executed;
(c) subject to Section 6(a) and Section
7(f) hereof, the Company and the Rights Agent may deem
and treat the person in whose name a Rights Certificate
(or, prior to the Distribution Date, the associated
Common Stock certificate) is registered as the absolute
owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing on
the Rights Certificates or the associated Common Stock
certificate made by anyone other than the Company or the
Rights Agent) for all purposes whatsoever, and neither
the Company nor the Rights Agent, subject to the last
sentence of Section 7(e) hereof, shall be required to be
affected by any notice to the contrary; and
(d) notwithstanding anything in this
Agreement to the contrary, neither the Company nor the
Rights Agent shall have any liability to any holder of a
Right or other Person as a result of its inability to
perform any of its obligations under this Agreement by
reason of any preliminary or permanent injunction or
other order, decree or ruling issued by a court of
competent jurisdiction or by a governmental, regulatory
or administrative agency or commission, or any statute,
rule, regulation or executive order promulgated or
enacted by any governmental authority, prohibiting or
otherwise restraining performance of such obligation;
provided, however, the Company must use its best efforts
to have any such order, decree or ruling lifted or
otherwise overturned as soon as possible.
Section 17. Rights Certificate Holder Not
Deemed a Stockholder. No holder, as such, of any Rights
Certificate shall be entitled to vote, receive dividends
or be deemed for any purpose the holder of the number of
one one-hundredths of a share of Preferred Stock or any
other securities of the Company which may at any time be
issuable on the exercise of the Rights represented
thereby, nor shall anything contained herein or in any
Rights Certificate be construed to confer upon the holder
of any Rights Certificate, as such, any of the rights of
a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive
notice of meetings or other actions affecting
stockholders (except as provided in Section 24 hereof),
or to receive dividends or subscription rights, or
otherwise, until the Right or Rights evidenced by such
Rights Certificate shall have been exercised in
accordance with the provisions hereof.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the
Rights Agent reasonable compensation for all services
rendered by it hereunder and, from time to time, on
demand of the Rights Agent, its reasonable expenses and
counsel fees and disbursements and other disbursements
incurred in the administration and execution of this
Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the
Rights Agent for, and to hold it harmless against, any
loss, liability, or expense, incurred without negligence,
bad faith or willful misconduct on the part of the Rights
Agent, for anything done or omitted by the Rights Agent
in connection with the acceptance and administration of
this Agreement, including the costs and expenses of
defending against any claim of liability in the premises.
(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 Rights Certificate or certificate for Common
Stock or for other securities of the Company, instrument
of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction,
consent, certificate, statement, or other paper or
document believed by it to be genuine and to be signed,
executed and, where necessary, verified or acknowledged,
by the proper Person or Persons.
Section 19. 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 shall be a
party, or any corporation succeeding to the corporate
trust or stock transfer business of the Rights Agent or
any successor Rights Agent, shall be the successor to the
Rights Agent under this Agreement without the execution
or filing of any paper or any further act on the part of
any of the parties hereto; provided, however, that such
corporation would be eligible for appointment as a
successor Rights Agent under the provisions of Section 21
hereof. In case at the time such successor Rights Agent
shall succeed to the agency created by this Agreement,
any of the Rights Certificates shall have been
countersigned but not delivered, any such successor
Rights Agent may adopt the countersignature of a
predecessor Rights Agent and deliver such Rights
Certificates so countersigned; and in case at that time
any of the Rights Certificates shall not have been
countersigned, any successor Rights Agent may countersign
such Rights Certificates either in the name of the
predecessor or in the name of the successor Rights Agent;
and in all such cases such Rights Certificates shall have
the full force provided in the Rights Certificates and in
this Agreement.
(b) In case at any time the name of the
Rights Agent shall be changed and at such time any of the
Rights Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Rights
Certificates so countersigned; and in case at that time
any of the Rights Certificates shall not have been
countersigned, the Rights Agent may countersign such
Rights Certificates either in its prior name or in its
changed name; and in all such cases such Rights
Certificates shall have the full force provided in the
Rights Certificates and in this Agreement.
Section 20. 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 shall be full and
complete authorization and protection to the Rights Agent
as to any action taken or omitted by it in good faith and
in accordance with such opinion.
(b) Whenever in the performance of its
duties under this Agreement the Rights Agent shall deem
it necessary or desirable that any fact or matter
(including, without limitation, the identity of any
Acquiring Person and the determination of "current market
price") be proved or established by the Company prior to
taking or suffering any action hereunder, such fact or
matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be
conclusively proved and established by a certificate
signed by the Chairman of the Board, the President, any
Vice President, the Treasurer, any Assistant Treasurer,
the Secretary or any Assistant Secretary of the Company
and delivered to the Rights Agent; and such certificate
shall be full authorization to the Rights Agent for any
action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such
certificate.
(c) The Rights Agent shall be liable
hereunder only for its own negligence, bad faith or
willful misconduct.
(d) The Rights Agent shall not be liable
for or by reason of any of the statements of fact or
recitals contained in this Agreement or in the Rights
Certificates or be required to verify the same (except as
to its countersignature on such Rights Certificates), but
all such statements and recitals are and shall be deemed
to have been made by the Company only.
(e) The Rights Agent shall not be under
any responsibility in respect of the validity of this
Agreement or the execution and delivery hereof (except
the due execution hereof by the Rights Agent) or in
respect of the validity or execution of any Rights
Certificate (except its countersignature thereof); nor
shall it be responsible for any breach by the Company of
any covenant or condition contained in this Agreement or
in any Rights Certificate; nor shall it be responsible
for any adjustment required under the provisions of
Section 11 or Section 13 hereof or responsible for the
manner, method or amount of any such adjustment or the
ascertaining of the existence of facts that would require
any such adjustment (except with respect to the exercise
of Rights evidenced by Rights Certificates after actual
notice of any such adjustment); nor shall it by any act
hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any
shares of Common Stock or Preferred Stock to be issued
pursuant to this Agreement or any Rights Certificate or
as to whether any shares of Common Stock or Preferred
Stock will, when so issued, be validly authorized and
issued, fully paid and nonassessable.
(f) The Company agrees that it will
perform, execute, acknowledge and deliver or cause to be
performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may
reasonably be required by the Rights Agent for the
carrying out or performing by the Rights Agent of the
provisions of this Agreement.
(g) The Rights Agent is hereby authorized
and directed to accept instructions with respect to the
performance of its duties hereunder from the Chairman of
the Board, the Vice Chairman, the President, any Vice
President, the Secretary, any Assistant Secretary, the
Treasurer or any Assistant Treasurer of the Company, and
to apply to such officers for advice or instructions in
connection with its duties, and it shall not be liable
for any action taken or suffered to be taken by it in
good faith in accordance with instructions of any such
officer.
(h) The Rights Agent and any stockholder,
director, officer or employee of the Rights Agent may
buy, sell or deal in any of the Rights or other
securities of the Company or become pecuniarily
interested in any transaction in which the Company may be
interested, or contract with or lend money to the Company
or otherwise act as fully and freely as though it were
not Rights Agent under this Agreement. Nothing herein
shall preclude the Rights Agent from acting in any other
capacity for the Company or for any other legal entity.
(i) The Rights Agent may execute and
exercise any of the rights or powers hereby vested in it
or perform any duty hereunder either itself or by or
through its attorneys or agents, and the Rights Agent
shall not be answerable or accountable for any act,
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,
however, reasonable care was exercised in the selection
and continued employment thereof.
(j) No provision of this Agreement shall
require the Rights Agent to expend or risk its own funds
or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the
exercise of its rights if there shall be reasonable
grounds for believing that repayment of such funds or
adequate indemnification against such risk or liability
is not reasonably assured to it.
(k) If, with respect to any Right
Certificate surrendered to the Rights Agent for exercise
or transfer, the certificate attached to the form of
assignment or form of election to purchase, as the case
may be, has either not been completed or indicates an
affirmative response to clause 1 and/or 2 thereof, the
Rights Agent shall not take any further action with
respect to such requested exercise of transfer without
first consulting with the Company.
Section 21. Change of Rights Agent. The
Rights Agent or any successor Rights Agent may resign and
be discharged from its duties under this Agreement upon
thirty (30) days' notice in writing mailed to the
Company, and to each transfer agent of the Common Stock
and Preferred Stock, by registered or certified mail, and
to the holders of the Rights Certificates by first-class
mail. The Company may remove the Rights Agent or any
successor Rights Agent upon thirty (30) days' notice in
writing, mailed to the Rights Agent or successor Rights
Agent, as the case may be, and to each transfer agent of
the Common Stock and Preferred Stock, by registered or
certified mail, and to the holders of the Rights
Certificates by first-class mail. If the Rights Agent
shall resign or be removed or shall otherwise become
incapable of acting, the Company shall appoint a
successor to the Rights Agent. If the Company shall fail
to make such appointment within a period of thirty (30)
days after giving notice of such removal or after it has
been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent
or by the holder of a Rights Certificate (who shall, with
such notice, submit his Rights Certificate for inspection
by the Company), then any registered holder of any Rights
Certificate may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent.
Any successor Rights Agent, whether appointed by the
Company or by such a court, shall be (A) a corporation
organized and doing business under the laws of the United
States or of the State of California or New York (or of
any other state of the United States so long as such
corporation is authorized to do business as a banking
institution in the State of California or New York), in
good standing, having a principal office in the State of
California or New York, which is authorized under such
laws to exercise corporate trust or stock transfer powers
and is subject to supervision or examination by federal
or state authority and which has at the time of its
appointment as Rights Agent a combined capital and
surplus of at least $100,000,000 or (B) an affiliate of a
corporation described in clause (A) immediately above,
which affiliate has a combined capital and surplus of at
least $10,000,000. After appointment, the successor
Rights Agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been
originally named as Rights Agent without further act or
deed; but the predecessor Rights Agent shall deliver and
transfer to the successor Rights Agent any property at
the time held by it hereunder, and execute and deliver
any further assurance, conveyance, act or deed necessary
for the purpose. Not later than the effective date of
any such appointment, the Company shall file notice
thereof in writing with the predecessor Rights Agent and
each transfer agent of the Common Stock and the Preferred
Stock, and mail a notice thereof in writing to the
registered holders of the Rights Certificates. Failure
to give any notice provided for in this Section 21,
however, or any defect therein, shall not affect the
legality or validity of the resignation or removal of the
Rights Agent or the appointment of the successor Rights
Agent, as the case may be.
Section 22. 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 the
Board to reflect any adjustment or change in the Purchase
Price and the number or kind or class of shares or other
securities or property purchasable under the Rights
Certificates made in accordance with the provisions of
this Agreement. In addition, in connection with the
issuance or sale of shares of Common Stock following the
Distribution Date and prior to the redemption or
expiration of the Rights, the Company (a) shall, with
respect to shares of Common Stock so issued or sold
pursuant to the exercise of stock options or under any
employee plan or arrangement, granted or awarded as of
the Distribution Date, or upon the exercise, conversion
or exchange of securities hereinafter issued by the
Company, and (b) may, in any other case, if deemed
necessary or appropriate by the Board, issue Rights
Certificates representing the appropriate number of
Rights in connection with such issuance or sale;
provided, however, that (i) no such Rights Certificate
shall be issued if, and to the extent that, the Company
shall be advised by counsel that such issuance would
create a significant risk of material adverse tax
consequences to the Company or the Person to whom such
Rights Certificate would be issued, and (ii) no such
Rights Certificate shall be issued if, and to the extent
that, appropriate adjustment shall otherwise have been
made in lieu of the issuance thereof.
Section 23. Redemption and Termination.
(a) The Board may, at its option, at any
time prior to the earlier of (i) the close of business on
the tenth business day following the Stock Acquisition
Date (or, if the Stock Acquisition Date shall have
occurred prior to the Record Date, the close of business
on the tenth business day following the Record Date), or
(ii) the Final Expiration Date, redeem all but not less
than all the then outstanding Rights at a redemption
price of $.01 per Right, as such amount may be
appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date
hereof (such redemption price being hereinafter referred
to as the "Redemption Price"); provided, however, that
if, the Board authorizes redemption of the Rights in
either of the circumstances set forth in clauses (i) and
(ii) below, then there must be Continuing Directors then
in office and such authorization shall require the
concurrence of a majority of such Continuing Directors:
(i) such authorization occurs on or after the time a
Person becomes an Acquiring Person or (ii) such
authorization occurs on or after the date of a change
(resulting from a proxy or consent solicitation) in a
majority of the directors in office at the commencement
of such solicitation if any Person who is a participant
in such solicitation has stated (or, if upon the
commencement of such solicitation, a majority of the
Board has determined in good faith) that such Person (or
any of its Affiliates or Associates) intends to take, or
may consider taking, any action which would result in
such Person becoming an Acquiring Person or which would
cause the occurrence of a Triggering Event unless,
concurrent with such solicitation, such Person (or one or
more of its Affiliates or Associates) is making a cash
tender offer pursuant to a Schedule 14D-1 (or any
successor form) filed with the Securities and Exchange
Commission for all outstanding shares of Common Stock not
beneficially owned by such Person (or by its Affiliates
or Associates); provided, further, however, that if
following the occurrence of a Stock Acquisition Date and
following the expiration of the right of redemption
hereunder but prior to any Triggering Event, (i) a Person
who is an Acquiring Person shall have transferred or
otherwise disposed of a number of shares of Common Stock
in one transaction or series of transactions, not
directly or indirectly involving the Company or any of
its Subsidiaries, which did not result in the occurrence
of a Triggering Event such that such Person is thereafter
a Beneficial Owner of less than 15% of the outstanding
shares of Common Stock, (ii) there are no other Persons,
immediately following the occurrence of the event
described in clause (i), who are Acquiring Persons, and
(iii) the Board (with the concurrence of a majority of
the Continuing Directors) shall so approve, then the
right of redemption shall be reinstated and thereafter be
subject to the provisions of this Section 23.
Notwithstanding anything contained in this Agreement to
the contrary, the Rights shall not be exercisable after
the first occurrence of a Section 11(a)(ii) Event until
such time as the Company's right of redemption hereunder
has expired. The Company may, at its option, pay the
Redemption Price in cash, shares of Common Stock (based
on the "current market price," as defined in Section
11(d)(i) hereof, of the Common Stock at the time of
redemption) or any other form of consideration deemed
appropriate by the Board.
(b) Immediately upon the action of the
Board ordering the redemption of the Rights, evidence of
which shall have been filed with the Rights Agent and
without any further action and without any notice, the
right to exercise the Rights will terminate and the only
right thereafter of the holders of Rights shall be to
receive the Redemption Price for each Right so held.
Promptly after the action of the Board ordering the
redemption of the Rights, the Company shall give notice
of such redemption to the Rights Agent and the holders of
the then outstanding Rights by mailing such notice to all
such holders at each holder's last address as it appears
upon the registry books of the Rights Agent or, prior to
the Distribution Date, on the registry books of the
Transfer Agent for the Common Stock. Any notice which is
mailed in the manner herein provided shall be deemed
given, whether or not the holder receives the notice.
Each such notice of redemption will state the method by
which the payment of the Redemption Price will be made.
(c) The Board may, as its option, at any
time on or after the first occurrence of a Section
11(a)(ii) Event (provided, however, that any such action
following the first occurrence of either of the events
set forth in clauses (i) and (ii) of the first proviso to
Section 23(a) hereof shall be effective only if there are
Continuing Directors and shall require the concurrence of
a majority of the Continuing Directors), exchange all or
part of the then outstanding and exercisable Rights
(which shall not include Rights that have become void
pursuant to the provisions of Section 7(e) hereof) for
shares of Common Stock at an exchange ratio of one share
of Common Stock per Right, appropriately adjusted to
reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such
exchange ratio being hereinafter referred to as the
"Exchange Ratio").
(d) Immediately upon the action of the
Board ordering the exchange of any Rights pursuant to
subsection (c) of this Section 23 and without any further
action and without any notice, the right to exercise such
Rights shall terminate and the only right thereafter of a
holder of such Rights shall be to receive that number of
shares of Common Stock equal to the number of such Rights
held by such holder multiplied by the Exchange Ratio.
The Company shall promptly give public notice of any such
exchange; provided, however, that the failure to give, or
any defect in, such notice shall not affect the validity
of such exchange. The Company promptly shall mail a
notice of any such exchange to all of the holders of such
Rights at their last addresses as they appear upon the
registry books of the Rights Agent. Any notice which is
mailed in the manner herein provided shall be deemed
given, whether or not the holder receives the notice.
Each such notice of exchange will state the method by
which the exchange of the shares of Common Stock for
Rights will be effected and, in the event of any partial
exchange, the number of Rights which will be exchanged.
Any partial exchange shall be effected pro rata based on
the number of Rights (other than Rights which have become
void pursuant to the provisions of Section 7(e) hereof)
held by each holder of Rights.
(e) In the event that the number of
shares of Common Stock which are authorized by the
Company's Certificate of Incorporation but not
outstanding or reserved for issuance for purposes other
than upon exercise of the Rights are not sufficient to
permit any exchange of Rights as contemplated in
accordance with this Section 23, the Company shall take
all such action as may be necessary to authorize
additional shares of Common Stock for issuance upon
exchange of the Rights.
(f) The Company shall not be required to
issue fractions of shares of Common Stock or to
distribute certificates which evidence fractional shares
of Common Stock. In lieu of such fractional shares of
Common Stock, the Company shall pay to the registered
holders of Rights with regard to which such fractional
shares of Common Stock would otherwise be issuable an
amount in cash equal to the same fraction of the value of
a whole share of Common Stock. For purposes of this
subsection (f), the value of a whole share of Common
Stock shall be the closing price (as determined pursuant
to the provisions of Section 11(d)(i) hereof) for the
Trading Day immediately prior to the date of exchange
pursuant to this Section 23.
Section 24. Notice of Certain Events.
(a) In case the Company shall propose, at
any time after the Distribution Date, (i) to pay any
dividend payable in stock of any class to the holders of
Preferred Stock or to make any other distribution to the
holders of Preferred Stock (other than a regular
quarterly cash dividend out of earnings or retained
earnings of the Company), or (ii) to offer to the holders
of Preferred Stock rights or warrants to subscribe for or
to purchase any additional shares of Preferred Stock or
shares of stock of any class or any other securities,
rights or options, or (iii) to effect any
reclassification of its Preferred Stock (other than a
reclassification involving only the subdivision of
outstanding shares of Preferred Stock), or (iv) to effect
any consolidation or merger into or with any other Person
(other than a Subsidiary of the Company in a transaction
which complies with Section 11(o) hereof), or to effect
any sale or other transfer (or to permit one or more of
its Subsidiaries to effect any sale or other transfer),
in one transaction or a series of related transactions,
of more than 50% of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to any
other Person or Persons (other than the Company and/or
any of its Subsidiaries in one or more transactions each
of which complies with Section 11(o) hereof), or (v) to
effect the liquidation, dissolution or winding up of the
Company, then, in each such case, the Company shall give
to each holder of a Rights Certificate, to the extent
feasible and in accordance with Section 25 hereof, a
notice of such proposed action, which shall specify the
record date for the purposes of such stock dividend,
distribution of rights or warrants, or the date on which
such reclassification, consolidation, merger, sale,
transfer, liquidation, dissolution, or winding up is to
take place and the date of participation therein by the
holders of the shares of Preferred Stock, if any such
date is to be fixed, and such notice shall be so given in
the case of any action covered by clause (i) or (ii)
above at least twenty (20) days prior to the record date
for determining holders of the shares of Preferred Stock
for purposes of such action, and in the case of any such
other action, at least twenty (20) days prior to the date
of the taking of such proposed action or the date of
participation therein by the holders of the shares of
Preferred Stock whichever shall be the earlier.
(b) In case the event set forth in
Section 11(a)(ii) hereof shall occur, then (i) the
Company shall as soon as practicable thereafter give to
each holder of a Rights Certificate, to the extent
feasible and in accordance with Section 25 hereof, a
notice of the occurrence of such event, which shall
specify the event and the consequences of the event to
holders of Rights under Section 11(a)(ii) hereof, and
(ii) all references in the preceding paragraph to
Preferred Stock shall be deemed thereafter to refer to
Common Stock and/or, if appropriate, other securities.
Section 25. Notices. Notices or demands
authorized by this Agreement to be given or made by the
Rights Agent or by the holder of any Rights Certificate
to or on the Company shall be sufficiently given or made
if sent by first-class mail, postage prepaid, addressed
(until another address is filed in writing with the
Rights Agent) as follows:
Great Western Financial Corporation
9200 Oakdale Avenue
Chatsworth, CA 91311-6519
Attention: Corporate Secretary
Subject to the provisions of Section 21, any notice or
demand authorized by this Agreement to be given or made
by the Company or by the holder of any Rights Certificate
to or on the Rights Agent shall be sufficiently given or
made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with
the Company) as follows:
First Chicago Trust Company
of New York
525 Washington Boulevard
Suite 4660
3rd Floor
Jersey City, New Jersey 07310
Attention: Tenders and Exchanges Administration
Notices or demands authorized by this Agreement to be
given or made by the Company or the Rights Agent to the
holder of any Rights Certificate (or, if prior to the
Distribution Date, to the holder of certificates
representing shares of Common Stock) shall be
sufficiently given or made if sent by first-class mail,
postage prepaid, addressed to such holder at the address
of such holder as shown on the registry books of the
Company.
Section 26. Supplements and Amendments. Prior
to the Distribution Date and subject to the penultimate
sentence of this Section 26, the Company and the Rights
Agent shall, if the Company so directs, supplement or
amend any provision of this Agreement without the
approval of any holders of certificates representing
shares of Common Stock. From and after the Distribution
Date and subject to the penultimate sentence of this
Section 26, the Company and the Rights Agent shall, if
the Company so directs, supplement or amend this
Agreement without the approval of any holders of Rights
Certificates in order (i) to cure any ambiguity, (ii) to
correct or supplement any provision contained herein
which may be defective or inconsistent with any other
provisions herein, (iii) to shorten or lengthen any time
period hereunder or (iv) to change or supplement the
provisions hereunder in any manner which the Company may
deem necessary or desirable and which shall not adversely
affect the interests of the holders of Rights
Certificates (other than an Acquiring Person or an
Affiliate or an Associate of an Acquiring Person);
provided, this Agreement may not be supplemented or
amended to lengthen, pursuant to clause (iii) of this
sentence, (A) a time period relating to when the Rights
may be redeemed at such time as the Rights are not then
redeemable, or (B) any other time period unless such
lengthening is for the purpose of protecting, enhancing
or clarifying the rights of, and/or the benefits to, the
holders of Rights. Upon the delivery of a certificate
from an appropriate officer of the Company which states
that the proposed supplement or amendment is in
compliance with the terms of this Section 26, the Rights
Agent shall execute such supplement or amendment.
Notwithstanding anything contained in this Agreement to
the contrary, (i) no supplement or amendment shall be
made which changes the Redemption Price, the Final
Expiration Date, the Purchase Price or the number of one
one-hundredths of a share of Preferred Stock for which a
Right is exercisable and (ii) following the first
occurrence of either of the events set forth in clauses
(i) and (ii) of the first proviso to Section 23(a)
hereof, any amendment to this Agreement pursuant to this
Section 26 shall be effective only if there are
Continuing Directors and shall require the concurrence of
a majority of the Continuing Directors. Prior to the
Distribution Date, the interests of the holders of Rights
shall be deemed coincident with the interests of the
holders of Common Stock.
Section 27. Successors. All the covenants and
provisions of this Agreement by or for the benefit of the
Company or the Rights Agent shall bind and inure to the
benefit of their respective successors and assigns
hereunder.
Section 28. Determinations and Actions by the
Board of Directors, etc. For all purposes of this
Agreement, any calculation of the number of shares of
Common Stock outstanding at any particular time,
including for purposes of determining the particular
percentage of such outstanding shares of Common Stock of
which any Person is the Beneficial Owner, shall be made
in accordance with the last sentence of Rule
13d-3(d)(1)(i) of the General Rules and Regulations under
the Exchange Act. The Board (with, where specifically
provided for herein, the concurrence of the Continuing
Directors) shall have the exclusive power and authority
to administer this Agreement and to exercise all rights
and powers specifically granted to the Board (with, where
specifically provided for herein, the concurrence of the
Continuing Directors) or to the Company, or as may be
necessary or advisable in the administration of this
Agreement, including, without limitation, the right and
power to (i) interpret the provisions of this Agreement,
and (ii) make all determinations deemed necessary or
advisable for the administration of this Agreement
(including a determination to redeem or not redeem the
Rights or to amend the Agreement). All such actions,
calculations, interpretations and determinations
(including, for purposes of clause (y) below, all
omissions with respect to the foregoing) which are done
or made by the Board (with, where specifically provided
for herein, the concurrence of the Continuing Directors)
in good faith, shall (x) be final, conclusive and binding
on the Company, the Rights Agent, the holders of the
Rights and all other parties, and (y) not subject the
Board or the Continuing Directors to any liability to the
holders of the Rights.
Section 29. 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 registered holders of the Rights Certificates (and,
prior to the Distribution Date, registered holders of the
Common Stock) any legal or equitable right, remedy or
claim under this Agreement; but this Agreement shall be
for the sole and exclusive benefit of the Company, the
Rights Agent and the registered holders of the Rights
Certificates (and, prior to the Distribution Date,
registered holders of the Common Stock).
Section 30. Severability. If any term,
provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force
and effect and shall in no way be affected, impaired or
invalidated; provided, however, that notwithstanding
anything in this Agreement to the contrary, if any such
term, provision, covenant or restriction is held by such
court or authority to be invalid, void or unenforceable
and the Board determines in its good faith judgment that
severing the invalid language from this Agreement would
adversely affect the purpose or effect of this Agreement,
the right of redemption set forth in Section 23 hereof
shall be reinstated and shall not expire until the close
of business on the tenth day following the date of such
determination by the Board. Without limiting the
foregoing, if any provision requiring a determination to
be made by (or with the concurrence of) less than the
entire Board is held by any court of competent
jurisdiction or other authority to be invalid, void or
unenforceable, such determination shall then be made by
the Board in accordance with applicable law and the
Company's Certificate of Incorporation and By-Laws.
Section 31. Governing Law. This Agreement,
each Right and each Rights Certificate issued hereunder
shall be deemed to be a contract made under the laws of
the State of Delaware and for all purposes shall be
governed by and construed in accordance with the laws of
such State applicable to contracts made and to be
performed entirely within such State.
Section 32. Counterparts. This Agreement may
be executed in any number of counterparts and each of
such counterparts shall for all purposes be deemed to be
an original, and all such counterparts shall together
constitute but one and the same instrument.
Section 33. Descriptive Headings. Descriptive
headings of the several Sections of this Agreement are
inserted for convenience only and shall not control or
affect the meaning or construction of any of the
provisions hereof.
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed and their
respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
GREAT WESTERN FINANCIAL
Attest: CORPORATION
By /s/ J. Lance Erikson By /s/ John F. Maher
J. Lance Erikson John F. Maher
Executive Vice President, President
Secretary and General
Counsel
FIRST CHICAGO TRUST
Attest: COMPANY OF NEW YORK
By /s/ Joanne Gorostiola By /s/ Ralph Persico
Joanne Gorostiola Ralph Persico
Assistant Vice President Customer Service Officer
Exhibit A
CERTIFICATE OF DESIGNATION, PREFERENCES AND
RIGHTS OF SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
GREAT WESTERN FINANCIAL CORPORATION
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
We, James F. Montgomery, Chairman and Chief
Executive, and J. Lance Erikson, Senior Vice President
and Corporate Secretary, of Great Western Financial
Corporation, a corporation organized and existing under
the General Corporation Law of the State of Delaware in
accordance with the provisions of Section 103 thereof, DO
HEREBY CERTIFY:
That pursuant to the authority conferred upon
the Board of Directors by the Certificate of
Incorporation, as amended, of said Corporation, said
Board of Directors on June 24, 1986, adopted the
following resolution creating a series of 500,000 shares
of preferred stock designated as Series A Junior
Participating Preferred Stock and on June 27, 1995
approved an amendment to such resolution increasing the
number of shares of such series of preferred stock to
2,000,000:
RESOLVED, that pursuant to the authority vested
in the Board of Directors of this Corporation in
accordance with the provisions of its Certificate of
Incorporation, as amended (the "Certificate of
Incorporation"), a series of Preferred Stock of the
Corporation be and it hereby is created, and that the
designation and amount thereof and the voting powers,
preferences and relative, participating, optional and
other special rights of the shares of such series, and
the qualifications, limitations or restrictions thereof
are as follows:
Section 1. Designation and Amount. The shares
of such series shall be designated as "Series A Junior
Participating Preferred Stock" and the number of shares
constituting such series shall be 2,000,000.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights
of the holders of any shares of any series of Preferred
Stock ranking prior and superior to the shares of Series
A Junior Participating Preferred Stock with respect to
dividends, the holders of shares of Series A Junior
Participating Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose,
quarterly dividends payable in cash on the last day of
February, May, August and November in each year (each
such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance
of a share or a fraction of a share of Series A Junior
Participating Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (a)
$12.00 or (b) subject to the provisions for adjustment
hereinafter set forth, 100 times the aggregate per share
amount of all cash dividends, and 100 times the aggregate
per share amount (payable in kind) of all non-cash
dividends or other distributions other than a dividend
payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification
or otherwise), declared on the Common Stock, par value
$1.00 per share, of the Corporation (the "Common Stock")
since the immediately preceding Quarterly Dividend
Payment Date, or, with respect to the first Quarter
Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Junior
Participating Preferred Stock. In the event the
Corporation shall at any time after June 24, 1986 (the
"Rights Declaration Date") (i) declare any dividend on
Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine
the outstanding Common Stock into a smaller number of
shares, then in each such case the amount to which
holders of shares of Series A Junior Participating
Preferred Stock were entitled immediately prior to such
event under clause (b) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such
event.
(B) The Corporation shall declare a dividend
or distribution on the Series A Junior Participating
Preferred Stock as provided in paragraph (A) above
immediately after it declares a dividend or distribution
on the Common Stock (other than a dividend payable in
shares of Common Stock); provided that, in the event no
dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $12.00 per share on
the Series A Junior Participating Preferred Stock shall
nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be
cumulative on outstanding shares of Series A Junior
Participating Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such
shares of Series A Junior Participating Preferred Stock,
unless the date of issue of such shares is prior to the
record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin
to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment
Date or is a date after the record date for the
determination of holders of shares of Series A Junior
Participating Preferred Stock entitled to receive a
quarterly dividend and before such Quarterly Dividend
Payment Date, in either of which events such dividends
shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the
shares of Series A Junior Participating Preferred Stock
in an amount less than the total amount of such dividends
at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all
such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of
holders of shares of Series A Junior Participating
Preferred Stock entitled to receive payment of a dividend
or distribution declared thereon, which record date shall
be no more than 30 days prior to the date fixed for the
payment thereof.
Section 3. Voting Rights. The holders of
shares of Series A Junior Participating Preferred Stock
shall have the following voting rights:
(A) Subject to the provision for adjustment
hereinafter set forth, each share of Series A Junior
Participating Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote
of the stockholders of the Corporation. In the event the
Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares,
then in each such case the number of votes per share to
which holders of shares of Series A Junior Participating
Preferred Stock were entitled immediately prior to such
event shall be adjusted by multiplying such number by a
fraction the numerator of which is the number of shares
of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to
such event.
(B) Except as otherwise provided herein or by
law, the holders of shares of Series A Junior
Participating Preferred Stock and the holders of shares
of Common Stock shall vote together as one class on all
matters submitted to a vote of stockholders of the
Corporation.
(C) (i) If at any time dividends on any
Series A Junior Participating Preferred Stock shall be in
arrears in an amount equal to six (6) quarterly dividends
thereon, the occurrence of such contingency shall mark
the beginning of a period (herein called a "default
period") which shall extend until such time when all
accrued and unpaid dividends for all previous quarterly
dividend periods and for the current quarterly dividend
period on all shares of Series A Junior Participating
Preferred Stock then outstanding shall have been declared
and paid or set apart for payment. During each default
period, all holders of Preferred Stock (including holders
of the Series A Junior Participating Preferred Stock)
with dividends in arrears in an amount equal to six (6)
quarterly dividends thereon, voting as a class,
irrespective of series, shall have the right to elect
three (3) Directors.
(ii) During any default period, such voting
right of the holders of Series A Junior Participating
Preferred Stock may be exercised initially at the next
annual meeting of stockholders, and at any annual meeting
of stockholders thereafter, provided that neither such
voting right nor the right of the holders of any other
series of Preferred Stock, if any, to elect Directors as
provided in subparagraph (C)(i) above shall be exercised
unless the holders of one-third in number of shares of
Preferred Stock outstanding and entitled to vote with
respect to such election shall be present in person or by
proxy. The absence of a quorum of the holders of Common
Stock shall not affect the exercise by the holders of
Preferred Stock of such voting right. During any default
period, the number of Directors shall not be increased or
decreased except by vote of the holders of Preferred
Stock then entitled to elect Directors pursuant to
subparagraph (C)(i) voting as a class, irrespective of
series, or pursuant to the rights of any equity
securities ranking senior to or pari passu with the
Series A Junior Participating Preferred Stock.
(iii) In any default period, the holders of
Common Stock, and other classes of stock of the
Corporation if applicable, shall continue to be entitled
to elect the whole number of Directors until the holders
of Preferred Stock shall have exercised their right to
elect three (3) Directors voting as a class, after the
exercise of which right (x) the Directors so elected by
the holders of Preferred Stock shall continue in office
until their successor shall have been elected by such
holders or until the expiration of the default period and
(y) any vacancy in the Board of Directors may be filled
in the manner set forth in Article Tenth of the
Certificate of Incorporation.
(iv) Immediately upon the expiration of a
default period, (x) the right of the holders of Preferred
Stock as a class to elect Directors shall cease, (y) the
term of any Directors elected by the holders of Preferred
Stock as a class shall terminate, and (z) the number of
Directors shall be such number as may be provided for in
the certificate of incorporation or by-laws. Any
vacancies in the Board of Directors affected by the
provisions of clauses (y) and (z) in the preceding
sentence may be filled in the manner set forth in Article
Tenth of the Certificate of Incorporation.
(D) Except as set forth herein, holders of
Series A Junior Participating Preferred Stock shall have
no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for
taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other
dividends or distributions payable on the Series A Junior
Participating Preferred Stock as provided in Section 2
are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not
declared, on shares of Series A Junior Participating
Preferred Stock outstanding shall have been paid in full,
the Corporation shall not
(i) declare or pay dividends on, make any
other distributions on, or redeem or purchase or
otherwise acquire for consideration any shares of
stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the
Series A Junior Participating Preferred Stock;
(ii) declare or pay dividends on or make
any other distributions on any shares of stock
ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the
Series A Junior Participating Preferred Stock,
except dividends paid ratably on the Series A Junior
Participating Preferred Stock and all such parity
stock on which dividends are payable or in arrears
in proportion to the total amounts to which the
holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise
acquire for consideration shares of any stock
ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the
Series A Junior Participating Preferred Stock,
provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any
such parity stock in exchange for shares of any
stock of the Corporation ranking junior (either as
to dividends or upon dissolution, liquidation or
winding up) to the Series A Junior Participating
Preferred Stock;
(iv) except as otherwise provided in
Section 8, purchase or otherwise acquire for
consideration any shares of Series A Junior
Participating Preferred Stock, or any shares of
stock ranking on a parity with the Series A Junior
Participating Preferred Stock, except in accordance
with a purchase offer made in writing or by
publication (as determined by the Board of
Directors) to all holders of such shares upon such
terms as the Board of Directors, after consideration
of the respective annual dividend rates and other
relative rights and preferences of the respective
series and classes, shall determine in good faith
will result in fair and equitable treatment among
the respective series or classes.
(B) The Corporation shall not permit any
subsidiary of the Corporation to purchase or otherwise
acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph
(A) of this Section 4, purchase or otherwise acquire such
shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of
Series A Junior Participating Preferred Stock purchased
or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after
the acquisition thereof. All such shares shall upon
their cancellation become authorized but unissued shares
of Preferred Stock and may be reissued as part of a new
series of Preferred Stock to be created by resolution or
resolutions of the Board of Directors, subject to the
conditions and restrictions on issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding
Up. (A) Upon any liquidation (voluntary or otherwise),
dissolution or winding up of the Corporation, no
distribution shall be made to the holders of shares of
stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A
Junior Participating Preferred Stock unless, prior
thereto, the holders of shares of Series A Junior
Participating Preferred Stock shall have received $500
per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not
declared, to the date of such payment (the "Series A
Liquidation Preference"). Following the payment of the
full amount of the Series A Liquidation Preference, no
additional distributions shall be made to the holders of
shares of Series A Junior Participating Preferred Stock
unless, prior thereto, the holders of shares of Common
Stock shall have received an amount per share (the
"Common Adjustment") equal to the quotient obtained by
dividing (i) the Series A Liquidation Preference by (ii)
100 (as appropriately adjusted as set forth in
subparagraph C below to reflect such events as stock
splits, stock dividends and recapitalizations with
respect to the Common Stock) (such number in clause (ii)
immediately above, the "Adjustment Number"). Following
the payment of the full amount of the Series A
Liquidation Preference and the Common Adjustment in
respect of all outstanding shares of Series A Junior
Participating Preferred Stock and Common Stock,
respectively, holders of Series A Junior Participating
Preferred Stock and holders of shares of Common Stock
shall receive their ratable and proportionate share of
the remaining assets to be distributed in the ratio of
the Adjustment Number to one (1) with respect to such
Preferred Stock and Common Stock, on a per share basis,
respectively.
(B) In the event, however, that there are not
sufficient assets available to permit payment in full of
the Series A Liquidation Preference and the liquidation
preferences of all other series of preferred stock, if
any, which rank on a parity with the Series A Junior
Participating Preferred Stock, then such remaining assets
shall be distributed ratably to the holders of such
parity shares in proportion to their respective
liquidation preferences. In the event, however, that
there are not sufficient assets available to permit
payment in full of the Common Adjustment, then such
remaining assets shall be distributed ratably to the
holders of Common Stock.
(C) In the event the Corporation shall at any
time after the Rights Declaration Date (i) declare any
dividend on Common Stock payable in shares of Common
Stock, (ii) subdivide the outstanding Common Stock, or
(iii) combine the outstanding Common Stock into a smaller
number of shares, then in each such case the Adjustment
Number in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment Number by a
fraction the numerator of which is the number of shares
of Common Stock outstanding immediately after such event,
and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to
such event.
Section 7. Consolidation, Merger, etc. In
case the Corporation shall enter into any consolidation,
merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into
other stock or securities, cash and/or any other
property, then in any such case the shares of Series A
Junior Participating Preferred Stock shall at the same
time be similarly exchanged or changed in an amount per
share subject to the provision for adjustment hereinafter
set forth equal to 100 times the aggregate amount of
stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for
which each share of Common Stock is changed or exchanged.
In the event the Corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on
Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine
the outstanding Common Stock into a smaller number of
shares, then in each such case the amount set forth in
the preceding sentence with respect to the exchange or
change of shares of Series A Junior Participating
Preferred Stock shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number
of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately
prior to such event.
Section 8. Redemption. The outstanding shares
of Series A Junior Participating Preferred Stock may be
redeemed at the option of the Board of Directors as a
whole, but not in part, at any time, or from time to
time, at a cash price per share equal to 105 percent of
(i) the product of the Adjustment Number times the
Average Market Value (as such term is hereinafter
defined) of the Common Stock, plus (ii) all dividends
which on the redemption date have accrued on the shares
to be redeemed and have not been paid, or declared and a
sum sufficient for the payment thereof set apart, without
interest. The "Average Market Value" is the average of
the closing sale prices of the Common Stock during the
30-day period immediately preceding the date before the
redemption date on the Composite Tape for New York Stock
Exchange Listed Stocks, or, if such stock is not quoted
on the Composite Tape, on the New York Stock Exchange,
or, if such stock is not listed on such Exchange, on the
principal United States securities exchange registered
under the Securities Exchange Act of 1934, as amended, on
which such stock is listed, or, if such stock is not
listed on any such exchange, the average of the closing
sale prices with respect to a share of Common Stock
during such 30-day period, as quoted on the National
Association of Securities Dealers, Inc. Automated
Quotations System or any system then in use, or if no
such quotations are available, the fair market value of
the Common Stock as determined by the Board of Directors
in good faith.
Section 9. Ranking. The Series A Junior
Participating Preferred Stock shall rank junior to all
other series of Preferred Stock as to the payment of
dividends and the distribution of assets, unless the
terms of any such series shall provide otherwise.
Section 10. Amendment. The Certificate of
Incorporation shall not be further amended in any manner
which would materially alter or change the powers,
preferences or special rights of the Series A Junior
Participating Stock so as to affect them adversely
without the affirmative vote of the holders of two-thirds
or more of the outstanding shares of Series A Junior
Participating Preferred Stock, voting separately as a
class.
Section 11. Fractional Shares. Series a
Junior Participating Preferred Stock may be issued in
fractions of a share which shall entitle the holder, in
proportion to such holder's fractional shares, to
exercise voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights
of holders of Series A Junior Participating Preferred
Stock.
IN WITNESS WHEREOF, we have executed and
subscribed this Certificate and do affirm the foregoing
as true under the penalties of perjury this 24th day of
June, 1986.
/s/ James F. Montgomery
James F. Montgomery
Chairman and Chief
Executive
Attest:
/s/ J. Lance Erikson
J. Lance Erikson
Senior Vice President
and Corporate Secretary
Exhibit B
[Form of Rights Certificate]
Certificate No. R- ____________ Rights
NOT EXERCISABLE AFTER JULY 14, 1996 OR EARLIER IF
REDEEMED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO
REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.01 PER
RIGHT ON THE TERMS SET FORTH ON THE RIGHTS AGREEMENT.
UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY
AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE
RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH
RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED
BY THIS RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED
BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN
AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH
TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY,
THIS RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY
MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED
IN SECTION 7(e) OF SUCH AGREEMENT] *
Rights Certificate
GREAT WESTERN FINANCIAL CORPORATION
This certifies that , or
registered assigns, is the registered owner of the number
of Rights set forth above, each of which entitles the
owner thereof, subject to the terms, provisions and
conditions of the Rights Agreement, dated as of June 24,
1986, as amended and restated as of June 27, 1995 (the
"Rights Agreement"), Great Western Financial Corporation,
a Delaware corporation (the "Company"), and First Chicago
Trust Company of New York, a New York banking corporation
(the "Rights Agent"), to purchase from the Company at any
time prior to 5:00 PM (New York City time) on July 14,
1996 at the office or offices of the Rights Agent
designated for such purpose, or its successors as Rights
____________________
* The portion of the legend in brackets shall be
inserted only if applicable and shall replace the
preceding sentence.
Agent, one one-hundredth of a fully paid, non-assessable
share of Series A Junior Participating Preferred Stock
(the "Preferred Stock") of the Company, at a purchase
price of $175 per one one-hundredth of a share (the
"Purchase Price"), upon presentation and surrender of
this Rights Certificate with the Form of Election to
Purchase and related Certificate duly executed. The
Purchase Price shall be paid, at the election of the
holder, in cash or by certified check, bank check, money
order or bank draft payable to the order of the Company.
The number of Rights evidenced by this Rights Certificate
(and the number of shares which may be purchased upon
exercise thereof) set forth above, and the Purchase Price
set forth above, are the number and Purchase Price as of
__________ __, 198__, based on the Preferred Stock as
constituted at such date.
Upon the occurrence of a Section 11(a)(ii)
Event (as such term is defined in the Rights Agreement),
if the Rights evidenced by this Rights Certificate are
beneficially owned by (i) an Acquiring Person or an
Affiliate or Associate of an Acquiring Person (as such
terms are defined in the Rights Agreement), (ii) a
transferee of such Acquiring Person, Associate or
Affiliate, or (iii) under certain circumstances specified
in the Rights Agreement, a transferee of a person who,
after such transfer, became such Acquiring Person, or an
Affiliate or Associate of such Acquiring Person, such
Rights shall become null and void and no holder hereof
shall have any right with respect to such Rights from and
after the occurrence of such Section 11(a)(ii) Event.
As provided in the Rights Agreement, the
Purchase Price and the number and kind of shares of
Preferred Stock or other securities, which may be
purchased upon the exercise of the Rights evidenced by
this Rights Certificate are subject to modification and
adjustment upon the happening of certain events,
including Triggering Events.
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 Certificate, which limitations of rights include
the temporary suspension of the exercisability of such
Rights under the specific circumstances set forth in the
Rights Agreement. Copies of the Rights Agreement are on
file at the offices of the Company and are also available
upon written request to the Company.
This Rights Certificate, with or without other
Rights Certificates, upon surrender at the principal
office or offices of the Rights Agent designated for such
purpose, may be exchanged for another Rights Certificate
or Rights Certificates of like tenor and date evidencing
Rights entitling the holder to purchase a like aggregate
number of one one-hundredths of a share of Preferred
Stock as the Rights evidenced by the Rights Certificate
or Rights Certificates surrendered shall have entitled
such holder to purchase. If this Rights Certificate
shall be exercised in part, the holder shall be entitled
to receive upon surrender hereof another Rights
Certificate or Rights Certificates for the number of
whole Rights not exercised.
Subject to the provisions of the Rights
Agreement, the Rights evidenced by this Certificate may
be redeemed by the Company at its option at a redemption
price of $.01 per Right at any time prior to the earlier
of the close of business on (i) the tenth business day
following the Stock Acquisition Date (as such time period
may be extended pursuant to the Rights Agreement), and
(ii) the Final Expiration Date. After the expiration of
the redemption period, the Company's right of redemption
may be reinstated if an Acquiring Person reduces its
beneficial ownership to less than 15% of the outstanding
shares of Common Stock in a transaction or series of
transactions not involving the Company, and such
reinstatement is approved by the Company's Board of
Directors (with the concurrence of a majority of the
Continuing Directors, as such term is defined in the
Rights Agreement).
No fractional shares of Preferred Stock will be
issued upon the exercise of any Right or Rights evidenced
hereby (other than fractions which are integral multiples
of one one-hundredth of a share of Preferred Stock, which
may, at the election of the Company, be evidenced by
depositary receipts), but in lieu thereof a cash payment
will be made, as provided in the Rights Agreement.
No holder of this Rights Certificate shall be
entitled to vote or receive dividends or be deemed for
any purpose the holder of shares of Preferred Stock or of
any other securities of the Company which may at any time
be issuable on the exercise hereof, nor shall anything
contained in the Rights Agreement or herein be construed
to confer upon the holder hereof, as such, any of the
rights of a stockholder of the Company or any right to
vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, or to
give or withhold consent to any corporate action, or, to
receive notice of meetings or other actions affecting
stockholders (except as provided in the Rights
Agreement), or to receive dividends or subscription
rights, or otherwise until the Right or Rights evidenced
by this Rights Certificate shall have been exercised as
provided in the Rights Agreement.
This Rights Certificate shall not be valid or
obligatory for any purpose until it shall have been
countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper
officers of the Company and its corporate seal.
Dated as of _______ ___, 19___
ATTEST: GREAT WESTERN FINANCIAL
CORPORATION
By
Secretary Title:
Countersigned:
By
Authorized Signature
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED
hereby sells, assigns and transfers unto
(Please print name and address of transferee)
this Rights Certificate, together with all right, title
and interest therein, and does hereby irrevocably
constitute and appoint ________________________ Attorney,
to transfer the within Rights Certificate on the books of
the within-named Company, with full power of
substitution.
Dated: , 19
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking
the appropriate boxes that:
(1) this Rights Certificate [ ] is [ ] is
not being sold, assigned and transferred by or on behalf
of a Person who is or was an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person (as
such terms are defined in the Rights Agreement);
(2) after due inquiry and to the best
knowledge of the undersigned, it [ ] did [ ] did not
acquire the Rights evidenced by this Rights Certificate
from any Person who is, was or subsequently became an
Acquiring Person or an Affiliate or Associate of an
Acquiring Person.
Dated: , 19
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment and
Certificate must correspond to the name as written upon
the face of this Rights Certificate in every particular,
without alteration or enlargement or any change
whatsoever.
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires
to exercise Rights represented by
the Rights Certificate.)
To: GREAT WESTERN FINANCIAL CORPORATION:
The undersigned hereby irrevocably elects to
exercise __________ Rights represented by this Rights
Certificate to purchase the shares of Preferred Stock
issuable upon the exercise of the Rights (or such other
securities of the Company or of any other person which
may be issuable upon the exercise of the Rights) and
requests that certificates for such shares be issued in
the name of and delivered to:
Please insert social security
or other identifying number
(Please print name and address)
If such number of Rights shall not be all the
Rights evidenced by this Rights Certificate, a new Rights
Certificate for the balance of such Rights shall be
registered in the name of and delivered to:
Please insert social security
or other identifying number
(Please print name and address)
Dated: , 19
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking
the appropriate boxes that:
(1) the Rights evidenced by this Rights
Certificate [ ] are [ ] are not being exercised by or
on behalf of a Person who is or was an Acquiring Person
or an Affiliate or Associate or any such Acquiring Person
(as such terms are defined in the Rights Agreement);
(2) after due inquiry and to the best
knowledge of the undersigned, it [ ] did [ ] did not
acquire the Rights evidenced by this Rights Certificate
from any Person who is, was or became an Acquiring Person
or an Affiliate or Associate of an Acquiring Person.
Date: , 19
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Election to
Purchase and Certificate must correspond to the name as
written upon the face of this Rights Certificate in every
particular, without alteration or enlargement or any
change whatsoever.
Exhibit C
FORM OF
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED STOCK
On June 24, 1986, the Board of Directors of
Great Western Financial Corporation (the "Company")
declared a dividend distribution of one Right for each
outstanding share of the common stock, par value $1.00
per share, of the Company (the "Common Stock") to
stockholders of record at the close of business on July
14, 1986. Each Right entitles the registered holder to
purchase from the Company a unit consisting of one one-
hundredth of a share (a "Unit") of Series A Junior
Participating Preferred Stock, par value $1.00 per share
(the "Preferred Stock"), at a Purchase Price of $175 per
Unit, subject to adjustment. The Purchase Price may be
paid, at the option of the holder, in cash, or shares of
Common Stock having a value at the time of exercise equal
to the Purchase Price. The description and terms of the
Rights are set forth in a Rights Agreement (the "Rights
Agreement") between the Company and Morgan Guaranty Trust
Company of New York, as Rights Agent.
Initially, the Rights will be attached to all
Common Stock certificates representing shares then
outstanding, and no separate Rights Certificates will be
distributed. The Rights will separate from the Common
Stock and a Distribution Date will occur upon the earlier
of (i) 10 business days following a public announcement
that a person or group of affiliated or associated
persons (an "Acquiring Person") has acquired, or obtained
the right to acquire, beneficial ownership of 20% or more
of the outstanding shares of Common Stock (the "Stock
Acquisition Date"), or (ii) 10 business days after the
date a tender of exchange offer that would result in a
person or group beneficially owning 25% or more of the
outstanding shares of Common Stock is first published,
sent or given to the Company's stockholders. Until the
Distribution Date, (i) the Rights will be evidenced by
the Common Stock certificates and will be transferred
with and only with such Common Stock certificates, (ii)
new Common Stock certificates issued after July 14, 1986
will contain a notation incorporating the Rights
Agreement by reference and (iii) the surrender for
transfer of any certificate for Common Stock outstanding
will also constitute the transfer of the Rights
associated with the Common Stock represented by such
certificate.
The Rights are not exercisable until the
Distribution Date and will expire at the close of
business on July 14, 1996, unless earlier redeemed by the
Company as described below.
As soon as practicable after the Distribution
Date, Rights Certificates will be mailed to holders of
record of the Common Stock as of the close of business on
the Distribution Date and, thereafter, the separate
Rights Certificates alone will represent the Rights.
Except as otherwise determined by the Board of Directors,
only shares of Common Stock issued prior to the
Distribution Date will be issued with Rights.
In the event that, at any time following the
Distribution Date, (i) the Company is the surviving
corporation in a merger with an Acquiring Person and the
Common Stock is not changed or exchanged, (ii) a person
or group becomes the beneficial owner of 25% or more of
the then outstanding shares of Common Stock, (iii) an
Acquiring Person engages in one or more "self-dealing"
transactions as set forth in the Rights Agreement, or
(iv) during such time as there is an Acquiring Person, an
event occurs which results in any Acquiring Person's
ownership interest in the Company being increased by more
than 1% (e.g., a reverse stock split), each holder of a
Right will thereafter have the right to receive, upon
exercise, Common Stock (or, in certain circumstances,
cash, property or other securities of the Company) having
a value equal to two times the exercise price of the
Right. Notwithstanding any of the foregoing, following
the occurrence of any of the events set forth in this
paragraph, all Rights that are, or (under certain
circumstances specified in the Rights Agreement) were,
beneficially owned by an Acquiring Person which the Board
of Directors, in its sole discretion, determines is or
was involved in, or caused or facilitated, directly or
indirectly, any of such events, will be null and void.
However, Rights are not exercisable following the first
occurrence of any of the events set forth in this
paragraph until such time as the Rights are no longer
redeemable by the Company as described below.
For example, following an event described in
the preceding paragraph, at an exercise price of $175 per
Right, each Right not voided as described above would
entitle its holder to purchase $350 worth of Common Stock
(or other consideration, as noted above) for $175.
Assuming that the Common Stock had a per share value of
$50 at such time, the holder of each valid Right would be
entitled to purchase 7 shares of Common Stock for $175.
In the event that, at any time following the
Stock Acquisition Date, (i) the Company is acquired in a
merger or other business combination transaction in which
the Company is not the surviving corporation (other than
a merger described in the second preceding paragraph), or
(ii) 50% or more of the Company's assets or earning power
is sold or transferred, each holder of a Right (except
Rights which previously have been voided as described
above) shall thereafter have the right to receive, upon
exercise, common stock of the acquiring company having a
value equal to two times the exercise price of the Right.
The Purchase Price payable, and the number of
Units of Preferred Stock or other securities or property
issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in
the event of a stock dividend on, or a subdivision,
combination or reclassification of, the Preferred Stock,
(ii) if holders of the Preferred Stock are granted
certain rights or warrants to subscribe for Preferred
Stock or convertible securities at less than the current
market price of the Preferred Stock, or (iii) upon the
distribution to holders of the Preferred Stock of
evidences of indebtedness or assets (excluding regular
quarterly cash dividends) or of subscription rights or
warrants (other than those referred to above).
With certain exceptions, no adjustment in the
Purchase Price will be required until cumulative
adjustments amount to at least 1% of the Purchase Price.
No fractional Units will be issued and, in lieu thereof,
an adjustment in cash will be made based on the market
price of the Preferred Stock on the last trading date
prior to the date of exercise.
At any time until ten business days following
the Stock Acquisition Date, the Company may redeem the
Rights in whole, but not in part, at a price of $.01 per
Right. After the redemption period has expired, the
Company's right of redemption may be reinstated if, among
other things, an Acquiring Person reduces its beneficial
ownership to 10% or less of the outstanding shares of
Common Stock in a transaction or series of transactions
not involving the Company. Immediately upon the action
of the Board of Directors ordering redemption of the
Rights, the Rights will terminate and the only right of
the holders of Rights will be to receive the $.01 per
Right redemption price.
Until a Right is exercised, the holder thereof,
as such, will have no rights as a stockholder of the
Company, including, without limitation, the right to vote
or to receive dividends. While the distribution of the
Rights will not be taxable to stockholders or to the
Company, stockholders may, depending upon the
circumstances, recognize taxable income in the event that
the Rights become exercisable for Common Stock (or other
consideration) of the Company or for common stock of an
acquiring company as set forth above.
Other than those provisions relating to the
principal economic terms of the Rights, any of the
provisions of the Rights Agreement may be amended by the
Board of Directors of the Company prior to the
Distribution Date. After the Distribution Date, the
provisions of the Rights Agreement may be amended by the
Board in order to cure any ambiguity, to make changes
which do not adversely affect the interests of holders of
Rights, or to shorten or lengthen any time period under
the Rights Agreement (including the time period governing
redemption); provided, however, that no amendment to
adjust the time period governing redemption may be made
at such time as the Rights are not redeemable.
A copy of the Rights Agreement has been filed
with the Securities and Exchange Commission as an Exhibit
to a Registration Statement on Form 8-A dated June 25,
1986. A copy of the Rights Agreement is available free
of charge from the Company. This summary description of
the Rights does not purport to be complete and is
qualified in its entirety by reference to the Rights
Agreement, which is incorporated herein by reference.
EXHIBIT 99.2
GREAT WESTERN FINANCIAL CORPORATION
and
FIRST CHICAGO TRUST COMPANY OF NEW YORK
Rights Agent
Rights Agreement
Dated as of June 27, 1995
Table of Contents
Section Page
1. Certain Definitions . . . . . . . . . . . . 3
2. Appointment of Rights Agent . . . . . . . . 10
3. Issue of Rights Certificates . . . . . . . 10
4. Form of Rights Certificates . . . . . . . . 15
5. Countersignature and Registration . . . . . 17
6. Transfer, Split Up, Combination and
Exchange of Rights Certificates;
Mutilated, Destroyed, Lost or
Stolen Rights Certificates . . . . . . . . 19
7. Exercise of Rights; Purchase Price;
Expiration Date of Rights . . . . . . . . 21
8. Cancellation and Destruction of
Rights Certificates . . . . . . . . . . . 28
9. Reservation and Availability of
Capital Stock . . . . . . . . . . . . . . 28
10. Preferred Stock Record Date . . . . . . . 32
11. Adjustment of Purchase Price,
Number and Kind of Shares or
Number of Rights . . . . . . . . . . . . 34
12. Certificate of Adjusted Purchase
Price or Number of Shares . . . . . . . . 58
13. Consolidation, Merger or Sale
or Transfer of Assets or Earning
Power . . . . . . . . . . . . . . . . . . 59
14. Fractional Rights and Fractional
Shares . . . . . . . . . . . . . . . . . 66
15. Rights of Action . . . . . . . . . . . . . 69
16. Agreement of Rights Holders . . . . . . . 70
17. Rights Certificate Holder Not Deemed
a Stockholder . . . . . . . . . . . . . . 72
18. Concerning the Rights Agent . . . . . . . 73
19. Merger or Consolidation or Change of
Name of Rights Agent . . . . . . . . . . 74
20. Duties of Rights Agent . . . . . . . . . . 75
21. Change of Rights Agent . . . . . . . . . . 80
22. Issuance of New Rights Certificates . . . 83
23. Redemption and Termination . . . . . . . . 84
24. Notice of Certain Events . . . . . . . . . 91
25. Notices . . . . . . . . . . . . . . . . . 93
26. Supplements and Amendments . . . . . . . . 94
27. Successors . . . . . . . . . . . . . . . . 96
28. Determinations and Actions
by the Board of Directors, etc. . . . . . 96
29. Benefits of this Agreement . . . . . . . . 98
30. Severability . . . . . . . . . . . . . . . 98
31. Governing Law . . . . . . . . . . . . . . 99
32. Counterparts . . . . . . . . . . . . . . . 100
33. Descriptive Headings . . . . . . . . . . . 100
Exhibit A -- Certificate of Designation,
Preferences and Rights
Exhibit B -- Form of Rights Certificate
RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of June 27, 1995
(the "Agreement"), between Great Western Financial
Corporation, a Delaware corporation (the "Company"), and
First Chicago Trust Company of New York (the "Rights
Agent").
W I T N E S S E T H
WHEREAS, on June 24, 1986, the Board of
Directors of the Company (the "Board") (i) approved and
adopted a Rights Agreement (which Rights Agreement, as
subsequently amended, is referred to herein as the
"Existing Rights Agreement") between the Company and the
rights agent thereunder, (ii) authorized and declared a
dividend distribution of one right (an "Existing Right")
for each share of common stock, par value $1.00 per
share, of the Company (the "Common Stock") outstanding at
the close of business on July 14, 1986 (the "1986 Record
Date") and (iii) authorized the issuance of one Existing
Right (as such number may have been adjusted pursuant to
the provisions of Section 11(p) of the Existing Rights
Agreement) for each share of Common Stock of the Company
issued between the 1986 Record Date (whether originally
issued or delivered from the Company's treasury) and the
"Distribution Date" specified in the Existing Rights
Agreement;
WHEREAS, pursuant to the Existing Rights
Agreement, the Existing Rights will expire no later than
July 14, 1996;
WHEREAS, on June 27, 1995 (the "Rights Dividend
Declaration Date"), the Board authorized and declared a
dividend distribution of one Right for each share of
Common Stock outstanding at the close of business on the
"Expiration Date" specified in the Existing Agreement
(the "Record Date"), and has authorized the issuance of
one Right (as such number may hereinafter be adjusted
pursuant to the provisions of Section 11(p) hereof) for
each share of Common Stock of the Company issued between
the Record Date (whether originally issued or delivered
from the Company's treasury) and the Distribution Date
(as defined below), each Right initially representing the
right to purchase one one-hundredth of a share of Series
A Junior Participating Preferred Stock of the Company
having the rights, powers and preferences set forth in
the Certificate of Designation attached hereto as Exhibit
A, upon the terms and subject to the conditions
hereinafter set forth (the "Rights");
NOW, THEREFORE, in consideration of the
premises and the mutual agreements herein set forth, the
parties hereby agree as follows:
Section 1. Certain Definitions. For purposes
of this Agreement, the following terms have the meanings
indicated:
(a) "Acquiring Person" shall mean any
Person who or which, together with all Affiliates and
Associates of such Person, shall be the Beneficial Owner
of 15% or more of the shares of Common Stock then
outstanding, but shall not include (i) the Company, (ii)
any Subsidiary of the Company, (iii) any employee benefit
plan of the Company or of any Subsidiary of the Company,
(iv) any Person or entity organized, appointed or
established by the Company for or pursuant to the terms
of any such plan or (v) any Person who has reported or is
required to report such ownership (but less than 20%) on
Schedule 13G under the Exchange Act (or any comparable or
successor report) or on Schedule 13D under the Exchange
Act (or any comparable or successor report) which
Schedule 13G or 13D does not state any intention to, or
reserve the right to, control or influence the management
or policies of the Company or (with respect to any such
Schedule 13D) engage in any of the actions specified in
Item 4 of such Schedule (other than the disposition of
the Common Stock) and who, within 10 Business Days of
being requested by the Company to advise it regarding the
same, certifies to the Company that such Person acquired
shares of Common Stock in excess of 14.9% inadvertently
or without knowledge of the terms of the Rights and who,
together with all Affiliates and Associates, thereafter
does not acquire additional shares of Common Stock while
the Beneficial Owner of 15% or more of the shares of
Common Stock then outstanding; provided, however, that if
the Person requested to so certify fails to do so within
10 Business Days, then such Person shall become an
Acquiring Person immediately after such 10 Business Day
Period.
(b) "Affiliate" and "Associate" shall
have the respective meanings ascribed to such terms in
Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended and in effect
on the date of this Agreement (the "Exchange Act").
(c) A Person shall be deemed the
"Beneficial Owner" of, and shall be deemed to
"beneficially own," any securities:
(i) which such Person or any
of such Person's Affiliates or Associates,
directly or indirectly, has the right to
acquire (whether such right is exercisable
immediately or only after the passage of
time) pursuant to any agreement, arrangement
or understanding (whether or not in writing)
or upon the exercise of conversion rights,
exchange rights, rights, warrants or options,
or otherwise; provided, however, that a
Person shall not be deemed the "Beneficial
Owner" of, or to "beneficially own," (A)
securities tendered pursuant to a tender or
exchange offer made by such Person or any of
such Person's Affiliates or Associates until
such tendered securities are accepted for
purchase or exchange, or (B) securities
issuable upon exercise of Rights at any time
prior to the occurrence of a Triggering
Event, or (C) securities issuable upon
exercise of Rights from and after the
occurrence of a Triggering Event which Rights
were acquired by such Person or any of such
Person's Affiliates or Associates prior to
the Distribution Date or pursuant to Section
3(a) or Section 22 hereof (the "Original
Rights") or pursuant to Section 11(i) hereof
in connection with an adjustment made with
respect to any Original Rights;
(ii) which such Person or any of
such Person's Affiliates or Associates,
directly or indirectly, has the right to vote
or dispose of or has "beneficial ownership"
of (as determined pursuant to Rule 13d-3 of
the General Rules and Regulations under the
Exchange Act), including pursuant to any
agreement, arrangement or understanding,
whether or not in writing; provided, however,
that a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially
own," any security under this subparagraph
(ii) as a result of an agreement, arrangement
or understanding to vote such security if
such agreement, arrangement or understanding:
(A) arises solely from a revocable proxy
given in response to a public proxy or
consent solicitation made pursuant to, and in
accordance with, the applicable provisions of
the General Rules and Regulations under the
Exchange Act, and (B) is not also then
reportable by such Person on Schedule 13D
under the Exchange Act (or any comparable or
successor report); or
(iii) which are beneficially owned,
directly or indirectly, by any other Person
(or any Affiliate or Associate thereof) with
which such Person (or any of such Person's
Affiliates or Associates) has any agreement,
arrangement or understanding (whether or not
in writing), for the purpose of acquiring,
holding, voting (except pursuant to a
revocable proxy as described in the proviso
to subparagraph (ii) of this paragraph (c))
or disposing of any voting securities of the
Company;
provided, however, that nothing in this paragraph (c)
shall cause a Person engaged in business as an
underwriter of securities to be the "Beneficial Owner"
of, or to "beneficially own", any securities acquired
through such Person's participation in good faith in a
firm commitment underwriting until the expiration of
forty days after the date of such acquisition.
(d) "Business Day" shall mean any day
other than a Saturday, Sunday or a day on which banking
institutions in the State of New York are authorized or
obligated by law or executive order to close.
(e) "Close of business" on any given date
shall mean 5:00 P.M., New York City time, on such date;
provided, however, that if such date is not a Business
Day it shall mean 5:00 P.M., New York City time, on the
next succeeding Business Day.
(f) "Common Stock" shall mean the common
stock, par value $1.00 per share, of the Company, except
that "Common Stock" when used with reference to any
Person other than the Company shall mean the capital
stock of such Person with the greatest voting power, or
the equity securities or other equity interest having
power to control or direct the management, of such
Person.
(g) "Continuing Director" shall mean (i)
any member of the Board, while such Person is a member of
the Board, who is not an Acquiring Person, or an
Affiliate or Associate of an Acquiring Person, or a
representative of an Acquiring Person or of any such
Affiliate or Associate, and was a member of the Board
prior to the date of this Agreement, or (ii) any Person
who subsequently becomes a member of the Board, while
such Person is a member of the Board, who is not an
Acquiring Person, or an Affiliate or Associate of an
Acquiring Person, or a representative of an Acquiring
Person or of any such Affiliate or Associate, if such
Person's nomination for election or election to the Board
is recommended or approved by a majority of the
Continuing Directors.
(h) "Person" shall mean any individual,
firm, corporation, partnership or other entity.
(i) "Preferred Stock" shall mean shares
of Series A Junior Participating Preferred Stock, par
value $1.00 per share, of the Company and, to the extent
that there are not a sufficient number of shares of
Series A Junior Participating Preferred Stock authorized
to permit the full exercise of the Rights, any other
series of Preferred Stock, par value $0.01 per share, of
the Company designated for such purpose containing terms
substantially similar to the terms of the Series A Junior
Participating Preferred Stock.
(j) "Section 11(a)(ii) Event" shall mean
any event described in Section 11(a)(ii) hereof.
(k) "Section 13 Event" shall mean any
event described in clauses (x), (y) or (z) of Section
13(a) hereof.
(l) "Stock Acquisition Date" shall mean
the first date of public announcement (which, for
purposes of this definition, shall include, without
limitation, a report filed pursuant to Section 13(d)
under the Exchange Act) by the Company or an Acquiring
Person that an Acquiring Person has become such.
(m) "Subsidiary" shall mean, with
reference to any Person, any corporation of which an
amount of voting securities sufficient to elect at least
a majority of the directors of such corporation is
beneficially owned, directly or indirectly, by such
Person, or otherwise controlled by such Person.
(n) "Triggering Event" shall mean any
Section 11(a)(ii) Event or any Section 13 Event.
Section 2. Appointment of Rights Agent. The
Company hereby appoints the Rights Agent to act as agent
for the Company and the holders of the Rights (who, in
accordance with Section 3 hereof, shall prior to the
Distribution Date also be the holders of the Common
Stock) in accordance with the terms and conditions
hereof, and the Rights Agent hereby accepts such
appointment. The Company may from time to time appoint
such Co-Rights Agents as it may deem necessary or
desirable.
Section 3. Issue of Rights Certificates.
(a) Until the earlier of (i) the close of
business on the tenth business day after the Stock
Acquisition Date (or, if the tenth business day after the
Stock Acquisition Date occurs before the Record Date, the
close of business on the Record Date), or (ii) the close
of business on the tenth business day (or such later date
as the Board shall determine, provided, however, that any
lengthening of such date following the first occurrence
of either of the events set forth in clauses (i) and (ii)
of the first proviso to Section 23(a) hereof shall be
effective only if there are Continuing Directors and
shall require the concurrence of a majority of such
Continuing Directors) after the date that a tender or
exchange offer by any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of
the Company or of any Subsidiary of the Company, or any
Person or entity organized, appointed or established by
the Company for or pursuant to the terms of any such
plan) is first published or sent or given within the
meaning of Rule 14d-2(a) of the General Rules and
Regulations under the Exchange Act, if upon consummation
thereof, such Person would be the Beneficial Owner of 15%
or more of the shares of Common Stock then outstanding
(the earlier of (i) and (ii) being herein referred to as
the "Distribution Date"), (x) the Rights will be
evidenced (subject to the provisions of paragraph (b) of
this Section 3) by the certificates for the Common Stock
registered in the names of the holders of the Common
Stock (which certificates for Common Stock shall be
deemed also to be certificates for Rights) and not by
separate certificates, and (y) the Rights will be
transferable only in connection with the transfer of the
underlying shares of Common Stock (including a transfer
to the Company). As soon as practicable after the
Distribution Date, the Rights Agent will send by
first-class, insured, postage prepaid mail, to each
record holder of the Common Stock as of the close of
business on the Distribution Date, at the address of such
holder shown on the records of the Company, one or more
right certificates, in substantially the form of Exhibit
B hereto (the "Rights Certificates"), evidencing one
Right for each share of Common Stock so held, subject to
adjustment as provided herein. In the event that an
adjustment in the number of Rights per share of Common
Stock has been made pursuant to Section 11(p) hereof, at
the time of distribution of the Right Certificates, the
Company shall make the necessary and appropriate rounding
adjustments (in accordance with Section 14(a) hereof) so
that Rights Certificates representing only whole numbers
of Rights are distributed and cash is paid in lieu of any
fractional Rights. As of and after the Distribution
Date, the Rights will be evidenced solely by such Rights
Certificates.
(b) With respect to certificates for the
Common Stock outstanding as of the Record Date, until the
Distribution Date, the Rights will be evidenced by such
certificates for the Common Stock and the registered
holders of the Common Stock shall also be the registered
holders of the associated Rights. Until the earlier of
the Distribution Date or the Expiration Date (as such
term is defined in Section 7 hereof), the transfer of any
certificates representing shares of Common Stock in
respect of which Rights have been issued shall also
constitute the transfer of the Rights associated with
such shares of Common Stock.
(c) Rights shall be issued in respect of
all shares of Common Stock which are issued (whether
originally issued or from the Company's treasury) after
the Record Date but prior to the earlier of the
Distribution Date or the Expiration Date. Certificates
representing such shares of Common Stock shall also be
deemed to be certificates for Rights, and shall bear the
following legend:
This certificate also evidences and
entitles the holder hereof to certain Rights
as set forth in the Rights Agreement between
Great Western Financial Corporation (the
"Company") and the rights agent thereunder
(the "Rights Agent") dated as of June 27,
1995, as such agreement may be amended from
time to time (the "Rights Agreement"), the
terms of which are hereby incorporated herein
by reference and a copy of which is on file
at the principal offices of the Company.
Under certain circumstances, as set forth in
the Rights Agreement, such Rights will be
evidenced by separate certificates and will
no longer be evidenced by this certificate.
The Company will mail to the holder of this
certificate a copy of the Rights Agreement,
as in effect on the date of mailing, without
charge promptly after receipt of a written
request therefor. Under certain
circumstances set forth in the Rights
Agreement, Rights issued to, or held by, any
Person who is, was or becomes an Acquiring
Person or any Affiliate or Associates thereof
(as such terms are defined in the Rights
Agreement), whether currently held by or on
behalf of such Person or by any subsequent
holder, may become null and void.
With respect to such certificates containing the
foregoing legend, until the earlier of (i) the
Distribution Date or (ii) the Expiration Date, the Rights
associated with the Common Stock represented by such
certificates shall be evidenced by such certificates
alone and registered holders of Common Stock shall also
be the registered holders of the associated Rights, and
the transfer of any of such certificates shall also
constitute the transfer of the Rights associated with the
Common Stock represented by such certificates.
Section 4. Form of Rights Certificates.
(a) The Rights Certificates (and the
forms of election to purchase and of assignment to be
printed on the reverse thereof) shall each be
substantially in the form set forth in Exhibit B hereto
and may have such marks of identification or designation
and such legends, summaries or endorsements printed
thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Agreement,
or as may be required to comply with any applicable law
or with any rule or regulation made pursuant thereto or
with any rule or regulation of any stock exchange on
which the Rights may from time to time be listed, or to
conform to usage. Subject to the provisions of Section
11 and Section 22 hereof, the Rights Certificates,
whenever distributed, shall be dated as of the Record
Date and on their face shall entitle the holders thereof
to purchase such number of one one-hundredths of a share
of Preferred Stock as shall be set forth therein at the
price set forth therein (such exercise price per one
one-hundredth of a share, the "Purchase Price"), but the
amount and type of securities purchasable upon the
exercise of each Right and the Purchase Price thereof
shall be subject to adjustment as provided herein.
(b) Any Rights Certificate issued
pursuant to Section 3(a) or Section 22 hereof that
represents Rights beneficially owned by: (i) an
Acquiring Person or any Associate or Affiliate of an
Acquiring Person, (ii) a transferee of an Acquiring
Person (or of any such Associate or Affiliate) who
becomes a transferee after the Acquiring Person becomes
such, or (iii) a transferee of an Acquiring Person (or of
any such Associate or Affiliate) who becomes a transferee
prior to or concurrently with the Acquiring Person
becoming such and receives such Rights pursuant to either
(A) a transfer (whether or not for consideration) from
the Acquiring Person to holders of equity interests in
such Acquiring Person, or to any Person with whom such
Acquiring Person has any continuing agreement,
arrangement or understanding regarding the transferred
Rights or (B) a transfer which the Board has determined
is part of a plan, arrangement or understanding which has
as a primary purpose or effect avoidance of Section 7(e)
hereof (provided, however, that following the first
occurrence of either of the events set forth in clauses
(i) and (ii) of the first proviso to Section 23(a)
hereof, the determination described in this clause (B)
shall be made by the vote of a majority of the Continuing
Directors), and any Rights Certificate issued pursuant to
Section 6 or Section 11 hereof upon transfer, exchange,
replacement or adjustment of any other Rights Certificate
referred to in this sentence, shall contain (to the
extent feasible) the following legend:
The Rights represented by this Rights
Certificate are or were beneficially owned by
a Person who was or became an Acquiring
Person or an Affiliate or Associate of an
Acquiring Person (as such terms are defined
in the Rights Agreement). Accordingly, this
Rights Certificate and the Rights represented
hereby may become null and void in the
circumstances specified in Section 7(e) of
such Agreement.
Section 5. Countersignature and Registration.
(a) The Rights Certificates shall be
executed on behalf of the Company by its Chairman of the
Board, its Vice Chairman, its President or any Vice
President, either manually or by facsimile signature, and
shall have affixed thereto the Company's seal or a
facsimile thereof which shall be attested by the
Secretary or an Assistant Secretary of the Company,
either manually or by facsimile signature. The Rights
Certificates shall be manually countersigned by the
Rights Agent and shall not be valid for any purpose
unless so countersigned. In case any officer of the
Company who shall have signed any of the Rights
Certificates shall cease to be such officer of the
Company before countersignature by the Rights Agent and
issuance and delivery by the Company, such Rights
Certificates, nevertheless, may be countersigned by the
Rights Agent and issued and delivered by the Company with
the same force and effect as though the person who signed
such Rights Certificates had not ceased to be such
officer of the Company; and any Rights Certificates may
be signed on behalf of the Company by any person who, at
the actual date of the execution of such Rights
Certificate, shall be a proper officer of the Company to
sign such Rights Certificate, although at the date of the
execution of this Rights Agreement any such person was
not such an officer.
(b) Following the Distribution Date, the
Rights Agent will keep or cause to be kept, at its
principal office or offices designated as the appropriate
place for surrender of Rights Certificates upon exercise
or transfer, books for registration and transfer of the
Rights Certificates issued hereunder. Such books shall
show the names and addresses of the respective holders of
the Rights Certificates, the number of Rights evidenced
on its face by each of the Rights Certificates, the
certificate number of each of the Rights Certificates and
the date of each of the Rights Certificates.
Section 6. Transfer, Split Up, Combination and
Exchange of Rights Certificates; Mutilated, Destroyed,
Lost or Stolen Rights Certificates. (a) Subject to the
provisions of Section 4(b), Section 7(e) and Section 14
hereof, at any time after the close of business on the
Distribution Date, and at or prior to the close of
business on the Expiration Date, any Rights Certificate
or Certificates may be transferred, split up, combined or
exchanged for another Rights Certificate or Certificates,
entitling the registered holder to purchase a like number
of one one-hundredths of a share of Preferred Stock (or,
following a Triggering Event, Common Stock, other
securities, cash or other assets, as the case may be) as
the Rights Certificate or Certificates surrendered then
entitled such holder (or former holder in the case of a
transfer) to purchase. Any registered holder desiring to
transfer, split up, combine or exchange any Rights
Certificate or Certificates shall make such request in
writing delivered to the Rights Agent, and shall
surrender the Rights Certificate or Certificates to be
transferred, split up, combined or exchanged at the
principal office or offices of the Rights Agent
designated for such purpose. Neither the Rights Agent
nor the Company shall be obligated to take any action
whatsoever with respect to the transfer of any such
surrendered Rights Certificate until the registered
holder shall have completed and signed the certificate
contained in the form of assignment on the reverse side
of such Rights Certificate and shall have provided such
additional evidence of the identity of the Beneficial
Owner (or former Beneficial Owner) or Affiliates or
Associates thereof as the Company shall reasonably
request. Thereupon the Rights Agent shall, subject to
Section 4(b), Section 7(e) and Section 14 hereof,
countersign and deliver to the Person entitled thereto a
Rights Certificate or Rights Certificates, as the case
may be, as so requested. The Company may require payment
of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any
transfer, split up, combination or exchange of Rights
Certificates.
(b) Upon receipt by the Company and the
Rights Agent of evidence reasonably satisfactory to them
of the loss, theft, destruction or mutilation of a Rights
Certificate, and, in case of loss, theft or destruction,
of indemnity or security reasonably satisfactory to them,
and reimbursement to the Company and the Rights Agent of
all reasonable expenses incidental thereto, and upon
surrender to the Rights Agent and cancellation of the
Rights Certificate if mutilated, the Company will execute
and deliver a new Rights Certificate of like tenor to the
Rights Agent for countersignature and delivery to the
registered owner in lieu of the Rights Certificate so
lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights. (a) Subject to Section 7(e)
hereof, the registered holder of any Rights Certificate
may exercise the Rights evidenced thereby (except as
otherwise provided herein including, without limitation,
the restrictions on exercisability set forth in Section
9(c), Section 11(a)(iii) and Section 23(a) hereof) in
whole or in part at any time after the Distribution Date
upon surrender of the Rights Certificate, with the form
of election to purchase and the certificate on the
reverse side thereof duly executed, to the Rights Agent
at the principal office or offices of the Rights Agent
designated for such purpose, together with payment of the
aggregate Purchase Price with respect to the total number
of one one-hundredths of a share (or other securities,
cash or other assets, as the case may be) as to which
such surrendered Rights are then exercisable, at or prior
to the earliest of (i) the close of business on July 14,
2006 (the "Final Expiration Date"), (ii) the time at
which the Rights are redeemed as provided in Section 23
hereof or (iii) the occurrence of a Section 11(a)(ii)
Event, if such Section 11(a)(ii) Event shall occur prior
to the "Expiration Date" specified in the Existing
Agreement and the Board shall determine that the
expiration of the Rights issued hereunder is appropriate
(which determination shall, if made following the first
occurrence of either of the events set forth in clauses
(i) and (ii) of the first proviso to Section 23(a)
hereof, be effective only if there are Continuing
Directors and shall require the concurrence of a majority
of such Continuing Directors) (the earliest of (i), (ii)
and (iii) being herein referred to as the "Expiration
Date").
(b) The Purchase Price for each one
one-hundredth of a share of Preferred Stock pursuant to
the exercise of a Right shall initially be $80.00, and
shall be subject to adjustment from time to time as
provided in Sections 11 and 13(a) hereof and shall be
payable in accordance with paragraph (c) below.
(c) Upon receipt of a Rights Certificate
representing exercisable Rights, with the form of
election to purchase and the certificate duly executed,
accompanied by payment, with respect to each Right so
exercised, of the Purchase Price per one one-hundredth of
a share of Preferred Stock (or other shares, securities,
cash or other assets, as the case may be) to be purchased
as set forth below and an amount equal to any applicable
transfer tax, the Rights Agent shall, subject to Section
20(k) hereof, thereupon promptly (i) (A) requisition from
any transfer agent of the shares of Preferred Stock (or
make available, if the Rights Agent is the transfer agent
for such shares) certificates for the total number of one
one-hundredths of a share of Preferred Stock to be
purchased and the Company hereby irrevocably authorizes
its transfer agent to comply with all such requests, or
(B) if the Company shall have elected to deposit the
total number of shares of Preferred Stock issuable upon
exercise of the Rights hereunder with a depositary agent,
requisition from the depositary agent depositary receipts
representing such number of one one-hundredths of a share
of Preferred Stock as are to be purchased (in which case
certificates for the shares of Preferred Stock
represented by such receipts shall be deposited by the
transfer agent with the depositary agent) and the Company
will direct the depositary agent to comply with such
request, (ii) requisition from the Company the amount of
cash, if any, to be paid in lieu of fractional shares in
accordance with Section 14 hereof, (iii) after receipt of
such certificates or depositary receipts, cause the same
to be delivered to or upon the order of the registered
holder of such Rights Certificate, registered in such
name or names as may be designated by such holder, and
(iv) after receipt thereof, deliver such cash, if any, to
or upon the order of the registered holder of such Rights
Certificate. The payment of the Purchase Price (as such
amount may be reduced pursuant to Section 11(a)(iii)
hereof) shall be made in cash or by certified check, bank
check, bank draft or money order payable to the order of
the Company. In the event that the Company is obligated
to issue other securities (including Common Stock) of the
Company, pay cash and/or distribute other property
pursuant to Section 11(a) hereof, the Company will make
all arrangements necessary so that such other securities,
cash and/or other property are available for distribution
by the Rights Agent, if and when appropriate. The
Company reserves the right to require prior to the
occurrence of a Triggering Event that, upon any exercise
of Rights, a number of Rights be exercised so that only
whole shares of Preferred Stock be issued. In addition,
if the Company shall determine that a registration
statement is required following the Distribution Date,
the Company may, subject to the provisions of Section
9(c) hereof, temporarily suspend the exercisability of
the Rights until such time as a registration statement
has been declared effective. Notwithstanding any
provision of this Agreement to the contrary, the Rights
shall not be exercisable in any jurisdiction if the
requisite qualification in such jurisdiction shall not
have been obtained, the exercise thereof shall not be
permitted under applicable law or a registration
statement shall not have been declared effective.
(d) In case the registered holder of any
Rights Certificate shall exercise less than all the
Rights evidenced thereby, a new Rights Certificate
evidencing Rights equivalent to the Rights remaining
unexercised shall be issued by the Rights Agent and
delivered to, or upon the order of, the registered holder
of such Rights Certificate, registered in such name or
names as may be designated by such holder, subject to the
provisions of Section 14 hereof.
(e) Notwithstanding anything in this
Agreement to the contrary, from and after the first
occurrence of a Section 11(a)(ii) Event, any Rights
beneficially owned by (i) an Acquiring Person or an
Associate or Affiliate of an Acquiring Person, (ii) a
transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee after
such Acquiring Person becomes such, or (iii) a transferee
of such Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee prior to or
concurrently with such Acquiring Person becoming such and
receives such Rights pursuant to either (A) a transfer
(whether or not for consideration) from such Acquiring
Person to holders of equity interests in such Acquiring
Person or to any Person with whom such Acquiring Person
has any continuing agreement, arrangement or
understanding regarding the transferred Rights or (B) a
transfer which the Board has determined is part of a
plan, arrangement or understanding which has as a primary
purpose or effect the avoidance of this Section 7(e)
(provided, however, that following the first occurrence
of either of the events set forth in clauses (i) and (ii)
of the first proviso to Section 23(a) hereof, the
determination described in this clause (B) shall be made
by the vote of a majority of the Continuing Directors),
shall become null and void without any further action and
no holder of such Rights shall have any rights whatsoever
with respect to such Rights, whether under any provision
of this Agreement or otherwise. The Company shall use
all reasonable efforts to insure that the provisions of
this Section 7(e) and Section 4(b) hereof are complied
with, but shall have no liability to any holder of Rights
Certificates or other Person as a result of its failure
to make any determinations with respect to an Acquiring
Person or its Affiliates, Associates or transferees
hereunder.
(f) Notwithstanding anything in this
Agreement to the contrary, neither the Rights Agent nor
the Company shall be obligated to undertake any action
with respect to a registered holder upon the occurrence
of any purported exercise as set forth in this Section 7
unless such registered holder shall have (i) completed
and signed the certificate contained in the form of
election to purchase set forth on the reverse side of the
Rights Certificate surrendered for such exercise, and
(ii) provided such additional evidence of the identity of
the Beneficial Owner (or former Beneficial Owner) or
Affiliates or Associates thereof as the Company shall
reasonably request.
Section 8. Cancellation and Destruction of
Rights Certificates. All Rights Certificates surrendered
for the purpose of exercise, transfer, split up,
combination or exchange shall, if surrendered to the
Company or any of its agents, be delivered to the Rights
Agent for cancellation or in cancelled form, or, if
surrendered to the Rights Agent, shall be cancelled by
it, and no Rights Certificates shall be issued in lieu
thereof except as expressly permitted by any of the
provisions of this Agreement. The Company shall deliver
to the Rights Agent for cancellation and retirement, and
the Rights Agent shall so cancel and retire, any other
Rights Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights
Agent shall deliver all cancelled Rights Certificates to
the Company, or shall, at the written request of the
Company, destroy such cancelled Rights Certificates, and
in such case shall deliver a certificate of destruction
thereof to the Company.
Section 9. Reservation and Availability of
Capital Stock. (a) The Company covenants and agrees
that it will cause to be reserved and kept available out
of its authorized and unissued shares of Preferred Stock
(and, following the occurrence of a Triggering Event, out
of its authorized and unissued shares of Common Stock
and/or other securities or out of its authorized and
issued shares held in its treasury), the number of shares
of Preferred Stock (and, following the occurrence of a
Triggering Event, Common Stock and/or other securities)
that, as provided in this Agreement including Section
11(a)(iii) hereof, will be sufficient to permit the
exercise in full of all outstanding Rights.
(b) So long as the shares of Preferred
Stock (and, following the occurrence of a Triggering
Event, Common Stock and/or other securities) issuable and
deliverable upon the exercise of the Rights may be listed
on any national securities exchange, the Company shall
use its best efforts to cause, from and after such time
as the Rights become exercisable, all shares reserved for
such issuance to be listed on such exchange upon official
notice of issuance upon such exercise.
(c) The Company shall use its best
efforts to (i) file, as soon as practicable following the
earliest date after the first occurrence of a Section
11(a)(ii) Event on which the consideration to be
delivered by the Company upon exercise of the Rights has
been determined in accordance with Section 11(a)(iii)
hereof, or as soon as is required by law following the
Distribution Date, as the case may be, a registration
statement under the Securities Act of 1933 (the "Act"),
with respect to the securities purchasable upon exercise
of the Rights on an appropriate form, (ii) cause such
registration statement to become effective as soon as
practicable after such filing, and (iii) cause such
registration statement to remain effective (with a
prospectus at all times meeting the requirements of the
Act) until the earlier of (A) the date as of which the
Rights are no longer exercisable for such securities, and
(B) the date of the expiration of the Rights. The
Company will also take such action as may be appropriate
under, or to ensure compliance with, the securities or
"blue sky" laws of the various states in connection with
the exercisability of the Rights. The Company may
temporarily suspend, for a period of time not to exceed
ninety (90) days after the date set forth in clause (i)
of the first sentence of this Section 9(c), the
exercisability of the Rights in order to prepare and file
such registration statement and permit it to become
effective. Upon any such suspension, the Company shall
issue a public announcement stating that the
exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time
as the suspension is no longer in effect. In addition,
if the Company shall determine that a registration
statement is required following the Distribution Date,
the Company may temporarily suspend the exercisability of
the Rights until such time as a registration statement
has been declared effective. Notwithstanding any
provision of this Agreement to the contrary, the Rights
shall not be exercisable in any jurisdiction if the
requisite qualification in such jurisdiction shall not
have been obtained, the exercise thereof shall not be
permitted under applicable law or a registration
statement shall not have been declared effective.
(d) The Company covenants and agrees that
it will take all such action as may be necessary to
ensure that all one one-hundredths of a share of
Preferred Stock (and, following the occurrence of a
Triggering Event, Common Stock and/or other securities)
delivered upon exercise of Rights shall, at the time of
delivery of the certificates for such shares (subject to
payment of the Purchase Price), be duly and validly
authorized and issued and fully paid and nonassessable.
(e) The Company further covenants and
agrees that it will pay when due and payable any and all
federal and state transfer taxes and charges which may be
payable in respect of the issuance or delivery of the
Rights Certificates and of any certificates for a number
of one one-hundredths of a share of Preferred Stock (or
Common Stock and/or other securities, as the case may be)
upon the exercise of Rights. The Company shall not,
however, be required to pay any transfer tax which may be
payable in respect of any transfer or delivery of Rights
Certificates to a Person other than, or the issuance or
delivery of a number of one one-hundredths of a share of
Preferred Stock (or Common Stock and/or other securities,
as the case may be) in respect of a name other than that
of, the registered holder of the Rights Certificates
evidencing Rights surrendered for exercise or to issue or
deliver any certificates for a number of one
one-hundredths of a share of Preferred Stock (or Common
Stock and/or other securities, as the case may be) in a
name other than that of the registered holder upon the
exercise of any Rights until such tax shall have been
paid (any such tax being payable by the holder of such
Rights Certificate at the time of surrender) or until it
has been established to the Company's satisfaction that
no such tax is due.
Section 10. Preferred Stock Record Date. Each
person in whose name any certificate for a number of one
one-hundredths of a share of Preferred Stock (or Common
Stock and/or other securities, as the case may be) is
issued upon the exercise of Rights shall for all purposes
be deemed to have become the holder of record of such
fractional shares of Preferred Stock (or Common Stock
and/or other securities, as the case may be) represented
thereby on, and such certificate shall be dated, the date
upon which the Rights Certificate evidencing such Rights
was duly surrendered and payment of the Purchase Price
(and all applicable transfer taxes) was made; provided,
however, that if the date of such surrender and payment
is a date upon which the Preferred Stock (or Common Stock
and/or other securities, as the case may be) transfer
books of the Company are closed, such Person shall be
deemed to have become the record holder of such shares
(fractional or otherwise) on, and such certificate shall
be dated, the next succeeding Business Day on which the
Preferred Stock (or Common Stock and/or other securities,
as the case may be) transfer books of the Company are
open. Prior to the exercise of the Rights evidenced
thereby, the holder of a Rights Certificate shall not be
entitled to any rights of a stockholder of the Company
with respect to shares for which the Rights shall be
exercisable, including, without limitation, the right to
vote, to receive dividends or other distributions or to
exercise any preemptive rights, and shall not be entitled
to receive any notice of any proceedings of the Company,
except as provided herein.
Section 11. Adjustment of Purchase Price,
Number and Kind of Shares or Number of Rights. The
Purchase Price, the number and kind of shares covered by
each Right and the number of Rights outstanding are
subject to adjustment from time to time as provided in
this Section 11.
(a)(i) In the event the
Company shall at any time after the date of
this Agreement (A) declare a dividend on the
Preferred Stock payable in shares of
Preferred Stock, (B) subdivide the
outstanding Preferred Stock, (C) combine the
outstanding Preferred Stock into a smaller
number of shares, or (D) issue any shares of
its capital stock in a reclassification of
the Preferred Stock (including any such
reclassification in connection with a
consolidation or merger in which the Company
is the continuing or surviving corporation),
except as otherwise provided in this Section
11(a) and Section 7(e) hereof, the Purchase
Price in effect at the time of the record
date for such dividend or of the effective
date of such subdivision, combination or
reclassification, and the number and kind of
shares of Preferred Stock or capital stock,
as the case may be, issuable on such date,
shall be proportionately adjusted so that the
holder of any Right exercised after such time
shall be entitled to receive, upon payment of
the Purchase Price then in effect, the
aggregate number and kind of shares of
Preferred Stock or capital stock, as the case
may be, which, if such Right had been
exercised immediately prior to such date and
at a time when the Preferred Stock transfer
books of the Company were open, he would have
owned upon such exercise and been entitled to
receive by virtue of such dividend,
subdivision, combination or reclassification.
If an event occurs which would require an
adjustment under both this Section 11(a)(i)
and Section 11(a)(ii) hereof, the adjustment
provided for in this Section 11(a)(i) shall
be in addition to, and shall be made prior
to, any adjustment required pursuant to
Section 11(a)(ii) hereof.
(ii) In the event that any
Person (other than the Company, any
Subsidiary of the Company, any employee
benefit plan of the Company or of any
Subsidiary of the Company, or any Person or
entity organized, appointed or established by
the Company for or pursuant to the terms of
any such plan), alone or together with its
Affiliates and Associates, shall, at any time
after the Rights Dividend Declaration Date,
become the Beneficial Owner of 15% or more of
the shares of Common Stock then outstanding,
unless the event causing the 15% threshold to
be crossed is a transaction set forth in
Section 13(a) hereof, or is an acquisition of
shares of Common Stock pursuant to a tender
offer or an exchange offer for all
outstanding shares of Common Stock at a price
and on terms determined by at least a
majority of the members of the Board who are
not officers of the Company and who are not
representatives, nominees, Affiliates or
Associates of an Acquiring Person, after
receiving advice from one or more investment
banking firms, to be (a) at a price which is
fair to the Company's stockholders (taking
into account all factors which such members
of the Board deem relevant including, without
limitation, prices which could reasonably be
achieved if the Company or its assets were
sold on an orderly basis designed to realize
maximum value) and (b) otherwise in the best
interests of the Company and its stockholders
(hereinafter a "Qualifying Offer"), then,
promptly following the occurrence of any
event described in Section 11(a)(ii) hereof,
proper provision shall be made so that each
holder of a Right (except as provided below
and in Section 7(e) hereof) shall thereafter
have the right to receive, upon exercise
thereof at the then current Purchase Price in
accordance with the terms of this Agreement,
in lieu of a number of one one-hundredths of
a share of Preferred Stock, such number of
shares of Common Stock of the Company as
shall equal the result obtained by (x)
multiplying the then current Purchase Price
by the then number of one one-hundredths of a
share of Preferred Stock for which a Right
was exercisable immediately prior to the
first occurrence of a Section 11(a)(ii)
Event, and (y) dividing that product (which,
following such first occurrence, shall
thereafter be referred to as the "Purchase
Price" for each Right and for all purposes of
this Agreement) by 50% of the current market
price (determined pursuant to Section 11(d)
hereof) per share of Common Stock on the date
of such first occurrence (such number of
shares, the "Adjustment Shares").
(iii) In the event that the number
of shares of Common Stock which are
authorized by the Company's certificate of
incorporation but not outstanding or reserved
for issuance for purposes other than upon
exercise of the Rights are not sufficient to
permit the exercise in full of the Rights in
accordance with the foregoing subparagraph
(ii) of this Section 11(a), the Company shall
(A) determine the excess of (1) the value of
the Adjustment Shares issuable upon the
exercise of a Right (the "Current Value")
over (2) the Purchase Price (such excess, the
"Spread"), and (B) with respect to each Right
(subject to Section 7(e) hereof), make
adequate provision to substitute for the
Adjustment Shares, upon the exercise of a
Right and payment of the applicable Purchase
Price, (1) cash, (2) a reduction in the
Purchase Price, (3) Common Stock or other
equity securities of the Company (including,
without limitation, shares, or units of
shares, of preferred stock which the Board
has deemed to have the same value as shares
of Common Stock (such shares of preferred
stock being referred to as "common stock
equivalents")), (4) debt securities of the
Company, (5) other assets, or (6) any
combination of the foregoing, having an
aggregate value equal to the Current Value,
where such aggregate value has been
determined by the Board based upon the advice
of a nationally recognized investment banking
firm selected by the Board; provided,
however, that if the Company shall not have
made adequate provision to deliver value
pursuant to clause (B) above within thirty
(30) days following the later of (x) the
first occurrence of a Section 11(a)(ii) Event
and (y) the date on which the Company's right
of redemption pursuant to Section 23(a)
expires (the later of (x) and (y) being
referred to herein as the "Section 11(a)(ii)
Trigger Date"), then the Company shall be
obligated to deliver, upon the surrender for
exercise of a Right and without requiring
payment of the Purchase Price, shares of
Common Stock (to the extent available) and
then, if necessary, cash, which shares and/or
cash have an aggregate value equal to the
Spread. If the Board shall determine in good
faith that it is likely that sufficient
additional shares of Common Stock could be
authorized for issuance upon exercise in full
of the Rights, the thirty (30) day period set
forth above may be extended to the extent
necessary, but not more than ninety (90) days
after the Section 11(a)(ii) Trigger Date, in
order that the Company may seek shareholder
approval for the authorization of such
additional shares (such period, as it may be
extended, the "Substitution Period"). To the
extent that the Company determines that some
action need be taken pursuant to the first
and/or second sentences of this Section
11(a)(iii), the Company (x) shall provide,
subject to Section 7(e) hereof, that such
action shall apply uniformly to all
outstanding Rights, and (y) may suspend the
exercisability of the Rights until the
expiration of the Substitution Period in
order to seek any authorization of additional
shares and/or to decide the appropriate form
of distribution to be made pursuant to such
first sentence and to determine the value
thereof. In the event of any such
suspension, the Company shall issue a public
announcement stating that the exercisability
of the Rights has been temporarily suspended,
as well as a public announcement at such time
as the suspension is no longer in effect.
For purposes of this Section 11(a)(iii), the
value of the Common Stock shall be the
current market price (as determined pursuant
to Section 11(d) hereof) per share of the
Common Stock on the Section 11(a)(ii) Trigger
Date and the value of any "common stock
equivalent" shall be deemed to have the same
value as the Common Stock on such date.
Notwithstanding the foregoing provisions of
this subparagraph (iii), in the event that,
pursuant to this subparagraph (iii), upon the
exercise of the Rights the Company shall be
required to deliver value in any form other
than shares of Common Stock, such value shall
be delivered only to the extent and at the
time that, if required, the approval by
appropriate financial regulatory authorities
with supervisory jurisdiction over the
Company and its financial Subsidiaries of
such delivery of such value shall have been
obtained.
(b) In case the Company shall fix a
record date for the issuance of rights, options or
warrants to all holders of Preferred Stock entitling them
to subscribe for or purchase (for a period expiring
within forty-five (45) calendar days after such record
date) Preferred Stock (or shares having the same rights,
privileges and preferences as the shares of Preferred
Stock ("equivalent preferred stock")) or securities
convertible into Preferred Stock or equivalent preferred
stock at a price per share of Preferred Stock or per
share of equivalent preferred stock (or having a
conversion price per share, if a security convertible
into Preferred Stock or equivalent preferred stock) less
than the current market price (as determined pursuant to
Section 11(d) hereof) per share of Preferred Stock on
such record date, the Purchase Price to be in effect
after such record date shall be determined by multiplying
the Purchase Price in effect immediately prior to such
record date by a fraction, the numerator of which shall
be the number of shares of Preferred Stock outstanding on
such record date, plus the number of shares of Preferred
Stock which the aggregate offering price of the total
number of shares of Preferred Stock and/or equivalent
preferred stock so to be offered (and/or the aggregate
initial conversion price of the convertible securities so
to be offered) would purchase at such current market
price, and the denominator of which shall be the number
of shares of Preferred Stock outstanding on such record
date, plus the number of additional shares of Preferred
Stock and/or equivalent preferred stock to be offered for
subscription or purchase (or into which the convertible
securities so to be offered are initially convertible).
In case such subscription price may be paid by delivery
of consideration part or all of which may be in a form
other than cash, the value of such consideration shall be
as determined in good faith by the Board, whose
determination shall be described in a statement filed
with the Rights Agent and shall be binding on the Rights
Agent and the holders of the Rights. Shares of Preferred
Stock owned by or held for the account of the Company
shall not be deemed outstanding for the purpose of any
such computation. Such adjustment shall be made
successively whenever such a record date is fixed, and in
the event that such rights or warrants are not so issued,
the Purchase Price shall be adjusted to be the Purchase
Price which would then be in effect if such record date
had not been fixed.
(c) In case the Company shall fix a
record date for a distribution to all holders of
Preferred Stock (including any such distribution made in
connection with a consolidation or merger in which the
Company is the continuing corporation) of evidences of
indebtedness, cash (other than a regular quarterly cash
dividend out of the earnings or retained earnings of the
Company), assets (other than a dividend payable in
Preferred Stock, but including any dividend payable in
stock other than Preferred Stock) or subscription rights
or warrants (excluding those referred to in Section 11(b)
hereof), the Purchase Price to be in effect after such
record date shall be determined by multiplying the
Purchase Price in effect immediately prior to such record
date by a fraction, the numerator of which shall be the
current market price (as determined pursuant to Section
11(d) hereof) per share of Preferred Stock on such record
date, less the fair market value (as determined in good
faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed
with the Rights Agent) of the portion of the cash, assets
or evidences of indebtedness so to be distributed or of
such subscription rights or warrants applicable to a
share of Preferred Stock and the denominator of which
shall be such current market price (as determined
pursuant to Section 11(d) hereof) per share of Preferred
Stock. Such adjustments shall be made successively
whenever such a record date is fixed, and in the event
that such distribution is not so made, the Purchase Price
shall be adjusted to be the Purchase Price which would
have been in effect if such record date had not been
fixed.
(d)(i) For the purpose of any computation
hereunder, other than computations made pursuant to
Section 11(a)(iii) hereof, the "current market price" per
share of Common Stock on any date shall be deemed to be
the average of the daily closing prices per share of such
Common Stock for the thirty (30) consecutive Trading Days
(as such term is hereinafter defined) immediately prior
to such date, and for purposes of computations made
pursuant to Section 11(a)(iii) hereof, the "current
market price" per share of Common Stock on any date shall
be deemed to be the average of the daily closing prices
per share of such Common Stock for the ten (10)
consecutive Trading Days immediately following such date;
provided, however, that in the event that the current
market price per share of the Common Stock is determined
during a period following the announcement by the issuer
of such Common Stock of (A) a dividend or distribution on
such Common Stock payable in shares of such Common Stock
or securities convertible into shares of such Common
Stock (other than the Rights), or (B) any subdivision,
combination or reclassification of such Common Stock, and
prior to the expiration of the requisite thirty (30)
Trading Day or ten (10) Trading Day period, as set forth
above, after the ex-dividend date for such dividend or
distribution, or the record date for such subdivision,
combination or reclassification, then, and in each such
case, the "current market price" shall be properly
adjusted to take into account ex-dividend trading. The
closing price for each day shall be the last sale price,
regular way, or, in case no such sale takes place on such
day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York
Stock Exchange or, if the shares of Common Stock are not
listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities
listed on the principal national securities exchange on
which the shares of Common Stock are listed or admitted
to trading or, if the shares of Common Stock are not
listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the
average of the high bid and low asked prices in the
over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated
Quotation System ("NASDAQ") or such other system then in
use, or, if on any such date the shares of Common Stock
are not quoted by any such organization, the average of
the closing bid and asked prices as furnished by a
professional market maker making a market in the Common
Stock selected by the Board. If on any such date no
market maker is making a market in the Common Stock, the
fair value of such shares on such date as determined in
good faith by the Board shall be used. The term "Trading
Day" shall mean a day on which the principal national
securities exchange on which the shares of Common Stock
are listed or admitted to trading is open for the
transaction of business or, if the shares of Common Stock
are not listed or admitted to trading on any national
securities exchange, a Business Day. If the Common Stock
is not publicly held or not so listed or traded, "current
market price" per share shall mean the fair value per
share as determined in good faith by the Board, whose
determination shall be described in a statement filed
with the Rights Agent and shall be conclusive for all
purposes.
(ii) For the purpose of any computation
hereunder, the "current market price" per share of
Preferred Stock shall be determined in the same manner as
set forth above for the Common Stock in clause (i) of
this Section 11(d) (other than the last sentence
thereof). If the "current market price" per share of
Preferred Stock cannot be determined in the manner
provided above or if the Preferred Stock is not publicly
held or listed or traded in a manner described in clause
(i) of this Section 11(d), the "current market price" per
share of Preferred Stock shall be conclusively deemed to
be an amount equal to 100 (as such number may be
appropriately adjusted for such events as stock splits,
stock dividends and recapitalizations with respect to the
Common Stock occurring after the date of this Agreement)
multiplied by the current market price per share of the
Common Stock. If neither the Common Stock nor the
Preferred Stock is publicly held or so listed or traded,
"current market price" per share of the Preferred Stock
shall mean the fair value per share as determined in good
faith by the Board, whose determination shall be
described in a statement filed with the Rights Agent and
shall be conclusive for all purposes. For all purposes
of this Agreement, the "current market price" of one one-
hundredth of a share of Preferred Stock shall be equal to
the "current market price" of one share of Preferred
Stock divided by 100.
(e) Anything herein to the contrary
notwithstanding, no adjustment in the Purchase Price
shall be required unless such adjustment would require an
increase or decrease of at least one percent (1%) in the
Purchase Price; provided, however, that any adjustments
which by reason of this Section 11(e) are not required to
be made shall be carried forward and taken into account
in any subsequent adjustment. All calculations under
this Section 11 shall be made to the nearest cent or to
the nearest ten-thousandth of a share of Common Stock or
other share or one-millionth of a share of Preferred
Stock, as the case may be. Notwithstanding the first
sentence of this Section 11(e), any adjustment required
by this Section 11 shall be made no later than the
earlier of (i) three (3) years from the date of the
transaction which mandates such adjustment, or (ii) the
Expiration Date.
(f) If as a result of an adjustment made
pursuant to Section 11(a)(ii) or Section 13(a) hereof,
the holder of any Right thereafter exercised shall become
entitled to receive any shares of capital stock other
than Preferred Stock, thereafter the number of such other
shares so receivable upon exercise of any Right and the
Purchase Price thereof shall be subject to adjustment
from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect
to the Preferred Stock contained in Sections 11(a), (b),
(c), (e), (g), (h), (i), (j), (k) and (m), and the
provisions of Sections 7, 9, 10, 13 and 14 hereof with
respect to the Preferred Stock shall apply on like terms
to any such other shares.
(g) All Rights originally issued by the
Company subsequent to any adjustment made to the Purchase
Price hereunder shall evidence the right to purchase, at
the adjusted Purchase Price, the number of one
one-hundredths of a share of Preferred Stock purchasable
from time to time hereunder upon exercise of the Rights,
all subject to further adjustment as provided herein.
(h) Unless the Company shall have
exercised its election as provided in Section 11(i), upon
each adjustment of the Purchase Price as a result of the
calculations made in Sections 11(b) and (c), each Right
outstanding immediately prior to the making of such
adjustment shall thereafter evidence the right to
purchase, at the adjusted Purchase Price, that number of
one one-hundredths of a share of Preferred Stock
(calculated to the nearest one-millionth) obtained by (i)
multiplying (x) the number of one one-hundredths of a
share covered by a Right immediately prior to this
adjustment, by (y) the Purchase Price in effect
immediately prior to such adjustment of the Purchase
Price, and (ii) dividing the product so obtained by the
Purchase Price in effect immediately after such
adjustment of the Purchase Price.
(i) The Company may elect on or after the
date of any adjustment of the Purchase Price to adjust
the number of Rights, in lieu of any adjustment in the
number of one one-hundredths of a share of Preferred
Stock purchasable upon the exercise of a Right. Each of
the Rights outstanding after the adjustment in the number
of Rights shall be exercisable for the number of one
one-hundredths of a share of Preferred Stock for which a
Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such
adjustment of the number of Rights shall become that
number of Rights (calculated to the nearest
one-ten-thousandth) obtained by dividing the Purchase
Price in effect immediately prior to adjustment of the
Purchase Price by the Purchase Price in effect
immediately after adjustment of the Purchase Price. The
Company shall make a public announcement of its election
to adjust the number of Rights, indicating the record
date for the adjustment, and, if known at the time, the
amount of the adjustment to be made. This record date
may be the date on which the Purchase Price is adjusted
or any day thereafter, but, if the Rights Certificates
have been issued, shall be at least ten (10) days later
than the date of the public announcement. If Rights
Certificates have been issued, upon each adjustment of
the number of Rights pursuant to this Section 11(i), the
Company shall, as promptly as practicable, cause to be
distributed to holders of record of Rights Certificates
on such record date Rights Certificates evidencing,
subject to Section 14 hereof, the additional Rights to
which such holders shall be entitled as a result of such
adjustment, or, at the option of the Company, shall cause
to be distributed to such holders of record in
substitution and replacement for the Rights Certificates
held by such holders prior to the date of adjustment, and
upon surrender thereof, if required by the Company, new
Rights Certificates evidencing all the Rights to which
such holders shall be entitled after such adjustment.
Rights Certificates so to be distributed shall be issued,
executed and countersigned in the manner provided for
herein (and may bear, at the option of the Company, the
adjusted Purchase Price) and shall be registered in the
names of the holders of record of Rights Certificates on
the record date specified in the public announcement.
(j) Irrespective of any adjustment or
change in the Purchase Price or the number of one one-
hundredths of a share of Preferred Stock issuable upon
the exercise of the Rights, the Rights Certificates
theretofore and thereafter issued may continue to express
the Purchase Price per one one-hundredth of a share and
the number of one one-hundredths of a share which were
expressed in the initial Rights Certificates issued
hereunder.
(k) Before taking any action that would
cause an adjustment reducing the Purchase Price below the
then stated value, if any, of the number of one
one-hundredths of a share of Preferred Stock issuable
upon exercise of the Rights, the Company shall take any
corporate action which may, in the opinion of its
counsel, be necessary in order that the Company may
validly and legally issue fully paid and nonassessable
such number of one one-hundredths of a share of Preferred
Stock at such adjusted Purchase Price.
(l) In any case in which this Section 11
shall require that an adjustment in the Purchase Price be
made effective as of a record date for a specified event,
the Company may elect to defer until the occurrence of
such event the issuance to the holder of any Right
exercised after such record date the number of one one-
hundredths of a share of Preferred Stock and other
capital stock or securities of the Company, if any,
issuable upon such exercise over and above the number of
one one-hundredths of a share of Preferred Stock and
other capital stock or securities of the Company, if any,
issuable upon such exercise on the basis of the Purchase
Price in effect prior to such adjustment; provided,
however, that the Company shall deliver to such holder a
due bill or other appropriate instrument evidencing such
holder's right to receive such additional shares
(fractional or otherwise) or securities upon the
occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the
contrary notwithstanding, the Company shall be entitled
to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this
Section 11, as and to the extent that in its good faith
judgment the Board shall determine to be advisable in
order that any (i) consolidation or subdivision of the
Preferred Stock, (ii) issuance wholly for cash of any
shares of Preferred Stock at less than the current market
price, (iii) issuance wholly for cash of shares of
Preferred Stock or securities which by their terms are
convertible into or exchangeable for shares of Preferred
Stock, (iv) stock dividends or (v) issuance of rights,
options or warrants referred to in this Section 11,
hereafter made by the Company to holders of its Preferred
Stock shall not be taxable to such stockholders.
(n) The Company covenants and agrees that
it shall not, at any time after the Distribution Date,
(i) consolidate with any other Person (other than a
Subsidiary of the Company in a transaction which complies
with Section 11(o) hereof), (ii) merge with or into any
other Person (other than a Subsidiary of the Company in a
transaction which complies with Section 11(o) hereof), or
(iii) sell or transfer (or permit any Subsidiary to sell
or transfer), in one transaction, or a series of related
transactions, assets or earning power aggregating more
than 50% of the assets or earning power of the Company
and its Subsidiaries (taken as a whole) to any other
Person or Persons (other than the Company and/or any of
its Subsidiaries in one or more transactions each of
which complies with Section 11(o) hereof), if (x) at the
time of or immediately after such consolidation, merger
or sale there are any rights, warrants or other
instruments or securities outstanding or agreements in
effect which would substantially diminish or otherwise
eliminate the benefits intended to be afforded by the
Rights or (y) prior to, simultaneously with or
immediately after such consolidation, merger or sale, the
shareholders of the Person who constitutes, or would
constitute, the "Principal Party" for purposes of Section
13(a) hereof shall have received a distribution of Rights
previously owned by such Person or any of its Affiliates
and Associates.
(o) The Company covenants and agrees
that, after the Distribution Date, it will not, except as
permitted by Section 23 or Section 26 hereof, take (or
permit any Subsidiary to take) any action if at the time
such action is taken it is reasonably foreseeable that
such action will diminish substantially or otherwise
eliminate the benefits intended to be afforded by the
Rights.
(p) Anything in this Agreement to the
contrary notwithstanding, in the event that the Company
shall at any time after the Rights Dividend Declaration
Date and prior to the Distribution Date (i) declare a
dividend on the outstanding shares of Common Stock
payable in shares of Common Stock, (ii) subdivide the
outstanding shares of Common Stock, or (iii) combine the
outstanding shares of Common Stock into a smaller number
of shares, the number of Rights associated with each
share of Common Stock then outstanding, or issued or
delivered thereafter but prior to the Distribution Date,
shall be proportionately adjusted so that the number of
Rights thereafter associated with each share of Common
Stock following any such event shall equal the result
obtained by multiplying the number of Rights associated
with each share of Common Stock immediately prior to such
event by a fraction the numerator of which shall be the
total number of shares of Common Stock outstanding
immediately prior to the occurrence of the event and the
denominator of which shall be the total number of shares
of Common Stock outstanding immediately following the
occurrence of such event.
Section 12. Certificate of Adjusted Purchase
Price or Number of Shares. Whenever an adjustment is
made as provided in Section 11 and Section 13 hereof, the
Company shall (a) promptly prepare a certificate setting
forth such adjustment and a brief statement of the facts
accounting for such adjustment, (b) promptly file with
the Rights Agent, and with each transfer agent for the
Preferred Stock and the Common Stock, a copy of such
certificate, and (c) mail a brief summary thereof to each
holder of a Rights Certificate (or, if prior to the
Distribution Date, to each holder of a certificate
representing shares of Common Stock) in accordance with
Section 25 hereof. The Rights Agent shall be fully
protected in relying on any such certificate and on any
adjustment therein contained.
Section 13. Consolidation, Merger or Sale or
Transfer of Assets or Earning Power.
(a) In the event that, following the
Stock Acquisition Date, directly or indirectly, (x) the
Company shall consolidate with, or merge with and into,
any other Person (other than a Subsidiary of the Company
in a transaction which complies with Section 11(o)
hereof), and the Company shall not be the continuing or
surviving corporation of such consolidation or merger,
(y) any Person (other than a Subsidiary of the Company in
a transaction which complies with Section 11(o) hereof)
shall consolidate with, or merge with or into, the
Company, and the Company shall be the continuing or
surviving corporation of such consolidation or merger
and, in connection with such consolidation or merger, all
or part of the outstanding shares of Common Stock shall
be changed into or exchanged for stock or other
securities of any other Person or cash or any other
property, or (z) the Company shall sell or otherwise
transfer (or one or more of its Subsidiaries shall sell
or otherwise transfer), in one transaction or a series of
related transactions, assets or earning power aggregating
more than 50% of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to any
Person or Persons (other than the Company or any
Subsidiary of the Company in one or more transactions
each of which complies with Section 11(o) hereof), then,
and in each such case (except as may be contemplated by
Section 13(d) hereof) proper provision shall be made so
that: (i) each holder of a Right, except as provided in
Section 7(e) hereof, shall thereafter have the right to
receive, upon the exercise thereof at the then current
Purchase Price in accordance with the terms of this
Agreement, such number of validly authorized and issued,
fully paid, non-assessable and freely tradeable shares of
Common Stock of the Principal Party (as such term is
hereinafter defined), not subject to any liens,
encumbrances, rights of first refusal or other adverse
claims, as shall be equal to the result obtained by (1)
multiplying the then current Purchase Price by the number
of one one-hundredths of a share of Preferred Stock for
which a Right is exercisable immediately prior to the
first occurrence of a Section 13 Event (or, if a Section
11(a)(ii) Event has occurred prior to the first
occurrence of a Section 13 Event, multiplying the number
of such one one-hundredths of a share for which a Right
was exercisable immediately prior to the first occurrence
of a Section 11(a)(ii) Event by the Purchase Price in
effect immediately prior to such first occurrence), and
dividing that product (which, following the first
occurrence of a Section 13 Event, shall be referred to as
the "Purchase Price" for each Right and for all purposes
of this Agreement) by (2) 50% of the current market price
(determined pursuant to Section 11(d)(i) hereof) per
share of the Common Stock of such Principal Party on the
date of consummation of such Section 13 Event; (ii) such
Principal Party shall thereafter be liable for, and shall
assume, by virtue of such Section 13 Event, all the
obligations and duties of the Company pursuant to this
Agreement; (iii) the term "Company" shall thereafter be
deemed to refer to such Principal Party, it being
specifically intended that the provisions of Section 11
hereof shall apply only to such Principal Party following
the first occurrence of a Section 13 Event; (iv) such
Principal Party shall take such steps (including, but not
limited to, the reservation of a sufficient number of
shares of its Common Stock) in connection with the
consummation of any such transaction as may be necessary
to assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be, in relation
to its shares of Common Stock thereafter deliverable upon
the exercise of the Rights; and (v) the provisions of
Section 11(a)(ii) hereof shall be of no effect following
the first occurrence of any Section 13 Event.
(b) "Principal Party" shall mean
(i) in the case of any
transaction described in clause (x) or (y) of
the first sentence of Section 13(a), the
Person that is the issuer of any securities
into which shares of Common Stock of the
Company are converted in such merger or
consolidation, and if no securities are so
issued, the Person that is the other party to
such merger or consolidation; and
(ii) in the case of any
transaction described in clause (z) of the
first sentence of Section 13(a), the Person
that is the party receiving the greatest
portion of the assets or earning power
transferred pursuant to such transaction or
transactions;
provided, however, that in any such case, (1) if the
Common Stock of such Person is not at such time and has
not been continuously over the preceding twelve (12)
month period registered under Section 12 of the Exchange
Act, and such Person is a direct or indirect Subsidiary
of another Person the Common Stock of which is and has
been so registered, "Principal Party" shall refer to such
other Person; and (2) in case such Person is a
Subsidiary, directly or indirectly, of more than one
Person, the Common Stocks of two or more of which are and
have been so registered, "Principal Party" shall refer to
whichever of such Persons is the issuer of the Common
Stock having the greatest aggregate market value.
(c) The Company shall not consummate any
such consolidation, merger, sale or transfer unless the
Principal Party shall have a sufficient number of
authorized shares of its Common Stock which have not been
issued or reserved for issuance to permit the exercise in
full of the Rights in accordance with this Section 13 and
unless prior thereto the Company and such Principal Party
shall have executed and delivered to the Rights Agent a
supplemental agreement providing for the terms set forth
in paragraphs (a) and (b) of this Section 13 and further
providing that, as soon as practicable after the date of
any consolidation, merger or sale of assets mentioned in
paragraph (a) of this Section 13, the Principal Party
will
(i) prepare and file a
registration statement under the Act, with
respect to the Rights and the securities
purchasable upon exercise of the Rights on an
appropriate form, and will use its best
efforts to cause such registration statement
to (A) become effective as soon as
practicable after such filing and (B) remain
effective (with a prospectus at all times
meeting the requirements of the Act) until
the Expiration Date; and
(ii) will deliver to holders
of the Rights historical financial statements
for the Principal Party and each of its
Affiliates which comply in all respects with
the requirements for registration on Form 10
under the Exchange Act.
The provisions of this Section 13 shall similarly apply
to successive mergers or consolidations or sales or other
transfers. In the event that a Section 13 Event shall
occur at any time after the occurrence of a Section
11(a)(ii) Event, the Rights which have not theretofore
been exercised shall thereafter become exercisable in the
manner described in Section 13(a).
(d) Notwithstanding anything in this
Agreement to the contrary, this Section 13 shall not be
applicable to a transaction described in subparagraphs
(x) and (y) of Section 13(a) if (i) such transaction is
consummated with a Person or Persons who acquired shares
of Common Stock pursuant to a Qualifying Offer (or a
wholly owned subsidiary of any such Person or Persons),
(ii) the price per share of Common Stock offered in such
transaction is not less than the price per share of
Common Stock paid to all holders of shares of Common
Stock whose shares were purchased pursuant to such
Qualifying Offer and (iii) the form of consideration
being offered to the remaining holders of shares of
Common Stock pursuant to such transaction is the same as
the form of consideration paid pursuant to such
Qualifying Offer. Upon consummation of any such
transaction contemplated by this Section 13(d), all
Rights hereunder shall expire.
Section 14. Fractional Rights and Fractional
Shares.
(a) The Company shall not be required to
issue fractions of Rights, except prior to the
Distribution Date as provided in Section 11(p) hereof, or
to distribute Rights Certificates which evidence
fractional Rights. In lieu of such fractional Rights,
there shall be paid to the registered holders of the
Rights Certificates with regard to which such fractional
Rights would otherwise be issuable, an amount in cash
equal to the same fraction of the current market value of
a whole Right. For purposes of this Section 14(a), the
current market value of a whole Right shall be the
closing price of the Rights for the Trading Day
immediately prior to the date on which such fractional
Rights would have been otherwise issuable. The closing
price of the Rights for any day shall be the last sale
price, regular way, or, in case no such sale takes place
on such day, the average of the closing bid and asked
prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on
the New York Stock Exchange or, if the Rights are not
listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities
listed on the principal national securities exchange on
which the Rights are listed or admitted to trading, or if
the Rights are not listed or admitted to trading on any
national securities exchange, the last quoted price or,
if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported
by NASDAQ or such other system then in use or, if on any
such date the Rights are not quoted by any such
organization, the average of the closing bid and asked
prices as furnished by a professional market maker making
a market in the Rights selected by the Board of Directors
of the Company. If on any such date no such market maker
is making a market in the Rights the fair value of the
Rights on such date as determined in good faith by the
Board of Directors of the Company shall be used.
(b) The Company shall not be required to
issue fractions of shares of Preferred Stock (other than
fractions which are integral multiples of one
one-hundredth of a share of Preferred Stock) upon
exercise of the Rights or to distribute certificates
which evidence fractional shares of Preferred Stock
(other than fractions which are integral multiples of one
one-hundredth of a share of Preferred Stock). In lieu of
fractional shares of Preferred Stock that are not
integral multiples of one one-hundredth of a share of
Preferred Stock, the Company may pay to the registered
holders of Rights Certificates at the time such Rights
are exercised as herein provided an amount in cash equal
to the same fraction of the current market value of one
one-hundredth of a share of Preferred Stock. For
purposes of this Section 14(b), the current market value
of one one-hundredth of a share of Preferred Stock shall
be one one-hundredth of the closing price of a share of
Preferred Stock (as determined pursuant to Section
11(d)(ii) hereof) for the Trading Day immediately prior
to the date of such exercise.
(c) Following the occurrence of a
Triggering Event, the Company shall not be required to
issue fractions of shares of Common Stock upon exercise
of the Rights or to distribute certificates which
evidence fractional shares of Common Stock. In lieu of
fractional shares of Common Stock, the Company may pay to
the registered holders of Rights Certificates at the time
such Rights are exercised as herein provided an amount in
cash equal to the same fraction of the current market
value of one (1) share of Common Stock. For purposes of
this Section 14(c), the current market value of one share
of Common Stock shall be the closing price of one share
of Common Stock (as determined pursuant to Section
11(d)(i) hereof) for the Trading Day immediately prior to
the date of such exercise.
(d) The holder of a Right by the
acceptance of the Rights expressly waives his right to
receive any fractional Rights or any fractional shares
upon exercise of a Right, except as permitted by this
Section 14.
Section 15. Rights of Action. All rights of
action in respect of this Agreement are vested in the
respective registered holders of the Rights Certificates
(and, prior to the Distribution Date, the registered
holders of the Common Stock); and any registered holder
of any Rights Certificate (or, prior to the Distribution
Date, of the Common Stock), without the consent of the
Rights Agent or of the holder of any other Rights
Certificate (or, prior to the Distribution Date, of the
Common Stock), may, in his own behalf and for his own
benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Company to
enforce, or otherwise act in respect of, his right to
exercise the Rights evidenced by such Rights Certificate
in the manner provided in such Rights Certificate and in
this Agreement. Without limiting the foregoing or any
remedies available to the holders of Rights, it is
specifically acknowledged that the holders of Rights
would not have an adequate remedy at law for any breach
of this Agreement and shall be entitled to specific
performance of the obligations hereunder and injunctive
relief against actual or threatened violations of the
obligations hereunder of any Person subject to this
Agreement.
Section 16. Agreement of Rights Holders.
Every holder of a Right by accepting the same consents
and agrees with the Company and the Rights Agent and with
every other holder of a Right that:
(a) prior to the Distribution Date, the
Rights will be transferable only in connection with the
transfer of Common Stock;
(b) after the Distribution Date, the
Rights Certificates are transferable only on the registry
books of the Rights Agent if surrendered at the principal
office or offices of the Rights Agent designated for such
purposes, duly endorsed or accompanied by a proper
instrument of transfer and with the appropriate forms and
certificates fully executed;
(c) subject to Section 6(a) and Section
7(f) hereof, the Company and the Rights Agent may deem
and treat the person in whose name a Rights Certificate
(or, prior to the Distribution Date, the associated
Common Stock certificate) is registered as the absolute
owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing on
the Rights Certificates or the associated Common Stock
certificate made by anyone other than the Company or the
Rights Agent) for all purposes whatsoever, and neither
the Company nor the Rights Agent, subject to the last
sentence of Section 7(e) hereof, shall be required to be
affected by any notice to the contrary; and
(d) notwithstanding anything in this
Agreement to the contrary, neither the Company nor the
Rights Agent shall have any liability to any holder of a
Right or other Person as a result of its inability to
perform any of its obligations under this Agreement by
reason of any preliminary or permanent injunction or
other order, decree or ruling issued by a court of
competent jurisdiction or by a governmental, regulatory
or administrative agency or commission, or any statute,
rule, regulation or executive order promulgated or
enacted by any governmental authority, prohibiting or
otherwise restraining performance of such obligation;
provided, however, the Company must use its best efforts
to have any such order, decree or ruling lifted or
otherwise overturned as soon as possible.
Section 17. Rights Certificate Holder Not
Deemed a Stockholder. No holder, as such, of any Rights
Certificate shall be entitled to vote, receive dividends
or be deemed for any purpose the holder of the number of
one one-hundredths of a share of Preferred Stock or any
other securities of the Company which may at any time be
issuable on the exercise of the Rights represented
thereby, nor shall anything contained herein or in any
Rights Certificate be construed to confer upon the holder
of any Rights Certificate, as such, any of the rights of
a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive
notice of meetings or other actions affecting
stockholders (except as provided in Section 24 hereof),
or to receive dividends or subscription rights, or
otherwise, until the Right or Rights evidenced by such
Rights Certificate shall have been exercised in
accordance with the provisions hereof.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the
Rights Agent reasonable compensation for all services
rendered by it hereunder and, from time to time, on
demand of the Rights Agent, its reasonable expenses and
counsel fees and disbursements and other disbursements
incurred in the administration and execution of this
Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the
Rights Agent for, and to hold it harmless against, any
loss, liability, or expense, incurred without negligence,
bad faith or willful misconduct on the part of the Rights
Agent, for anything done or omitted by the Rights Agent
in connection with the acceptance and administration of
this Agreement, including the costs and expenses of
defending against any claim of liability in the premises.
(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 Rights Certificate or certificate for Common
Stock or for other securities of the Company, instrument
of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction,
consent, certificate, statement, or other paper or
document believed by it to be genuine and to be signed,
executed and, where necessary, verified or acknowledged,
by the proper Person or Persons.
Section 19. 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 shall be a
party, or any corporation succeeding to the corporate
trust or stock transfer business of the Rights Agent or
any successor Rights Agent, shall be the successor to the
Rights Agent under this Agreement without the execution
or filing of any paper or any further act on the part of
any of the parties hereto; provided, however, that such
corporation would be eligible for appointment as a
successor Rights Agent under the provisions of Section 21
hereof. In case at the time such successor Rights Agent
shall succeed to the agency created by this Agreement,
any of the Rights Certificates shall have been
countersigned but not delivered, any such successor
Rights Agent may adopt the countersignature of a
predecessor Rights Agent and deliver such Rights
Certificates so countersigned; and in case at that time
any of the Rights Certificates shall not have been
countersigned, any successor Rights Agent may countersign
such Rights Certificates either in the name of the
predecessor or in the name of the successor Rights Agent;
and in all such cases such Rights Certificates shall have
the full force provided in the Rights Certificates and in
this Agreement.
(b) In case at any time the name of the
Rights Agent shall be changed and at such time any of the
Rights Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Rights
Certificates so countersigned; and in case at that time
any of the Rights Certificates shall not have been
countersigned, the Rights Agent may countersign such
Rights Certificates either in its prior name or in its
changed name; and in all such cases such Rights
Certificates shall have the full force provided in the
Rights Certificates and in this Agreement.
Section 20. 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 shall be full and
complete authorization and protection to the Rights Agent
as to any action taken or omitted by it in good faith and
in accordance with such opinion.
(b) Whenever in the performance of its
duties under this Agreement the Rights Agent shall deem
it necessary or desirable that any fact or matter
(including, without limitation, the identity of any
Acquiring Person and the determination of "current market
price") be proved or established by the Company prior to
taking or suffering any action hereunder, such fact or
matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be
conclusively proved and established by a certificate
signed by the Chairman of the Board, the President, any
Vice President, the Treasurer, any Assistant Treasurer,
the Secretary or any Assistant Secretary of the Company
and delivered to the Rights Agent; and such certificate
shall be full authorization to the Rights Agent for any
action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such
certificate.
(c) The Rights Agent shall be liable
hereunder only for its own negligence, bad faith or
willful misconduct.
(d) The Rights Agent shall not be liable
for or by reason of any of the statements of fact or
recitals contained in this Agreement or in the Rights
Certificates or be required to verify the same (except as
to its countersignature on such Rights Certificates), but
all such statements and recitals are and shall be deemed
to have been made by the Company only.
(e) The Rights Agent shall not be under
any responsibility in respect of the validity of this
Agreement or the execution and delivery hereof (except
the due execution hereof by the Rights Agent) or in
respect of the validity or execution of any Rights
Certificate (except its countersignature thereof); nor
shall it be responsible for any breach by the Company of
any covenant or condition contained in this Agreement or
in any Rights Certificate; nor shall it be responsible
for any adjustment required under the provisions of
Section 11 or Section 13 hereof or responsible for the
manner, method or amount of any such adjustment or the
ascertaining of the existence of facts that would require
any such adjustment (except with respect to the exercise
of Rights evidenced by Rights Certificates after actual
notice of any such adjustment); nor shall it by any act
hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any
shares of Common Stock or Preferred Stock to be issued
pursuant to this Agreement or any Rights Certificate or
as to whether any shares of Common Stock or Preferred
Stock will, when so issued, be validly authorized and
issued, fully paid and nonassessable.
(f) The Company agrees that it will
perform, execute, acknowledge and deliver or cause to be
performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may
reasonably be required by the Rights Agent for the
carrying out or performing by the Rights Agent of the
provisions of this Agreement.
(g) The Rights Agent is hereby authorized
and directed to accept instructions with respect to the
performance of its duties hereunder from the Chairman of
the Board, the Vice Chairman, the President, any Vice
President, the Secretary, any Assistant Secretary, the
Treasurer or any Assistant Treasurer of the Company, and
to apply to such officers for advice or instructions in
connection with its duties, and it shall not be liable
for any action taken or suffered to be taken by it in
good faith in accordance with instructions of any such
officer.
(h) The Rights Agent and any stockholder,
director, officer or employee of the Rights Agent may
buy, sell or deal in any of the Rights or other
securities of the Company or become pecuniarily
interested in any transaction in which the Company may be
interested, or contract with or lend money to the Company
or otherwise act as fully and freely as though it were
not Rights Agent under this Agreement. Nothing herein
shall preclude the Rights Agent from acting in any other
capacity for the Company or for any other legal entity.
(i) The Rights Agent may execute and
exercise any of the rights or powers hereby vested in it
or perform any duty hereunder either itself or by or
through its attorneys or agents, and the Rights Agent
shall not be answerable or accountable for any act,
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,
however, reasonable care was exercised in the selection
and continued employment thereof.
(j) No provision of this Agreement shall
require the Rights Agent to expend or risk its own funds
or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the
exercise of its rights if there shall be reasonable
grounds for believing that repayment of such funds or
adequate indemnification against such risk or liability
is not reasonably assured to it.
(k) If, with respect to any Right
Certificate surrendered to the Rights Agent for exercise
or transfer, the certificate attached to the form of
assignment or form of election to purchase, as the case
may be, has either not been completed or indicates an
affirmative response to clause 1 and/or 2 thereof, the
Rights Agent shall not take any further action with
respect to such requested exercise of transfer without
first consulting with the Company.
Section 21. Change of Rights Agent. The
Rights Agent or any successor Rights Agent may resign and
be discharged from its duties under this Agreement upon
thirty (30) days' notice in writing mailed to the
Company, and to each transfer agent of the Common Stock
and Preferred Stock, by registered or certified mail, and
to the holders of the Rights Certificates by first-class
mail. The Company may remove the Rights Agent or any
successor Rights Agent upon thirty (30) days' notice in
writing, mailed to the Rights Agent or successor Rights
Agent, as the case may be, and to each transfer agent of
the Common Stock and Preferred Stock, by registered or
certified mail, and to the holders of the Rights
Certificates by first-class mail. If the Rights Agent
shall resign or be removed or shall otherwise become
incapable of acting, the Company shall appoint a
successor to the Rights Agent. If the Company shall fail
to make such appointment within a period of thirty (30)
days after giving notice of such removal or after it has
been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent
or by the holder of a Rights Certificate (who shall, with
such notice, submit his Rights Certificate for inspection
by the Company), then any registered holder of any Rights
Certificate may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent.
Any successor Rights Agent, whether appointed by the
Company or by such a court, shall be (A) a corporation
organized and doing business under the laws of the United
States or of the State of California or New York (or of
any other state of the United States so long as such
corporation is authorized to do business as a banking
institution in the State of California or New York), in
good standing, having a principal office in the State of
California or New York, which is authorized under such
laws to exercise corporate trust or stock transfer powers
and is subject to supervision or examination by federal
or state authority and which has at the time of its
appointment as Rights Agent a combined capital and
surplus of at least $100,000,000 or (B) an affiliate of a
corporation described in clause (A) immediately above,
which affiliate has a combined capital and surplus of at
least $10,000,000. After appointment, the successor
Rights Agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been
originally named as Rights Agent without further act or
deed; but the predecessor Rights Agent shall deliver and
transfer to the successor Rights Agent any property at
the time held by it hereunder, and execute and deliver
any further assurance, conveyance, act or deed necessary
for the purpose. Not later than the effective date of
any such appointment, the Company shall file notice
thereof in writing with the predecessor Rights Agent and
each transfer agent of the Common Stock and the Preferred
Stock, and mail a notice thereof in writing to the
registered holders of the Rights Certificates. Failure
to give any notice provided for in this Section 21,
however, or any defect therein, shall not affect the
legality or validity of the resignation or removal of the
Rights Agent or the appointment of the successor Rights
Agent, as the case may be.
Section 22. 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 the
Board to reflect any adjustment or change in the Purchase
Price and the number or kind or class of shares or other
securities or property purchasable under the Rights
Certificates made in accordance with the provisions of
this Agreement. In addition, in connection with the
issuance or sale of shares of Common Stock following the
Distribution Date and prior to the redemption or
expiration of the Rights, the Company (a) shall, with
respect to shares of Common Stock so issued or sold
pursuant to the exercise of stock options or under any
employee plan or arrangement, granted or awarded as of
the Distribution Date, or upon the exercise, conversion
or exchange of securities hereinafter issued by the
Company, and (b) may, in any other case, if deemed
necessary or appropriate by the Board, issue Rights
Certificates representing the appropriate number of
Rights in connection with such issuance or sale;
provided, however, that (i) no such Rights Certificate
shall be issued if, and to the extent that, the Company
shall be advised by counsel that such issuance would
create a significant risk of material adverse tax
consequences to the Company or the Person to whom such
Rights Certificate would be issued, and (ii) no such
Rights Certificate shall be issued if, and to the extent
that, appropriate adjustment shall otherwise have been
made in lieu of the issuance thereof.
Section 23. Redemption and Termination.
(a) The Board may, at its option, at any
time prior to the earlier of (i) the close of business on
the tenth business day following the Stock Acquisition
Date (or, if the Stock Acquisition Date shall have
occurred prior to the Record Date, the close of business
on the tenth business day following the Record Date), or
(ii) the Final Expiration Date, redeem all but not less
than all the then outstanding Rights at a redemption
price of $.01 per Right, as such amount may be
appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date
hereof (such redemption price being hereinafter referred
to as the "Redemption Price"); provided, however, that if
the Board authorizes redemption of the Rights in either
of the circumstances set forth in clauses (i) and (ii)
below, then there must be Continuing Directors then in
office and such authorization shall require the
concurrence of a majority of such Continuing Directors:
(i) such authorization occurs on or after the time a
Person becomes an Acquiring Person or (ii) such
authorization occurs on or after the date of a change
(resulting from a proxy or consent solicitation) in a
majority of the directors in office at the commencement
of such solicitation if any Person who is a participant
in such solicitation has stated (or, if upon the
commencement of such solicitation, a majority of the
Board has determined in good faith) that such Person (or
any of its Affiliates or Associates) intends to take, or
may consider taking, any action which would result in
such Person becoming an Acquiring Person or which would
cause the occurrence of a Triggering Event unless,
concurrent with such solicitation, such Person (or one or
more of its Affiliates or Associates) is making a cash
tender offer pursuant to a Schedule 14D-1 (or any
successor form) filed with the Securities and Exchange
Commission for all outstanding shares of Common Stock
not beneficially owned by such Person (or by its
Affiliates or Associates); provided, further, however,
that if, following the occurrence of a Stock Acquisition
Date and following the expiration of the right of
redemption hereunder but prior to any Triggering Event,
(i) a Person who is an Acquiring Person shall have
transferred or otherwise disposed of a number of shares
of Common Stock in one transaction or series of
transactions, not directly or indirectly involving the
Company or any of its Subsidiaries, which did not result
in the occurrence of a Triggering Event such that such
Person is thereafter a Beneficial Owner of less than 15%
of the outstanding shares of Common Stock, (ii) there are
no other Persons, immediately following the occurrence of
the event described in clause (i), who are Acquiring
Persons, and (iii) the Board (with the concurrence of a
majority of the Continuing Directors) shall so approve,
then the right of redemption shall be reinstated and
thereafter be subject to the provisions of this Section
23. Notwithstanding anything contained in this Agreement
to the contrary, the Rights shall not be exercisable
after the first occurrence of a Section 11(a)(ii) Event
until such time as the Company's right of redemption
hereunder has expired. The Company may, at its option,
pay the Redemption Price in cash, shares of Common Stock
(based on the "current market price," as defined in
Section 11(d)(i) hereof, of the Common Stock at the time
of redemption) or any other form of consideration deemed
appropriate by the Board.
(b) Immediately upon the action of the
Board ordering the redemption of the Rights, evidence of
which shall have been filed with the Rights Agent and
without any further action and without any notice, the
right to exercise the Rights will terminate and the only
right thereafter of the holders of Rights shall be to
receive the Redemption Price for each Right so held.
Promptly after the action of the Board ordering the
redemption of the Rights, the Company shall give notice
of such redemption to the Rights Agent and the holders of
the then outstanding Rights by mailing such notice to all
such holders at each holder's last address as it appears
upon the registry books of the Rights Agent or, prior to
the Distribution Date, on the registry books of the
Transfer Agent for the Common Stock. Any notice which is
mailed in the manner herein provided shall be deemed
given, whether or not the holder receives the notice.
Each such notice of redemption will state the method by
which the payment of the Redemption Price will be made.
(c) The Board may, as its option, at any
time on or after the first occurrence of a Section
11(a)(ii) Event (provided, however, that any such action
following the first occurrence of either of the events
set forth in clauses (i) and (ii) of the first proviso to
Section 23(a) hereof shall be effective only if there are
Continuing Directors and shall require the concurrence of
a majority of the Continuing Directors), exchange all or
part of the then outstanding and exercisable Rights
(which shall not include Rights that have become void
pursuant to the provisions of Section 7(e) hereof) for
shares of Common Stock at an exchange ratio of one share
of Common Stock per Right, appropriately adjusted to
reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such
exchange ratio being hereinafter referred to as the
"Exchange Ratio").
(d) Immediately upon the action of the
Board ordering the exchange of any Rights pursuant to
subsection (c) of this Section 23 and without any further
action and without any notice, the right to exercise such
Rights shall terminate and the only right thereafter of a
holder of such Rights shall be to receive that number of
shares of Common Stock equal to the number of such Rights
held by such holder multiplied by the Exchange Ratio.
The Company shall promptly give public notice of any such
exchange; provided, however, that the failure to give, or
any defect in, such notice shall not affect the validity
of such exchange. The Company promptly shall mail a
notice of any such exchange to all of the holders of such
Rights at their last addresses as they appear upon the
registry books of the Rights Agent. Any notice which is
mailed in the manner herein provided shall be deemed
given, whether or not the holder receives the notice.
Each such notice of exchange will state the method by
which the exchange of the shares of Common Stock for
Rights will be effected and, in the event of any partial
exchange, the number of Rights which will be exchanged.
Any partial exchange shall be effected pro rata based on
the number of Rights (other than Rights which have become
void pursuant to the provisions of Section 7(e) hereof)
held by each holder of Rights.
(e) In the event that the number of
shares of Common Stock which are authorized by the
Company's Certificate of Incorporation but not
outstanding or reserved for issuance for purposes other
than upon exercise of the Rights are not sufficient to
permit any exchange of Rights as contemplated in
accordance with this Section 23, the Company shall take
all such action as may be necessary to authorize
additional shares of Common Stock for issuance upon
exchange of the Rights.
(f) The Company shall not be required to
issue fractions of shares of Common Stock or to
distribute certificates which evidence fractional shares
of Common Stock. In lieu of such fractional shares of
Common Stock, the Company shall pay to the registered
holders of Rights with regard to which such fractional
shares of Common Stock would otherwise be issuable an
amount in cash equal to the same fraction of the value of
a whole share of Common Stock. For purposes of this
subsection (f), the value of a whole share of Common
Stock shall be the closing price (as determined pursuant
to the provisions of Section 11(d)(i) hereof) for the
Trading Day immediately prior to the date of exchange
pursuant to this Section 23.
(g) Notwithstanding anything to the
contrary contained in this Agreement, if the Company
shall redeem the Existing Rights in accordance with the
terms of the Existing Agreement, then if the Board so
determines (which determination shall, if made following
the first occurrence of either of the events set forth in
clauses (i) and (ii) of the first proviso to Section
23(c) hereof, be effective only if there shall be
Continuing Directors and shall require the concurrence of
a majority of such Continuing Directors) (i) any cash or
other consideration paid or exchanged by the Company upon
the redemption of the Existing Rights shall also be
deemed to have been paid or exchanged for the Rights
issued under this Agreement pursuant to the terms of this
Section 23, (ii) such Rights shall be deemed to have been
redeemed pursuant to the terms of this Section 23 and
(iii) the Company shall have no further obligations under
this Agreement.
Section 24. Notice of Certain Events.
(a) In case the Company shall propose, at
any time after the Distribution Date, (i) to pay any
dividend payable in stock of any class to the holders of
Preferred Stock or to make any other distribution to the
holders of Preferred Stock (other than a regular
quarterly cash dividend out of earnings or retained
earnings of the Company), or (ii) to offer to the holders
of Preferred Stock rights or warrants to subscribe for or
to purchase any additional shares of Preferred Stock or
shares of stock of any class or any other securities,
rights or options, or (iii) to effect any
reclassification of its Preferred Stock (other than a
reclassification involving only the subdivision of
outstanding shares of Preferred Stock), or (iv) to effect
any consolidation or merger into or with any other Person
(other than a Subsidiary of the Company in a transaction
which complies with Section 11(o) hereof), or to effect
any sale or other transfer (or to permit one or more of
its Subsidiaries to effect any sale or other transfer),
in one transaction or a series of related transactions,
of more than 50% of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to any
other Person or Persons (other than the Company and/or
any of its Subsidiaries in one or more transactions each
of which complies with Section 11(o) hereof), or (v) to
effect the liquidation, dissolution or winding up of the
Company, then, in each such case, the Company shall give
to each holder of a Rights Certificate, to the extent
feasible and in accordance with Section 25 hereof, a
notice of such proposed action, which shall specify the
record date for the purposes of such stock dividend,
distribution of rights or warrants, or the date on which
such reclassification, consolidation, merger, sale,
transfer, liquidation, dissolution, or winding up is to
take place and the date of participation therein by the
holders of the shares of Preferred Stock, if any such
date is to be fixed, and such notice shall be so given in
the case of any action covered by clause (i) or (ii)
above at least twenty (20) days prior to the record date
for determining holders of the shares of Preferred Stock
for purposes of such action, and in the case of any such
other action, at least twenty (20) days prior to the date
of the taking of such proposed action or the date of
participation therein by the holders of the shares of
Preferred Stock whichever shall be the earlier.
(b) In case the event set forth in
Section 11(a)(ii) hereof shall occur, then (i) the
Company shall as soon as practicable thereafter give to
each holder of a Rights Certificate, to the extent
feasible and in accordance with Section 25 hereof, a
notice of the occurrence of such event, which shall
specify the event and the consequences of the event to
holders of Rights under Section 11(a)(ii) hereof, and
(ii) all references in the preceding paragraph to
Preferred Stock shall be deemed thereafter to refer to
Common Stock and/or, if appropriate, other securities.
Section 25. Notices. Notices or demands
authorized by this Agreement to be given or made by the
Rights Agent or by the holder of any Rights Certificate
to or on the Company shall be sufficiently given or made
if sent by first-class mail, postage prepaid, addressed
(until another address is filed in writing with the
Rights Agent) as follows:
Great Western Financial Corporation
9200 Oakdale Avenue
Chatsworth, CA 91311-6519
Attention: Corporate Secretary
Subject to the provisions of Section 21, any notice or
demand authorized by this Agreement to be given or made
by the Company or by the holder of any Rights Certificate
to or on the Rights Agent shall be sufficiently given or
made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with
the Company) as follows:
First Chicago Trust Company
of New York
525 Washington Boulevard
Suite 4660
3rd Floor
Jersey City, New Jersey 07310
Attention: Tenders and Exchanges Administration
Notices or demands authorized by this Agreement to be
given or made by the Company or the Rights Agent to the
holder of any Rights Certificate (or, if prior to the
Distribution Date, to the holder of certificates
representing shares of Common Stock) shall be
sufficiently given or made if sent by first-class mail,
postage prepaid, addressed to such holder at the address
of such holder as shown on the registry books of the
Company.
Section 26. Supplements and Amendments. Prior
to the Distribution Date the Company and the Rights Agent
shall, if the Company so directs, supplement or amend any
provision of this Agreement without the approval of any
holders of certificates representing shares of Common
Stock. From and after the Distribution Date, the Company
and the Rights Agent shall, if the Company so directs,
supplement or amend this Agreement without the approval
of any holders of Rights Certificates in order (i) to
cure any ambiguity, (ii) to correct or supplement any
provision contained herein which may be defective or
inconsistent with any other provisions herein, (iii) to
shorten or lengthen any time period hereunder or (iv) to
change or supplement the provisions hereunder in any
manner which the Company may deem necessary or desirable
and which shall not adversely affect the interests of the
holders of Rights Certificates (other than an Acquiring
Person or an Affiliate or an Associate of an Acquiring
Person); provided, this Agreement may not be supplemented
or amended to lengthen, pursuant to clause (iii) of this
sentence, (A) a time period relating to when the Rights
may be redeemed at such time as the Rights are not then
redeemable, or (B) any other time period unless such
lengthening is for the purpose of protecting, enhancing
or clarifying the rights of, and/or the benefits to, the
holders of Rights. Upon the delivery of a certificate
from an appropriate officer of the Company which states
that the proposed supplement or amendment is in
compliance with the terms of this Section 26, the Rights
Agent shall execute such supplement or amendment.
Notwithstanding anything to the contrary contained
herein, following the first occurrence of either of the
events set forth in clauses (i) and (ii) of the first
proviso to Section 23(a) hereof, any amendment to this
Agreement pursuant to this Section 26 shall be effective
only if there are Continuing Directors and shall require
the concurrence of a majority of such Continuing
Directors. Prior to the Distribution Date, the interests
of the holders of Rights shall be deemed coincident with
the interests of the holders of Common Stock.
Section 27. Successors. All the covenants and
provisions of this Agreement by or for the benefit of the
Company or the Rights Agent shall bind and inure to the
benefit of their respective successors and assigns
hereunder.
Section 28. Determinations and Actions by the
Board of Directors, etc. For all purposes of this
Agreement, any calculation of the number of shares of
Common Stock outstanding at any particular time,
including for purposes of determining the particular
percentage of such outstanding shares of Common Stock of
which any Person is the Beneficial Owner, shall be made
in accordance with the last sentence of Rule
13d-3(d)(1)(i) of the General Rules and Regulations under
the Exchange Act. The Board (with, where specifically
provided for herein, the concurrence of the Continuing
Directors) shall have the exclusive power and authority
to administer this Agreement and to exercise all rights
and powers specifically granted to the Board (with, where
specifically provided for herein, the concurrence of the
Continuing Directors) or to the Company, or as may be
necessary or advisable in the administration of this
Agreement, including, without limitation, the right and
power to (i) interpret the provisions of this Agreement,
and (ii) make all determinations deemed necessary or
advisable for the administration of this Agreement
(including a determination to redeem or not redeem the
Rights or to amend the Agreement). All such actions,
calculations, interpretations and determinations
(including, for purposes of clause (y) below, all
omissions with respect to the foregoing) which are done
or made by the Board (with, where specifically provided
for herein, the concurrence of the Continuing Directors)
in good faith, shall (x) be final, conclusive and binding
on the Company, the Rights Agent, the holders of the
Rights and all other parties, and (y) not subject the
Board or the Continuing Directors to any liability to the
holders of the Rights.
Section 29. 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 registered holders of the Rights Certificates (and,
prior to the Distribution Date, registered holders of the
Common Stock) any legal or equitable right, remedy or
claim under this Agreement; but this Agreement shall be
for the sole and exclusive benefit of the Company, the
Rights Agent and the registered holders of the Rights
Certificates (and, prior to the Distribution Date,
registered holders of the Common Stock).
Section 30. Severability. If any term,
provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force
and effect and shall in no way be affected, impaired or
invalidated; provided, however, that notwithstanding
anything in this Agreement to the contrary, if any such
term, provision, covenant or restriction is held by such
court or authority to be invalid, void or unenforceable
and the Board determines in its good faith judgment that
severing the invalid language from this Agreement would
adversely affect the purpose or effect of this Agreement,
the right of redemption set forth in Section 23 hereof
shall be reinstated and shall not expire until the close
of business on the tenth day following the date of such
determination by the Board. Without limiting the
foregoing, if any provision requiring a determination to
be made by (or with the concurrence of) less than the
entire Board is held by any court of competent
jurisdiction or other authority to be invalid, void or
unenforceable, such determination shall then be made by
the Board in accordance with applicable law and the
Company's Certificate of Incorporation and By-Laws.
Section 31. Governing Law. This Agreement,
each Right and each Rights Certificate issued hereunder
shall be deemed to be a contract made under the laws of
the State of Delaware and for all purposes shall be
governed by and construed in accordance with the laws of
such State applicable to contracts made and to be
performed entirely within such State.
Section 32. Counterparts. This Agreement may
be executed in any number of counterparts and each of
such counterparts shall for all purposes be deemed to be
an original, and all such counterparts shall together
constitute but one and the same instrument.
Section 33. Descriptive Headings. Descriptive
headings of the several Sections of this Agreement are
inserted for convenience only and shall not control or
affect the meaning or construction of any of the
provisions hereof.
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed and their
respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
GREAT WESTERN FINANCIAL
Attest: CORPORATION
By /s/ J. Lance Erikson By /s/ John F. Maher
J. Lance Erikson John F. Maher
Executive Vice President, President
Secretary and General
Counsel
FIRST CHICAGO TRUST
Attest: COMPANY OF NEW YORK
By /s/ Joanne Gorostiola By /s/ Ralph Persico
Joanne Gorostiola Ralph Persico
Assistant Vice President Customer Service Officer
Exhibit A
CERTIFICATE OF DESIGNATION, PREFERENCES AND
RIGHTS OF SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
GREAT WESTERN FINANCIAL CORPORATION
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
We, James F. Montgomery, Chairman and Chief
Executive, and J. Lance Erikson, Senior Vice President
and Corporate Secretary, of Great Western Financial
Corporation, a corporation organized and existing under
the General Corporation Law of the State of Delaware in
accordance with the provisions of Section 103 thereof, DO
HEREBY CERTIFY:
That pursuant to the authority conferred upon
the Board of Directors by the Certificate of
Incorporation, as amended, of said Corporation, said
Board of Directors on June 24, 1986, adopted the
following resolution creating a series of 500,000 shares
of preferred stock designated as Series A Junior
Participating Preferred Stock and on June 27, 1995
approved an amendment to such resolution increasing the
number of shares of such series of preferred stock to
2,000,000:
RESOLVED, that pursuant to the authority vested
in the Board of Directors of this Corporation in
accordance with the provisions of its Certificate of
Incorporation, as amended (the "Certificate of
Incorporation"), a series of Preferred Stock of the
Corporation be and it hereby is created, and that the
designation and amount thereof and the voting powers,
preferences and relative, participating, optional and
other special rights of the shares of such series, and
the qualifications, limitations or restrictions thereof
are as follows:
Section 1. Designation and Amount. The shares
of such series shall be designated as "Series A Junior
Participating Preferred Stock" and the number of shares
constituting such series shall be 2,000,000.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of
the holders of any shares of any series of Preferred
Stock ranking prior and superior to the shares of Series
A Junior Participating Preferred Stock with respect to
dividends, the holders of shares of Series A Junior
Participating Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose,
quarterly dividends payable in cash on the last day of
February, May, August and November in each year (each
such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance
of a share or a fraction of a share of Series A Junior
Participating Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (a)
$12.00 or (b) subject to the provisions for adjustment
hereinafter set forth, 100 times the aggregate per share
amount of all cash dividends, and 100 times the aggregate
per share amount (payable in kind) of all non-cash
dividends or other distributions other than a dividend
payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification
or otherwise), declared on the Common Stock, par value
$1.00 per share, of the Corporation (the "Common Stock")
since the immediately preceding Quarterly Dividend
Payment Date, or, with respect to the first Quarter
Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Junior
Participating Preferred Stock. In the event the
Corporation shall at any time after June 24, 1986 (the
"Rights Declaration Date") (i) declare any dividend on
Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine
the outstanding Common Stock into a smaller number of
shares, then in each such case the amount to which
holders of shares of Series A Junior Participating
Preferred Stock were entitled immediately prior to such
event under clause (b) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such
event.
(B) The Corporation shall declare a dividend or
distribution on the Series A Junior Participating
Preferred Stock as provided in paragraph (A) above
immediately after it declares a dividend or distribution
on the Common Stock (other than a dividend payable in
shares of Common Stock); provided that, in the event no
dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $12.00 per share on
the Series A Junior Participating Preferred Stock shall
nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be
cumulative on outstanding shares of Series A Junior
Participating Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such
shares of Series A Junior Participating Preferred Stock,
unless the date of issue of such shares is prior to the
record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin
to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment
Date or is a date after the record date for the
determination of holders of shares of Series A Junior
Participating Preferred Stock entitled to receive a
quarterly dividend and before such Quarterly Dividend
Payment Date, in either of which events such dividends
shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the
shares of Series A Junior Participating Preferred Stock
in an amount less than the total amount of such dividends
at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all
such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of
holders of shares of Series A Junior Participating
Preferred Stock entitled to receive payment of a dividend
or distribution declared thereon, which record date shall
be no more than 30 days prior to the date fixed for the
payment thereof.
Section 3. Voting Rights. The holders of
shares of Series A Junior Participating Preferred Stock
shall have the following voting rights:
(A) Subject to the provision for adjustment
hereinafter set forth, each share of Series A Junior
Participating Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote
of the stockholders of the Corporation. In the event the
Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares,
then in each such case the number of votes per share to
which holders of shares of Series A Junior Participating
Preferred Stock were entitled immediately prior to such
event shall be adjusted by multiplying such number by a
fraction the numerator of which is the number of shares
of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to
such event.
(B) Except as otherwise provided herein or by
law, the holders of shares of Series A Junior
Participating Preferred Stock and the holders of shares
of Common Stock shall vote together as one class on all
matters submitted to a vote of stockholders of the
Corporation.
(C)(i) If at any time dividends on any Series A
Junior Participating Preferred Stock shall be in arrears
in an amount equal to six (6) quarterly dividends
thereon, the occurrence of such contingency shall mark
the beginning of a period (herein called a "default
period") which shall extend until such time when all
accrued and unpaid dividends for all previous quarterly
dividend periods and for the current quarterly dividend
period on all shares of Series A Junior Participating
Preferred Stock then outstanding shall have been declared
and paid or set apart for payment. During each default
period, all holders of Preferred Stock (including holders
of the Series A Junior Participating Preferred Stock)
with dividends in arrears in an amount equal to six (6)
quarterly dividends thereon, voting as a class,
irrespective of series, shall have the right to elect
three (3) Directors.
(ii) During any default period, such voting
right of the holders of Series A Junior Participating
Preferred Stock may be exercised initially at the next
annual meeting of stockholders, and at any annual meeting
of stockholders thereafter, provided that neither such
voting right nor the right of the holders of any other
series of Preferred Stock, if any, to elect Directors as
provided in subparagraph (C)(i) above shall be exercised
unless the holders of one-third in number of shares of
Preferred Stock outstanding and entitled to vote with
respect to such election shall be present in person or by
proxy. The absence of a quorum of the holders of Common
Stock shall not affect the exercise by the holders of
Preferred Stock of such voting right. During any default
period, the number of Directors shall not be increased or
decreased except by vote of the holders of Preferred
Stock then entitled to elect Directors pursuant to
subparagraph (C)(i) voting as a class, irrespective of
series, or pursuant to the rights of any equity
securities ranking senior to or pari passu with the
Series A Junior Participating Preferred Stock.
(iii) In any default period, the holders of
Common Stock, and other classes of stock of the
Corporation if applicable, shall continue to be entitled
to elect the whole number of Directors until the holders
of Preferred Stock shall have exercised their right to
elect three (3) Directors voting as a class, after the
exercise of which right (x) the Directors so elected by
the holders of Preferred Stock shall continue in office
until their successor shall have been elected by such
holders or until the expiration of the default period and
(y) any vacancy in the Board of Directors may be filled
in the manner set forth in Article Tenth of the
Certificate of Incorporation.
(iv) Immediately upon the expiration of a
default period, (x) the right of the holders of Preferred
Stock as a class to elect Directors shall cease, (y) the
term of any Directors elected by the holders of Preferred
Stock as a class shall terminate, and (z) the number of
Directors shall be such number as may be provided for in
the certificate of incorporation or by-laws. Any
vacancies in the Board of Directors affected by the
provisions of clauses (y) and (z) in the preceding
sentence may be filled in the manner set forth in Article
Tenth of the Certificate of Incorporation.
(D) Except as set forth herein, holders of
Series A Junior Participating Preferred Stock shall have
no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for
taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other
dividends or distributions payable on the Series A Junior
Participating Preferred Stock as provided in Section 2
are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not
declared, on shares of Series A Junior Participating
Preferred Stock outstanding shall have been paid in full,
the Corporation shall not
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise
acquire for consideration any shares of stock ranking
junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Junior
Participating Preferred Stock;
(ii) declare or pay dividends on or make any
other distributions on any shares of stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Junior
Participating Preferred Stock, except dividends paid
ratably on the Series A Junior Participating Preferred
Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts
to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire
for consideration shares of any stock ranking on a parity
(either as to dividends or upon liquidation, dissolution
or winding up) with the Series A Junior Participating
Preferred Stock, provided that the Corporation may at any
time redeem, purchase or otherwise acquire shares of any
such parity stock in exchange for shares of any stock of
the Corporation ranking junior (either as to dividends or
upon dissolution, liquidation or winding up) to the
Series A Junior Participating Preferred Stock;
(iv) except as otherwise provided in Section
8, purchase or otherwise acquire for consideration any
shares of Series A Junior Participating Preferred Stock,
or any shares of stock ranking on a parity with the
Series A Junior Participating Preferred Stock, except in
accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to
all holders of such shares upon such terms as the Board
of Directors, after consideration of the respective
annual dividend rates and other relative rights and
preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable
treatment among the respective series or classes.
(B) The Corporation shall not permit any
subsidiary of the Corporation to purchase or otherwise
acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph
(A) of this Section 4, purchase or otherwise acquire such
shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of
Series A Junior Participating Preferred Stock purchased
or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after
the acquisition thereof. All such shares shall upon
their cancellation become authorized but unissued shares
of Preferred Stock and may be reissued as part of a new
series of Preferred Stock to be created by resolution or
resolutions of the Board of Directors, subject to the
conditions and restrictions on issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding
Up. (A) Upon any liquidation (voluntary or otherwise),
dissolution or winding up of the Corporation, no
distribution shall be made to the holders of shares of
stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A
Junior Participating Preferred Stock unless, prior
thereto, the holders of shares of Series A Junior
Participating Preferred Stock shall have received $500
per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not
declared, to the date of such payment (the "Series A
Liquidation Preference"). Following the payment of the
full amount of the Series A Liquidation Preference, no
additional distributions shall be made to the holders of
shares of Series A Junior Participating Preferred Stock
unless, prior thereto, the holders of shares of Common
Stock shall have received an amount per share (the
"Common Adjustment") equal to the quotient obtained by
dividing (i) the Series A Liquidation Preference by (ii)
100 (as appropriately adjusted as set forth in
subparagraph C below to reflect such events as stock
splits, stock dividends and recapitalizations with
respect to the Common Stock) (such number in clause (ii)
immediately above, the "Adjustment Number"). Following
the payment of the full amount of the Series A
Liquidation Preference and the Common Adjustment in
respect of all outstanding shares of Series A Junior
Participating Preferred Stock and Common Stock,
respectively, holders of Series A Junior Participating
Preferred Stock and holders of shares of Common Stock
shall receive their ratable and proportionate share of
the remaining assets to be distributed in the ratio of
the Adjustment Number to one (1) with respect to such
Preferred Stock and Common Stock, on a per share basis,
respectively.
(B) In the event, however, that there are not
sufficient assets available to permit payment in full of
the Series A Liquidation Preference and the liquidation
preferences of all other series of preferred stock, if
any, which rank on a parity with the Series A Junior
Participating Preferred Stock, then such remaining assets
shall be distributed ratably to the holders of such
parity shares in proportion to their respective
liquidation preferences. In the event, however, that
there are not sufficient assets available to permit
payment in full of the Common Adjustment, then such
remaining assets shall be distributed ratably to the
holders of Common Stock.
(C) In the event the Corporation shall at any
time after the Rights Declaration Date (i) declare any
dividend on Common Stock payable in shares of Common
Stock, (ii) subdivide the outstanding Common Stock, or
(iii) combine the outstanding Common Stock into a smaller
number of shares, then in each such case the Adjustment
Number in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment Number by a
fraction the numerator of which is the number of shares
of Common Stock outstanding immediately after such event,
and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to
such event.
Section 7. Consolidation, Merger, etc. In
case the Corporation shall enter into any consolidation,
merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into
other stock or securities, cash and/or any other
property, then in any such case the shares of Series A
Junior Participating Preferred Stock shall at the same
time be similarly exchanged or changed in an amount per
share subject to the provision for adjustment hereinafter
set forth equal to 100 times the aggregate amount of
stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for
which each share of Common Stock is changed or exchanged.
In the event the Corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on
Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine
the outstanding Common Stock into a smaller number of
shares, then in each such case the amount set forth in
the preceding sentence with respect to the exchange or
change of shares of Series A Junior Participating
Preferred Stock shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number
of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately
prior to such event.
Section 8. Redemption. The outstanding shares
of Series A Junior Participating Preferred Stock may be
redeemed at the option of the Board of Directors as a
whole, but not in part, at any time, or from time to
time, at a cash price per share equal to 105 percent of
(i) the product of the Adjustment Number times the
Average Market Value (as such term is hereinafter
defined) of the Common Stock, plus (ii) all dividends
which on the redemption date have accrued on the shares
to be redeemed and have not been paid, or declared and a
sum sufficient for the payment thereof set apart, without
interest. The "Average Market Value" is the average of
the closing sale prices of the Common Stock during the
30-day period immediately preceding the date before the
redemption date on the Composite Tape for New York Stock
Exchange Listed Stocks, or, if such stock is not quoted
on the Composite Tape, on the New York Stock Exchange,
or, if such stock is not listed on such Exchange, on the
principal United States securities exchange registered
under the Securities Exchange Act of 1934, as amended, on
which such stock is listed, or, if such stock is not
listed on any such exchange, the average of the closing
sale prices with respect to a share of Common Stock
during such 30-day period, as quoted on the National
Association of Securities Dealers, Inc. Automated
Quotations System or any system then in use, or if no
such quotations are available, the fair market value of
the Common Stock as determined by the Board of Directors
in good faith.
Section 9. Ranking. The Series A Junior
Participating Preferred Stock shall rank junior to all
other series of Preferred Stock as to the payment of
dividends and the distribution of assets, unless the
terms of any such series shall provide otherwise.
Section 10. Amendment. The Certificate of
Incorporation shall not be further amended in any manner
which would materially alter or change the powers,
preferences or special rights of the Series A Junior
Participating Stock so as to affect them adversely
without the affirmative vote of the holders of two-thirds
or more of the outstanding shares of Series A Junior
Participating Preferred Stock, voting separately as a
class.
Section 11. Fractional Shares. Series a
Junior Participating Preferred Stock may be issued in
fractions of a share which shall entitle the holder, in
proportion to such holder's fractional shares, to
exercise voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights
of holders of Series A Junior Participating Preferred
Stock.
IN WITNESS WHEREOF, we have executed and
subscribed this Certificate and do affirm the foregoing
as true under the penalties of perjury this 24th day of
June, 1986.
/s/ James F. Montgomery
James F. Montgomery
Chairman and Chief
Executive
Attest:
/s/ J. Lance Erikson
J. Lance Erikson
Senior Vice President
and Corporate Secretary
Exhibit B
[Form of Rights Certificate]
Certificate No. R- ____________ Rights
NOT EXERCISABLE AFTER JULY 14, 2006 OR EARLIER IF
REDEEMED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO
REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.01 PER
RIGHT ON THE TERMS SET FORTH ON THE RIGHTS AGREEMENT.
UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY
AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE
RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH
RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED
BY THIS RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED
BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN
AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH
TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY,
THIS RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY
MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED
IN SECTION 7(e) OF SUCH AGREEMENT] *
Rights Certificate
GREAT WESTERN FINANCIAL CORPORATION
This certifies that , or
registered assigns, is the registered owner of the number
of Rights set forth above, each of which entitles the
owner thereof, subject to the terms, provisions and
conditions of the Rights Agreement, dated as of June 27,
1995 (the "Rights Agreement"), Great Western Financial
Corporation, a Delaware corporation (the "Company"), and
First Chicago Trust Company of New York, a New York
banking corporation (the "Rights Agent"), to purchase
from the Company at any time prior to 5:00 PM (New York
City time) on July 14, 2006 at the office or offices of
the Rights Agent designated for such purpose, or its
successors as Rights Agent, one one-hundredth of a fully
________________________
* The portion of the legend in brackets shall be
inserted only if applicable and shall replace
the preceding sentence.
paid, non-assessable share of Series A Junior
Participating Preferred Stock (the "Preferred Stock") of
the Company, at a purchase price of $80 per one one-
hundredth of a share (the "Purchase Price"), upon
presentation and surrender of this Rights Certificate
with the Form of Election to Purchase and related
Certificate duly executed. The Purchase Price shall be
paid, at the election of the holder, in cash or by
certified check, bank check, money order or bank draft
payable to the order of the Company. The number of
Rights evidenced by this Rights Certificate (and the
number of shares which may be purchased upon exercise
thereof) set forth above, and the Purchase Price set
forth above, are the number and Purchase Price as of June
27, 1995, based on the Preferred Stock as constituted at
such date.
Upon the occurrence of a Section 11(a)(ii)
Event (as such term is defined in the Rights Agreement),
if the Rights evidenced by this Rights Certificate are
beneficially owned by (i) an Acquiring Person or an
Affiliate or Associate of an Acquiring Person (as such
terms are defined in the Rights Agreement), (ii) a
transferee of such Acquiring Person, Associate or
Affiliate, or (iii) under certain circumstances specified
in the Rights Agreement, a transferee of a person who,
after such transfer, became such Acquiring Person, or an
Affiliate or Associate of such Acquiring Person, such
Rights shall become null and void and no holder hereof
shall have any right with respect to such Rights from and
after the occurrence of such Section 11(a)(ii) Event.
As provided in the Rights Agreement, the
Purchase Price and the number and kind of shares of
Preferred Stock or other securities, which may be
purchased upon the exercise of the Rights evidenced by
this Rights Certificate are subject to modification and
adjustment upon the happening of certain events,
including Triggering Events.
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 Certificate, which limitations of rights include
the temporary suspension of the exercisability of such
Rights under the specific circumstances set forth in the
Rights Agreement. Copies of the Rights Agreement are on
file at the offices of the Company and are also available
upon written request to the Company.
This Rights Certificate, with or without other
Rights Certificates, upon surrender at the principal
office or offices of the Rights Agent designated for such
purpose, may be exchanged for another Rights Certificate
or Rights Certificates of like tenor and date evidencing
Rights entitling the holder to purchase a like aggregate
number of one one-hundredths of a share of Preferred
Stock as the Rights evidenced by the Rights Certificate
or Rights Certificates surrendered shall have entitled
such holder to purchase. If this Rights Certificate
shall be exercised in part, the holder shall be entitled
to receive upon surrender hereof another Rights
Certificate or Rights Certificates for the number of
whole Rights not exercised.
Subject to the provisions of the Rights
Agreement, the Rights evidenced by this Certificate may
be redeemed by the Company at its option at a redemption
price of $.01 per Right at any time prior to the earlier
of the close of business on (i) the tenth business day
following the Stock Acquisition Date (as such time period
may be extended pursuant to the Rights Agreement), and
(ii) the Final Expiration Date. After the expiration of
the redemption period, the Company's right of redemption
may be reinstated if an Acquiring Person reduces its
beneficial ownership to less than 15% of the outstanding
shares of Common Stock in a transaction or series of
transactions not involving the Company, and such
reinstatement is approved by the Company's Board of
Directors (with the concurrence of a majority of the
Continuing Directors, as such term is defined in the
Rights Agreement).
No fractional shares of Preferred Stock will be
issued upon the exercise of any Right or Rights evidenced
hereby (other than fractions which are integral multiples
of one one-hundredth of a share of Preferred Stock, which
may, at the election of the Company, be evidenced by
depositary receipts), but in lieu thereof a cash payment
will be made, as provided in the Rights Agreement.
No holder of this Rights Certificate shall be
entitled to vote or receive dividends or be deemed for
any purpose the holder of shares of Preferred Stock or of
any other securities of the Company which may at any time
be issuable on the exercise hereof, nor shall anything
contained in the Rights Agreement or herein be construed
to confer upon the holder hereof, as such, any of the
rights of a stockholder of the Company or any right to
vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, or to
give or withhold consent to any corporate action, or, to
receive notice of meetings or other actions affecting
stockholders (except as provided in the Rights
Agreement), or to receive dividends or subscription
rights, or otherwise until the Right or Rights evidenced
by this Rights Certificate shall have been exercised as
provided in the Rights Agreement.
This Rights Certificate shall not be valid or
obligatory for any purpose until it shall have been
countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper
officers of the Company and its corporate seal.
Dated as of _______ ___, 19___
ATTEST: GREAT WESTERN FINANCIAL
CORPORATION
By
Secretary Title:
Countersigned:
By
Authorized Signature
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED
hereby sells, assigns and transfers unto
(Please print name and address of transferee)
this Rights Certificate, together with all right, title
and interest therein, and does hereby irrevocably
constitute and appoint ________________________ Attorney,
to transfer the within Rights Certificate on the books of
the within-named Company, with full power of
substitution.
Dated: , 19
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by
checking the appropriate boxes that:
(1) this Rights Certificate [ ] is [ ]
is not being sold, assigned and transferred by or on
behalf of a Person who is or was an Acquiring Person or
an Affiliate or Associate of any such Acquiring Person
(as such terms are defined in the Rights Agreement);
(2) after due inquiry and to
the best knowledge of the undersigned, it [ ] did [ ]
did not acquire the Rights evidenced by this Rights
Certificate from any Person who is, was or subsequently
became an Acquiring Person or an Affiliate or Associate
of an Acquiring Person.
Dated: , 19
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment
and Certificate must correspond to the name as written
upon the face of this Rights Certificate in every
particular, without alteration or enlargement or any
change whatsoever.
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires
to exercise Rights represented by
the Rights Certificate.)
To: GREAT WESTERN FINANCIAL CORPORATION:
The undersigned hereby irrevocably elects
to exercise __________ Rights represented by this Rights
Certificate to purchase the shares of Preferred Stock
issuable upon the exercise of the Rights (or such other
securities of the Company or of any other person which
may be issuable upon the exercise of the Rights) and
requests that certificates for such shares be issued in
the name of and delivered to:
Please insert social security
or other identifying number
(Please print name and address)
If such number of Rights shall not be all
the Rights evidenced by this Rights Certificate, a new
Rights Certificate for the balance of such Rights shall
be registered in the name of and delivered to:
Please insert social security
or other identifying number
(Please print name and address)
Dated: , 19
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by
checking the appropriate boxes that:
(1) the Rights evidenced by
this Rights Certificate [ ] are [ ] are not being
exercised by or on behalf of a Person who is or was an
Acquiring Person or an Affiliate or Associate or any such
Acquiring Person (as such terms are defined in the Rights
Agreement);
(2) after due inquiry and to
the best knowledge of the undersigned, it [ ] did [ ]
did not acquire the Rights evidenced by this Rights
Certificate from any Person who is, was or became an
Acquiring Person or an Affiliate or Associate of an
Acquiring Person.
Date: , 19
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Election to
Purchase and Certificate must correspond to the name as
written upon the face of this Rights Certificate in every
particular, without alteration or enlargement or any
change whatsoever.
