<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) or (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
The Harper Group, Inc.
(Exact name of registrant as specified in its charter)
Delaware 94-1740320
(State or other jurisdiction (IRS Employer
of incorporation Identification No.)
or organization)
260 Townsend Street
San Francisco, California 904107-0933
(Address of principal executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange
Title of each class to on which each class is
be so registered is to be registered
None None
Securities to be registered pursuant to Section 12(g) of the Act:
Preferred Share Purchase Rights
(Title of Class)
<PAGE> 2
Item 1.Description of Registrant's
Securities to be Registered
On October 24, 1994, the Board of Directors of The Harper
Group, Inc., (the "Company") declared a dividend of one preferred
share purchase right (a "Right") for each outstanding share of common
stock, par value $1.00 per share, of the Company (the "Common Shares"). The
dividend is payable on November 7, 1994 (the "Record Date") to the
stockholders of record on that date. Each Right entitles the registered
holder to purchase from the Company one one-hundredth of a share of Series
A Junior Participating Preferred Stock, par value $1.00 per share (the
"Series A Preferred Shares"), of the Company at a price of $53.00 per one
one-hundredth of a Series A Preferred Share (the "Purchase Price"), subject to
adjustment. The description and terms of the Rights are set forth in a Rights
Agreement dated as of October 24, 1994 (the "Rights Agreement") between the
Company and Chemical Trust Company of California, as Rights Agents (the "Rights
Agent").
Until the earlier to occur of (i) a public announcement by the Company
that a person or group of affiliated or associated persons has
acquired beneficial ownership of 20% or more of the outstanding
Common Shares, or a determination by the Board that a person or group of
affiliated or associated persons constitutes an Adverse Person (as defined
below) (in either case, an "Acquiring Person") or (ii) ten business days (or
such later date as may be determined by action of the Board of Directors prior
to such time as any person or group of affiliated or associated persons becomes
an Acquiring Person) following the commencement of, or announcement of an
intention to make, a tender offer or exchange offer the consummation of which
would result in the beneficial ownership by a person or group of 20% or
more of the outstanding Common Shares (the earlier of the dates referred to in
clauses (i) and (ii) being called the "Distribution Date"), the Rights will
be evidenced, with respect to any of the Common Share certificates
outstanding as of the Record Date, by such Common Share certificates together
with a copy of this Summary of Rights.
As set forth in the Rights Agreement, an "Adverse Person" means
any person declared to be an Adverse Person by the Board of Directors of the
Company upon a determination that such Person, along or together with its
affiliates and associates, has become the beneficial owner of a number of
Common Shares that the Board of Directors determines to be substantial
(which amount shall in no event be less than 10% of the Common Shares then
outstanding) and a determination by the Board of Directors after reasonable
inquiry and investigation, including consultation with such Persons as the
Board of Directors shall deem appropriate, that (i) such beneficial ownership
by such person is intended to cause the Company to repurchase the Common
Shares beneficially owned by such Person or to cause pressure on the
Company to take action or enter into a transaction or series of transactions
intended to provide such Person with short-term financial gain under
circumstances where the Board of Directors determines that the best long-term
interest of the Company, its subsidiaries and its stockholders would not be
served by taking such action or entering into such transaction or series of
transactions at that time or (ii) such beneficial ownership is causing or
reasonably likely to cause a material adverse impact on the business or
prospects of the Company, its subsidiaries and its stockholders.
The Rights Agreement provides that, until the Distribution Date
(or earlier redemption or expiration of the Rights), the Rights will be
transferred with and only with the Common Shares. Until the Distribution
Date (or earlier redemption or expiration of the Rights), new Common Share
certificates issued after the Record Date upon transfer or new issuances of
Common Shares will contain a notation incorporating the Rights Agreement by
reference. Until the Distribution Date (or earlier redemption or
expiration of the Rights), the surrender for transfer of any certificates for
Common Shares outstanding as of the Record Date, even without such notation or
a copy of this Summary of Rights, will also constitute the transfer of the
Rights associated with the Common Shares represented by such certificate.
As soon as practicable following the Distribution Date, separate certificates
evidencing the Rights ("Rights Certificates") will be mailed to holders of
record of the Common Shares as of the close of business on the Distribution
Date and such separate Right Certificates alone will evidence the Rights.
<PAGE> 3
The Rights are not exercisable until the Distribution Date.
The Rights will expire on October 24, 2004 (the "Final Expiration
Date"), unless the Final Expiration Date is extended or unless the Rights are
earlier redeemed or exchanged by the Company, in each case as described below.
The Purchase Price payable, and the number of Series A
Preferred Shares or other securities or property issuable, upon exercise of
the Rights are subject to adjustment from time to time (i) in the event of a
stock dividend on, or a subdivision, combination or reclassification of, the
Series A Preferred Shares, (ii) upon the grant to holders of the Series A
Preferred Shares of certain rights or warrants to subscribe for or purchase
Series A Preferred Shares at a price, or securities convertible into Series A
Preferred Shares with a conversion price, less than the then-current market
price of the Series A Preferred Shares or (iii) upon the distribution to
holders of the Series A Preferred Shares of evidences of indebtedness or assets
(excluding regular periodic cash dividends paid out of earnings or retained
earnings or dividends payable in Series A Preferred Shares) or of subscription
rights and warrants (other than those referred to above).
The number of outstanding Rights are also subject to
adjustment in the event of a stock split of the Common Shares or a stock
dividend on the Common Shares payable in Common Shares or subdivisions,
consolidations or combinations of the Common Shares occurring, in any such
case, prior to the Distribution Date.
In the event that the Board of Directors determines that any
person or group of affiliated or associated persons becomes an
Acquiring Person, proper provision is required to be made so that each holder
of a Right, other than the Acquiring Person (whose Rights will become void),
will thereafter have the right to receive upon exercise of the Right, at
its then current exercise price, that number of Common Shares having a
market value of two times the exercise price of the Right.
In the event that, after a determination by the Board of
Directors that a person or group has become an Acquiring Person, the Company
is acquired in a merger or other business combination transaction or
50% or more of its consolidated assets or earning power are sold, proper
provision is required to be made so that each holder of a Right (other than
an Acquiring Person, whose Rights will have become void) will thereafter have
the right to receive, upon the exercise of the Right at its them current
exercise price, that number of shares of common stock of the person with whom
the Company has engaged in the foregoing transaction which at the time of
such transaction have a market value of two times the exercise price of the
Right.
At any time after a determination by the Board of Directors
that any person or group has become an Acquiring Person and prior to the
<PAGE> 4
acquisition by such person or group of 50% or more of the outstanding
Common Shares, the Board of Directors of the Company may exchange the
Rights (other than Rights owned by such person or group, which will have
become void), in whole or in part, for Common Shares or Series A Preferred
Shares at an exchange ratio of one Common Share, or one one-hundredth of a
Series A Preferred Share (or of a share of a class or series of the
Company's preferred stock having equivalent rights, preferences and
privileges), per Right (subject to adjustment).
With certain exceptions, no adjustment in the Purchase Price
will be required until cumulative adjustments require an adjustment of
at least 1% in such Purchase Price. No fractional Series A Preferred Shares
will be issued (other than fractions which are integral multiples of one
one-hundredth of a Series A Preferred Share, which may, at the election of
the Company, be evidenced by depository receipts) and in lieu thereof, an
adjustment in cash will be made based on the market price of the Series A
Preferred Shares on the last trading day prior to the date of exercise.
At any time prior to the time an Acquiring Person becomes
such, the Board of Directors of the Company may redeem the Rights in
whole, but not in part, at a price of $.01 per Right (the "Redemption Price").
The redemption of the Rights may be made effective at such time, on
such basis and with such conditions as the Board of Directors in its sole
discretion may establish. Immediately upon any redemption of the Rights, the
right to exercise the Rights will terminate and the only right of the
holders of Rights will be to receive the Redemption Price.
For so long as the Rights are then redeemable, the Company
may amend the Rights in any manner other than to change the Redemption
Price or provide for an earlier Final Expiration Date. After the Rights are
no longer redeemable the Company may amend the Rights in any manner that does
not adversely affect the interests of holders of the Rights.
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.
The form of Rights Agreement (which includes as Exhibit A
thereto the Certificate of Designation, Preferences and Rights of the Series A
Junior Participating Preferred Stock, as Exhibit B thereto the form of Right
Certificate, and as Exhibit C thereto the Summary of Rights to Purchase
Preferred Shares) is attached hereto as an exhibit and incorporated herein by
reference. This summary description of the Rights does not purport to be
complete and is qualified in its entirety by reference to such exhibits.
<PAGE> 5
Item 2.Exhibits
Conformed copy of Rights Agreement dated as of October 24,
1994 between The Harper Group, Inc. and Chemical Trust Company of
California, as Rights Agent, which includes as Exhibit A thereto the
Certificate of Designation, Preferences and Rights of the Series A Junior
Participating Preferred Stock, as Exhibit B thereto the Form of Right
Certificate, and as Exhibit C thereto a Summary of Rights to Purchase Common
Stock. Right Certificates will not be mailed until after the Distribution
Date (as that term is defined in the Rights Agreement).
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this
registration statement to be signed on its behalf by the undersigned, thereto
duly authorized.
THE HARPER GROUP, INC.
Date: October 24, 1994 By: /s/ Robert H. Kennis
Robert H. Kennis
Vice President
October 25, 1994
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: The Harper Group, Inc.
Request for Acceleration of Effective Date
for Registration Statement on Form 8-A
Ladies and Gentlemen:
The Harper Group, Inc. hereby requests acceleration of the
effective date for the above-referenced Registration Statement to 12:00
noon Washington, D.C. time on November 4, 1994, or as soon thereafter as
practicable.
Sincerely yours,
THE HARPER GROUP, INC.
Robert Kennis, Signature
Vice President
<PAGE> 6
EXHIBIT INDEX
Exhibit Number
Description 1 Rights Agreement, dated as of October 24, 1994, between
The Harper Group, Inc. and Chemical Trust Company of California, which includes
as Exhibit A thereto the Certificate of Designation, Preferences and Rights of
Series A Junior Participating Preferred Stock, as Exhibit B thereto the Form
of Right Certificate and as Exhibit C thereto a Summary of Rights to Purchase
Common Stock.
<PAGE> 1
THE HARPER GROUP, INC.
and
CHEMICAL TRUST COMPANY OF CALIFORNIA,
as Rights Agent
RIGHTS AGREEMENT
Dated as of October 24, 1994
TABLE OF CONTENTS
Page
Section 1. Certain Definitions. . . . . . . . . . . . 1
Section 2. Appointment of Rights Agent. . . . . . . . 6
Section 3. Issue of Right Certificates. . . . . . . . 6
Section 4. Form of Right Certificates . . . . . . . . 8
Section 5. Countersignature and Registration. . . . . 8
Section 6. Transfer, Split-Up, Combination and
Exchange of Right Certificates;
Mutilated, Destroyed, Lost or Stolen
Right Certificate. . . . . . . . . . . . . 9
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights. . . . . . . . . 10
Section 8. Cancellation and Destruction of Right
Certificates . . . . . . . . . . . . . . . 12
Section 9. Availability of Preferred Shares . . . . . 12
Section 10. Preferred Shares Record Date . . . . . . . 14
Section 11. Adjustment of Purchase Price, Number of
Shares or Number of Rights . . . . . . . . 14
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares . . . . . . . . . . . . . 24
Section 13. Consolidation, Merger or Sale or Transfer
of Assets or Earning Power . . . . . . . . 24
Section 14. Fractional Rights and Fractional Shares. . 28
Section 15. Rights of Action . . . . . . . . . . . . . 30
Section 16. Agreement of Right Holders . . . . . . . . 30
Section 17. Right Certificate Holder Not Deemed a
Stockholder. . . . . . . . . . . . . . . . 31
Section 18. Concerning the Rights Agent. . . . . . . . 31
Section 19. Merger or Consolidation or Change of Name
of Rights Agent. . . . . . . . . . . . . . 32
Section 20. Duties of Rights Agent . . . . . . . . . . 33
Section 21. Change of Rights Agent . . . . . . . . . . 35
Section 22. Issuance of New Right Certificates . . . . 36
Section 23. Redemption . . . . . . . . . . . . . . . . 37
Section 24. Exchange . . . . . . . . . . . . . . . . . 37
Section 25. Notice of Certain Events . . . . . . . . . 39
Section 26. Notices. . . . . . . . . . . . . . . . . . 40
Section 27. Supplements and Amendments . . . . . . . . 41
Section 28. Successors . . . . . . . . . . . . . . . . 41
Section 29. Benefits of this Agreement . . . . . . . . 41
Section 30. Severability . . . . . . . . . . . . . . . 42
Section 31. Governing Law. . . . . . . . . . . . . . . 42
Section 32. Counterparts . . . . . . . . . . . . . . . 42
Section 33. Descriptive Headings . . . . . . . . . . . 42
EXHIBIT A Certificate Of Designation, Preferences
And Rights Of Series A Junior
Participating Preferred Stock Of The
Harper Group, Inc. . . . . . . . . . . . . 43
EXHIBIT B Form of Right Certificate. . . . . . . . . 1
EXHIBIT C Summary Of Rights To Purchase Preferred
Shares . . . . . . . . . . . . . . . . . . 1
RIGHTS AGREEMENT
Agreement, dated as of October 24, 1994, between
The Harper Group, Inc., a Delaware corporation (the
"Company"), and Chemical Trust Company of California, a
corporation organized under laws of California (the "Rights
Agent").
The Board of Directors of the Company has
authorized and declared a dividend of one preferred share
purchase right (a "Right") for each Common Share (as
hereinafter defined) of the Company outstanding as of the
close of business (as defined below) on November 7, 1994 (the
"Record Date"), each Right representing the right to purchase
one one-hundredth (subject to adjustment) of a Preferred
Share (as hereinafter defined), upon the terms and subject to
the conditions herein set forth, and has further authorized
and directed the issuance of one Right (subject to adjustment
as provided herein) with respect to each Common Share that
shall be issued and become outstanding between the Record
Date and the earliest of the Distribution Date, the
Redemption Date and the Final Expiration Date (as such terms
are hereinafter defined); provided, however, that Rights may
be issued with respect to Common Shares that shall be issued
and become outstanding after the Distribution Date and prior
to the Redemption Date and the Final Expiration Date in
accordance with Section 22.
Accordingly, in consideration of the premises and
the mutual agreements herein set forth, the parties hereby
agree as follows:
Section 1. Certain Definitions. For purposes of
this Agreement, the following terms have the meaning
indicated:
(a) "Acquiring Person" shall mean (i) any
Person (as such term is hereinafter defined) who or which
shall be the Beneficial Owner (as such term is hereinafter
defined) of 2O% or more of the Common Shares then
outstanding, or (ii) any Person who is an Adverse Person (as
such term is hereinafter defined), but shall not include any
Exempt Person (as such term is hereinafter defined) or any
Person who or which has received the approval of the Board of
Directors of the Company (including a majority of the
Continuing Directors) to become the Beneficial Owner of 20%
or more of the Common Shares then outstanding, which approval
may be before or after the Person becomes the Beneficial
Owner of 20% or more of the Common Shares; provided, however,
that if the Board of Directors of the Company determines in
good faith that a Person who would otherwise be an "Acquiring
Person" has become such inadvertently, and such Person
divests himself or itself as promptly as practicable of
beneficial ownership of a sufficient number of Common Shares
so that such Person would no longer be an Acquiring Person,
then such Person shall not be deemed to be or have become an
"Acquiring Person" for any purposes of this Agreement.
Notwithstanding the foregoing, no Person shall become an
"Acquiring Person" as the result of an acquisition of Common
Shares by the Company which, by reducing the number of shares
outstanding, increases the proportionate number of shares
beneficially owned by such Person to 2O% or more of the
Common Shares then outstanding (or, with respect to an
Adverse Person, such lesser percentage as shall have been
fixed by the Board of Directors of the Company in its
determination that such Person is an Adverse Person),
provided, however, that if a Person shall become the
Beneficial Owner of 20% or more of the Common Shares then
outstanding (or, with respect to an Adverse Person, such
lesser percentage as shall have been fixed by the Board of
Directors of the Company in its determination that such
Person is an Adverse Person) by reason of such Common Share
acquisitions by the Company and thereafter becomes the
Beneficial Owner of any additional Common Shares, then such
Person shall be deemed to be an "Acquiring Person." The
phrase "then outstanding," when used with reference to a
Person's Beneficial Ownership of securities of the Company,
shall mean the number of such securities then issued and
outstanding together with the number of such securities not
then actually issued and outstanding which such Person would
be deemed to own beneficially hereunder.
(b) "Adverse Person" shall mean any Person
declared to be an Adverse Person by the Board of Directors of
the Company upon a determination that such Person, alone or
together with its Affiliates and Associates, has become the
Beneficial Owner of a number of Common Shares that the Board
of Directors determines to be substantial (which amount shall
in no event be less than 10% of the Common Shares then
outstanding) and a determination by the Board of Directors
after reasonable inquiry and investigation, including
consultation with such Persons as the Board of Directors
shall deem appropriate, that (i) such Beneficial Ownership by
such Person is intended to cause the Company to repurchase
the Common Shares beneficially owned by such Person or to
cause pressure on the Company to take action or enter into a
transaction or series of transactions intended to provide
such Person with short-term financial gain under
circumstances where the Board of Directors determines that
the best long-term interest of the Company, its subsidiaries
and its stockholders would not be served by taking such
action or entering into such transaction or series of
transactions at that time or (ii) such Beneficial Ownership
is causing or reasonably likely to cause a material adverse
impact on the business or prospects of the Company, its
subsidiaries and its stockholders.
(c) "Affiliate" and "Associate" shall have
the respective meanings ascribed to such terms in Rule 12b-2
of the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as in
effect on the date of this Agreement.
(d) A Person shall be deemed the "Beneficial
Owner" of, shall be deemed to have "Beneficial Ownership" of,
and shall be deemed to "beneficially own" any securities:
(i) which such Person or any of such Person's
Affiliates or Associates is deemed to beneficially own,
directly or indirectly within the meaning of Rule 13d-3 of
the General Rules and Regulations under the Exchange Act as
in effect on the date of this Agreement;
(ii) which such Person or any of such Person's
Affiliates or Associates has (A) the right to acquire
(whether such right is exercisable immediately or only after
the passage of time or the occurrence of certain events)
pursuant to any agreement, arrangement or understanding
(other than customary agreements with and between
underwriters and selling group members with respect to a bona
fide public offering of securities), 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, (x) securities tendered pursuant to a tender or exchange
offer made by or on behalf of such Person or any of such
Person's Affiliates or Associates until such tendered
securities are accepted for purchase, (y) securities which
such Person has a right to acquire upon the exercise of
Rights at any time prior to the time a Person becomes an
Acquiring Person or (z) securities issuable upon exercise of
Rights from and after the time a Person becomes an Acquiring
Person if such 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 ("original Rights") or pursuant to Section 11(i) or
Section 11(n) with respect to an adjustment to original
Rights; or (B) the right to vote pursuant to any agreement,
arrangement or understanding; provided, however, that a
Person shall not be deemed the Beneficial Owner of, or to
beneficially own, any securities by reason of such agreement,
arrangement or understanding if the agreement, arrangement or
understanding to vote such security (1) arises solely from a
revocable proxy or consent given to such Person in response
to a public proxy or consent solicitation made pursuant to,
and in accordance with, the applicable rules and regulations
promulgated under the Exchange Act and (2) is not also then
reportable on Schedule 13D under the Exchange Act (or any
comparable or successor report); or
(iii) which are beneficially owned, directly or
indirectly, by any other Person with which such Person or any
of such Person's Affiliates or Associates has any agreement,
arrangement or understanding (other than customary agreements
with and between underwriters and selling group members with
respect to a bona fide public offering of securities) for the
purpose of acquiring, holding, voting (except to the extent
contemplated by the proviso to Section 1(d)(ii)(B)) or
disposing of any securities of the Company.
(e) "Business Day" shall mean any day other
than a Saturday, a Sunday, or a day on which banking
institutions in the State of California are authorized or
obligated by law or executive order to close.
(f) "Close of business" on any given date
shall mean 5:00 p.m., San Francisco time, on such date;
provided, however, that if such date is not a Business Day it
shall mean 5:00 P.M., San Francisco time, on the next
succeeding business day.
(g) "Common Shares" when used with reference
to the Company shall mean shares of Common Stock of the
Company. "Common Shares" when used with reference to any
Person other than the Company shall mean the stock (or, in
the case of an unincorporated entity, the equivalent equity
interest) with the greatest voting power of such other Person
or, if such other Person is a subsidiary of another Person,
the Person or Persons which ultimately control such first-
mentioned Person.
(h) "Common Stock" shall mean the common
stock, presently par value $1.00 per share, of the Company.
(i) "Continuing Director" shall mean (i) any
member of the Board of Directors of the Company, while such
Person is a member of the Board of Directors of the Company,
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 who was a
member of the Board of Directors of the Company prior to the
date of this Agreement, or (ii) any Person who subsequently
becomes a member of the Board of Directors of the Company,
while such Person is a member of the Board of Directors of
the Company, 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 of Directors of the Company is recommended or approved
by a majority of the Continuing Directors.
(j) "Distribution Date" shall have the
meaning set forth in Section 3 hereof.
(k) "Exempt Person" shall mean the Company,
any Subsidiary (as such term is hereinafter defined) of the
Company, any employee benefit plan of the Company or of any
Subsidiary of the Company, or any entity or trustee holding
Common Shares for or pursuant to the terms of any such plan
or for the purpose of funding any such plan or funding other
employee benefits for employees of the Company or of any
Subsidiary of the Company.
(l) "Final Expiration Date" shall have the
meaning set forth in Section 7 hereof.
(m) "NYSE" shall mean the New York Stock
Exchange, Inc.
(n) "Person" shall mean any individual, firm,
corporation or other entity, and shall include any successor
(by merger or otherwise) of such entity.
(o) "Preferred Shares" shall mean shares of
Series A Junior Participating Preferred Stock, par value
$1.00 per share, of the Company having the rights and
preferences set forth in the form of Certificate of
Designation, Preferences and Rights of Series A Junior
Participating Preferred Stock attached to this Agreement as
Exhibit A.
(p) "Purchase Price" shall have the meaning
set forth in paragraph (b) of Section 7 hereof.
(q) "Redemption Date" shall have the meaning
set forth in Section 7 hereof.
(r) "Securities Act" shall mean the
Securities Act of 1933, as amended.
(s) "Shares Acquisition Date" shall mean the
first date of public announcement by the Company that an
Acquiring Person has become such or, in the case of an
Adverse Person, the date on which the Board of Directors
declares such Person to be an Adverse Person.
(t) "Subsidiary" of any Person shall mean any
corporation or other entity of which securities or other
ownership interests having ordinary voting power sufficient
to elect a majority of the board of directors or other
persons performing similar functions are beneficially owned,
directly or indirectly, by such Person, and any corporation
or other entity that is otherwise controlled by such Person.
<PAGE> 6
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 Shares) 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 Right Certificates.
(a) Until the earlier of (i) the Shares
Acquisition Date or (ii) the tenth Business Day (or such
later date as may be determined by action of the Board of
Directors prior to such time as any Person becomes an
Acquiring Person) after the date of the commencement by any
Person (other than an Exempt Person) of, or of the first
public announcement of the intention of such Person (other
than an Exempt Person) to commence, a tender or exchange
offer the consummation of which would result in any Person
becoming the Beneficial Owner of Common Shares aggregating
20% or more of the Common Shares then outstanding (including
any such date which is after the date of this Agreement and
prior to the issuance of the Rights; the earlier of such
dates referred to in the foregoing clauses (i) and (ii) being
herein referred to as the "Distribution Date"), (x) the
Rights will be evidenced (subject to the provisions of
Section 3(b) hereof) by the certificates for Common Shares
registered in the names of the holders thereof and not by
separate Right Certificates, and (y) the Rights will be
transferable only in connection with the transfer of Common
Shares; provided, however, that if a tender offer is
terminated prior to the occurrence of a Distribution Date,
then no Distribution Date shall occur as a result of such
tender offer. As soon as practicable after the Distribution
Date, the Company will prepare and execute, the Rights Agent
will countersign, and the Company will send or cause to be
sent (and the Rights Agent will, if requested, send) by
first-class, insured, postage-prepaid mail, to each record
holder of Common Shares as of the close of business on the
Distribution Date (other than any Acquiring Person or any
Associate or Affiliate of an Acquiring Person), at the
address of such holder shown on the records of the Company, a
Right Certificate, in substantially the form of Exhibit B
hereto (a "Right Certificate"), evidencing one Right (subject
to adjustment as provided herein) for each Common Share so
held. As of the Distribution Date, the Rights will be
evidenced solely by such Right Certificates.
(b) On the Record Date, or as soon as
practicable thereafter, the Company will send a copy of a
Summary of Rights to Purchase Preferred Shares, in
substantially the form of Exhibit C hereto (the "Summary of
Rights"), by first-class, postage-prepaid mail, to each
record holder of Common Shares as of the close of business on
the Record Date (other than any Acquiring Person or any
Associate or Affiliate of any Acquiring Person), at the
address of such holder shown on the records of the Company.
With respect to certificates for Common Shares outstanding as
of the Record Date, until the Distribution Date, the Rights
will be evidenced by such certificates registered in the
names of the holders thereof together with the Summary of
Rights. Until the Distribution Date (or the earlier of the
Redemption Date or the Final Expiration Date), the surrender
for transfer of any certificate for Common Shares outstanding
on the Record Date, with or without a copy of the Summary of
Rights, shall also constitute the transfer of the Rights
associated with the Common Shares represented thereby.
(c) Certificates issued for Common Shares
(including, without limitation, upon transfer of outstanding
Common Shares or issuance or reissuance of Common Shares out
of authorized but unissued shares) after the Record Date but
prior to the earliest of the Distribution Date, the
Redemption Date or the Final Expiration Date shall have
impressed on, printed on, written on or otherwise affixed to
them the following legend:
This certificate also evidences and
entitles the holder hereof to certain
rights as set forth in a Rights Agreement
between The Harper Group, Inc. and
Chemical Trust Company of California, as
Rights Agent, dated as of October 24,
1994 (the "Rights Agreement") as the same
may be amended from time to time, the
terms of which are hereby incorporated
herein by reference and a copy of which
is on file at the principal executive
offices of The Harper Group, Inc. Under
certain circumstances, as set forth in
the Rights Agreement, such Rights will be
represented by separate certificates and
will no longer be represented by this
certificate. The Harper Group, Inc. will
mail to the holder of this certificate on
request and without charge a copy of the
Rights Agreement. Under certain
circumstances, as set forth in the Rights
Agreement, Rights owned by or transferred
to any Person who becomes an Acquiring
Person (as defined in the Rights
Agreement) and certain transferees
thereof will become null and void and
will no longer be transferable.
With respect to such certificates containing the foregoing
legend, until the Distribution Date, the Rights associated
with the Common Shares represented by such certificates shall
be evidenced by such certificates alone, and the surrender
for transfer of any such certificate, except as otherwise
provided herein, shall also constitute the transfer of the
Rights associated with the Common Shares represented thereby.
In the event that the Company purchases or otherwise acquires
any Common Shares after the Record Date but prior to the
Distribution Date, any Rights associated with such Common
Shares shall be deemed cancelled and retired so that the
Company shall not be entitled to exercise any Rights
associated with the Common Shares which are no longer
outstanding.
Notwithstanding this paragraph (c), the omission of
a legend shall not affect the enforceability of any part of
this Agreement or the rights of any holder of the Rights.
<PAGE> 8
Section 4. Form of Right Certificates. The Right
Certificates (and the forms of election to purchase Preferred
Shares and of assignment to be printed on the reverse
thereof) shall 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 the NYSE or of any other stock exchange
or automated quotation system on which the Rights may from
time to time be listed, or to conform to usage. Subject to
the provisions of Section 11 and 22 hereof, the Right
Certificates shall entitle the holders thereof to purchase
such number of one one-hundredths of a Preferred Share as
shall be set forth therein at the price per one one-hundredth
of a Preferred Share set forth therein (the "Purchase
Price").
Section 5. Countersignature and Registration.
(a) The Right Certificates shall be executed
on behalf of the Company by its Chairman of the Board, its
Chief Executive Officer, its President, any of its Vice
Presidents, or its Treasurer, either manually or by facsimile
signature, shall have affixed thereto the Company's seal or a
facsimile thereof, and shall be attested by the Secretary or
an Assistant Secretary of the Company, either manually or by
facsimile signature. The Right Certificates shall be
countersigned by the Rights Agent and shall not be valid for
any purpose unless so countersigned. In case any officer of
the Company who shall have signed any of the Right
Certificates shall cease to be such officer of the Company
before countersignature by the Rights Agent and issuance and
delivery by the Company, such Right Certificates may
nevertheless 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 Right Certificates had
not ceased to be such officer of the Company; and any Right
Certificate may be signed on behalf of the Company by any
person who, at the actual date of the execution of such Right
Certificate, shall be a proper officer of the Company to sign
such Right 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 such Right Certificate or transfer, books for
registration and transfer of the Right Certificates issued
hereunder. Such books shall show the names and addresses of
the respective holders of the Right Certificates, the number
of Rights evidenced on its face by each of the Right
Certificates and the Certificate number and the date of each
of the Right Certificates.
<PAGE> 9
Section 6. Transfer, Split-Up, Combination and
Exchange of Right Certificates; Mutilated, Destroyed, Lost or
Stolen Right Certificate. (a) Subject to the provisions of
Sections 11(a)(ii) and 14 hereof, at any time after the close
of business on the Distribution Date, and at or prior to the
close of business on the earlier of the Redemption Date or
the Final Expiration Date, any Right Certificate or Right
Certificates (other than Right Certificates representing
Rights that have become void pursuant to Section 11(a)(ii)
hereof or that have been exchanged pursuant to Section 24
hereof) may be transferred, split up, combined or exchanged
for another Right Certificate or Right Certificates,
entitling the registered holder to purchase a like number of
one one-hundredths of a Preferred Share as the Right
Certificate or Right Certificates surrendered then entitled
such holder to purchase. Any registered holder desiring to
transfer, split up, combine or exchange any Right Certificate
or Right Certificates shall make such request in writing
delivered to the Rights Agent, and shall surrender the Right
Certificate or Right Certificates to be transferred, split
up, combined or exchanged at the 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 Right Certificate until the registered holder
shall have completed and signed the certificate contained in
the form of assignment on the reverse side of such Right
Certificate and shall have provided such additional evidence
of the identity of the Beneficial Owner (or former Beneficial
Owner) or Affiliates or Associates thereof as the Company
shall reasonably request. Thereupon the Rights Agent shall
countersign and deliver to the Person entitled thereto a
Right Certificate or Right 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 Right Certificates.
(b) Subject to the provisions of Section
11(a)(ii) hereof, upon receipt by the Company and the Rights
Agent of evidence reasonably satisfactory to them of the
loss, theft, destruction or mutilation of a Right
Certificate, and, in case of loss, theft or destruction, of
indemnity or security reasonably satisfactory to them, and,
at the Company's request, 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 Right Certificate if mutilated, the
Company will make and deliver a new Right Certificate of like
tenor to the Rights Agent for countersignature and delivery
to the registered holder in lieu of the Right Certificate so
lost, stolen, destroyed or mutilated.
<PAGE> 10
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights. (a) Except as otherwise provided
herein, the Rights shall become exercisable on the
Distribution Date and thereafter the registered holder of any
Right Certificate may exercise the Rights evidenced thereby
(except as otherwise provided herein) in whole or in part at
any time after the Distribution Date upon surrender of the
Right Certificate, with the form of election to purchase and
the certificate on the reverse side thereof duly executed, to
the Rights Agent at the principal office or offices of the
Rights Agent designated for such purpose, together with
payment of the aggregate Purchase Price for the total number
of one one-hundredths of a Preferred Share (or other
securities, as the case may be) as to which such surrendered
Rights are exercised, at any time which is both after the
Distribution Date and prior to the earliest of (i) the close
of business on October 24, 2004 (the "Final Expiration
Date"), (ii) the time at which the Rights are redeemed as
provided in Section 23 hereof (the "Redemption Date") or
(iii) the time at which such Rights are exchanged as provided
in Section 24 hereof.
(b) The Purchase Price shall be initially
$53.00 for each one one-hundredth of a Preferred Share
purchasable upon the exercise of a Right. The Purchase Price
and the number of one one-hundredths of a Preferred Share or
other securities or property to be acquired upon exercise of
a Right shall be subject to adjustment from time to time as
provided in Sections 11 and 13 hereof and shall be payable in
lawful money of the United States of America in accordance
with paragraph (c) of this Section 7.
(c) Except as otherwise provided herein, upon
receipt of a Right Certificate representing exercisable
Rights, with the form of election to purchase duly executed,
accompanied by payment of the aggregate Purchase Price for
the Preferred Shares to be purchased and an amount equal to
any applicable transfer tax required to be paid by the holder
of such Right Certificate in accordance with Section 9
hereof, in cash or by certified check, cashier's check or
money order payable to the order of the Company, the Rights
Agent shall thereupon promptly (i) (A) requisition from any
transfer agent of the Preferred Shares certificates for the
number of Preferred Shares to be purchased and the Company
hereby irrevocably authorizes its transfer agent to comply
with all such requests, or (B) if the Preferred Shares are
then represented by depositary receipts, requisition from the
depositary agent depositary receipts representing interests
in such number of one one-hundredths of a Preferred Share as
are to be purchased (in which case certificates for the
Preferred Shares represented by such receipts shall be
deposited by the transfer agent with the depositary agent)
and the Company hereby directs the depositary agent to comply
with such request, (ii) when appropriate, requisition from
the Company the amount of cash to be paid in lieu of issuance
of fractional shares in accordance with Section 14 hereof,
(iii) promptly after receipt of such certificates or
depositary receipts, cause the same to be delivered to or
upon the order of the registered holder of such Right
Certificate, registered in such name or names as may be
designated by such holder and (iv) when appropriate, after
receipt, promptly deliver such cash to or upon the order of
the registered holder of such Right Certificate.
(d) Except as otherwise provided herein, in
case the registered holder of any Right Certificate shall
exercise less than all the Rights evidenced thereby, a new
Right Certificate evidencing Rights equivalent to the Rights
remaining unexercised shall be issued by the Rights Agent to
the registered holder of such Right Certificate or to his
duly authorized assigns, subject to the provisions of
Section 14 hereof.
(e) 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 Right Certificate
surrendered for such exercise and (ii) provided such
additional evidence of the identity of the Beneficial Owner
(or former Beneficial Owner) or Affiliates or Associates
thereof as the Company shall reasonably request.
<PAGE> 12
Section 8. Cancellation and Destruction of Right
Certificates. All Right Certificates surrendered for the
purpose of exercise, transfer, split up, combination or
exchange shall, if surrendered to the Company or to 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 Right 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
Right Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights Agent
shall deliver cancelled Right Certificates to the Company, or
shall, at the written request of the Company, destroy such
cancelled Right Certificates, and in such case shall deliver
a certificate of destruction thereof to the Company.
Section 9. Availability of Preferred Shares.
(a) The Company covenants and agrees that it
will cause to be reserved and kept available out of its
authorized and unissued Preferred Shares the number of
Preferred Shares that will be sufficient to permit the
exercise in full of all outstanding Rights.
(b) So long as the Preferred Shares (and,
following the time that a Person becomes an Acquiring Person,
shares of Common Stock and other securities) issuable upon
the exercise of Rights may be listed or admitted to trading
on the NYSE or listed or quoted on any other national
securities exchange or automated quotation system, 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 or admitted to
trading on the NYSE or listed or quoted on such other
exchange or automated quotation system upon official notice
of issuance upon such exercise.
(c) From and after such time as the Rights
become exercisable, the Company shall use its best efforts
to, if then necessary to permit the issuance of Preferred
Shares (and following the time that a Person first becomes an
Acquiring Person, shares of Common Stock and other
securities) upon the exercise of Rights, register and qualify
such Preferred Shares (and following the time that a Person
first becomes an Acquiring Person, shares of Common Stock and
other securities) under the Securities Act and any applicable
state securities or "Blue Sky" laws (to the extent exemptions
therefrom are not available), cause such registration
statement and qualifications to become effective as soon as
possible after such filing and keep such registration and
qualifications effective until the earlier of the date as of
which the Rights are no longer exercisable for such
securities and the Final Expiration Date. The Company may
temporarily suspend, for a period of time not to exceed 90
days, the exercisability of the Rights in order to prepare
and file a registration statement under the Securities Act
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. Notwithstanding any
provision of this Agreement to the contrary, the Rights shall
not be exercisable in any jurisdiction unless the requisite
qualification in such jurisdiction shall have been obtained
and until a registration statement under the Securities Act
(if required) shall 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 Preferred Shares (and, following the time that a Person
becomes an Acquiring Person, shares of Common Stock and other
securities) delivered upon exercise of Rights shall, at the
time of delivery of the certificates therefor (subject to
payment of the Purchase Price), be duly and validly
authorized and issued and fully paid and nonassessable
shares.
(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 Right Certificates
or of any Preferred Shares (or shares of Common Stock or
other securities) upon the exercise of Rights. The Company
shall not, however, be required to pay any transfer tax which
may be payable in respect of any transfer or delivery of
Right Certificates to a Person other than, or the issuance or
delivery of certificates or depositary receipts for the
Preferred Shares in a name other than that of, the registered
holder of the Right Certificate evidencing Rights surrendered
for exercise, or to issue or deliver any certificates or
depositary receipts for Preferred Shares upon the exercise of
any Rights until any such tax shall have been paid (any such
tax being payable by the holder of such Right Certificate at
the time of surrender) or until it has been established to
the Company's reasonable satisfaction that no such tax is
due.
<PAGE> 14
Section 10. Preferred Shares Record Date. Each
Person in whose name any certificate for Preferred Shares is
issued upon the exercise of Rights shall for all purposes be
deemed to have become the holder of record of the Preferred
Shares represented thereby on, and such certificate shall be
dated, the date upon which the Right Certificate evidencing
such Rights was duly surrendered and payment of the Purchase
Price (and any applicable transfer taxes) was made; provided,
however, that if the date of such surrender and payment is a
date upon which the Preferred Shares transfer books of the
Company are closed, such Person shall be deemed to have
become the record holder of such shares on, and such
certificate shall be dated, the next succeeding Business Day
on which the Preferred Shares transfer books of the Company
are open. Prior to the exercise of the Rights evidenced
thereby, the holder of a Right Certificate shall not be
entitled to any rights of a holder of Preferred Shares for
which the Rights shall be exercisable, including, without
limitation, the right to vote or to receive dividends or
other distributions, 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
of Shares or Number of Rights. The Purchase Price, the
number of Preferred Shares or other securities or property
purchasable upon exercise of 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 Shares payable in Preferred Shares,
(B) subdivide the outstanding Preferred Shares, (C) combine
the outstanding Preferred Shares into a smaller number of
Preferred Shares or (D) issue any shares of its stock in a
reclassification of the Preferred Shares (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), 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 stock issuable on such date, shall be
proportionately adjusted so that the holder of any Right
exercised after such time shall be entitled to receive the
aggregate number and kind of shares of stock which, if such
Right had been exercised immediately prior to such date and
at a time when the Preferred Shares transfer books of the
Company were open, the holder would have owned upon such
exercise and been entitled to receive by virtue of such
dividend, subdivision, combination or reclassification.
(ii) Subject to Section 24 of this
Agreement and except as otherwise provided in this Section
11(a)(ii), each holder of a Right shall after the close of
business on the Shares Acquisition Date have the right to
receive, upon exercise thereof at a price equal to the then
current Purchase Price multiplied by the number of one one-
hundredths of a Preferred Share for which a Right is then
exercisable, in accordance with the terms of this Agreement
and in lieu of Preferred Shares, such number of shares of
Common Stock (or at the option of the Company, such number of
one one-hundredths of a Preferred Share) as shall equal the
result obtained by (x) multiplying the then current Purchase
Price by the number of one one-hundredths of a Preferred
Share for which a Right is then exercisable and dividing that
product by (y) 50% of the then current per share market price
of the Company's Common Stock (determined pursuant to Section
11(d) hereof) on the date of the occurrence of such event.
Notwithstanding anything in this Agreement to the contrary,
however, from and after the time (the "invalidation time")
when any Person first becomes an Acquiring Person, any Rights
that are beneficially owned by (x) any Acquiring Person (or
any Affiliate or Associate of any Acquiring Person), (y) a
transferee of any Acquiring Person (or any such Affiliate or
Associate) who becomes a transferee after the invalidation
time or (z) a transferee of any Acquiring Person (or any such
Affiliate or Associate) who became a transferee prior to or
concurrently with the invalidation time pursuant to either
(I) a transfer from the Acquiring Person to holders of its
equity securities or to any Person with whom it has any
continuing agreement, arrangement or understanding regarding
the transferred Rights or (II) a transfer which the Board of
Directors has determined is part of a plan, arrangement or
understanding which has the purpose or effect of avoiding the
provisions of this paragraph, and subsequent transferees of
such Persons, shall be void without any further action and
any holder of such Rights shall thereafter have no rights
whatsoever with respect to such Rights under any provision of
this Agreement. The Company shall use all reasonable efforts
to ensure that the provisions of this Section 11(a)(ii) are
complied with, but shall have no liability to any holder of
Right Certificates or other Person as a result of its failure
to make any determinations with respect to an Acquiring
Person or its Affiliates, Associates or transferees
hereunder. From and after the invalidation time, no Right
Certificate shall be issued pursuant to Section 3 or
Section 6 hereof that represents Rights that are or have
become void pursuant to the provisions of this paragraph, and
any Right Certificate delivered to the Rights Agent that
represents Rights that are or have become void pursuant to
the provisions of this paragraph shall be cancelled. From
and after the occurrence of an event specified in Section
13(a) hereof, any Rights that theretofore have not been
exercised pursuant to this Section 11(a)(ii) shall thereafter
be exercisable only in accordance with Section 13 and not
pursuant to this Section 11(a)(ii).
(iii) The Company may at its option
substitute for a share of Common Stock issuable upon the
exercise of Rights in accordance with the foregoing
subparagraph (ii) such number or fractions of Preferred
Shares having an aggregate current market value equal to the
current per share market price of a share of Common Stock.
In the event that there shall not be sufficient shares of
Common Stock issued but not outstanding or authorized but
unissued to permit the exercise in full of the Rights in
accordance with the foregoing subparagraph (ii), the Board of
Directors shall, to the extent permitted by applicable law
and any material agreements then in effect to which the
Company is a party, (A) determine the excess of (1) the value
of the shares of Common Stock issuable upon the exercise of a
Right in accordance with the foregoing subparagraph (ii) (the
"Current Value") over (2) the then current Purchase Price
multiplied by the number of one one-hundredths of a Preferred
Share for which a Right was exercisable immediately prior to
the time that the Acquiring Person became such (such excess,
the "Spread"), and (B) with respect to each Right (other than
Rights which have become void pursuant to Section 11(a)(ii)),
make adequate provision to substitute for the shares of
Common Stock issuable in accordance with subparagraph (ii)
upon exercise of the Right and payment of the applicable
Purchase Price, (1) cash, (2) a reduction in the Purchase
Price, (3) Preferred Shares or other equity securities of the
Company, including, without limitation, shares or fractions
of shares of preferred stock which, by virtue of having
dividend, voting and liquidation rights substantially
comparable to those of the shares of Common Stock, are deemed
in good faith by the Board of Directors to have substantially
the same value as the shares of Common Stock (such Preferred
Shares and shares or fractions of shares of preferred stock
are hereinafter referred to as "Common Share equivalents"),
(4) debt securities of the Company, (5) other assets, or
(6) any combination of the foregoing, having a value which,
when added to the value of the shares of Common Stock
actually issued upon exercise of such Right, shall have an
aggregate value equal to the Current Value (less the amount
of any reduction in the Purchase Price), where such aggregate
value has been determined by the Board of Directors upon the
advise of a nationally recognized investment banking firm
selected in good faith by the Board of Directors; provided,
however, if the Company shall not make adequate provision to
deliver value pursuant to clause (B) above within 30 days
following the date that the Acquiring Person became such (the
"Section 11(a)(ii) Trigger Date"), then the Company shall be
obligated to deliver, to the extent permitted by applicable
law and any material agreements then in effect to which the
Company is a party, 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, such number or fractions of Preferred Shares
(to the extent available) and then, if necessary, cash, which
shares and/or cash have an aggregate value equal to the
Spread. If, upon the date any Person becomes an Acquiring
Person, the Board of Directors 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, then, if the Board of Directors so elects, the
30 day period set forth above may be extended to the extent
necessary, but not more than 90 days after the Section
11(a)(ii) Trigger Date, in order that the Company may seek
stockholder approval for the authorization of such additional
shares (such 30 day period, as it may be extended, is herein
called the "Substitution Period"). To the extent that the
Company determines that some action need be taken pursuant to
the second and/or third sentence of this Section 11(a)(iii),
the Company (x) shall provide, subject to Section 11(a)(ii)
hereof and the last sentence of this Section 11(a)(iii), that
such action shall apply uniformly to all outstanding 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 second 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 shares of Common Stock shall be the current per share
market price (as determined pursuant to Section 11(d)(i)) on
the Section 11(a)(ii) Trigger Date and the per share or
fractional value of any "Common Share equivalent" shall be
deemed to equal the current per share market price of the
Common Shares. The Board of Directors of the Company may,
but shall not be required to, establish procedures to
allocate the right to receive shares of Common Stock upon the
exercise of the Rights among holders of Rights pursuant to
this Section 11(a)(iii).
(b) In case the Company shall fix a record
date for the issuance of rights, options or warrants to all
holders of Preferred Shares entitling them to subscribe for
or purchase Preferred Shares (or shares having the same
rights, privileges and preferences as the Preferred Shares
("equivalent preferred shares")) or securities convertible
into Preferred Shares or equivalent preferred share at a
price per Preferred Share or equivalent preferred share (or
having a conversion price per share) less than the then
current per share market price of the Preferred Shares
(determined pursuant to Section 11(d) hereof) on such record
date, the Purchase Price to be in effect after such record
date shall be determined by multiplying the Purchase Price in
effect immediately prior to such record date by a fraction,
the numerator of which shall be the number of Preferred
Shares and equivalent preferred shares outstanding on such
record date plus the number of Preferred Shares and
equivalent preferred shares which the aggregate offering
price of the total number of Preferred Shares and/or
equivalent preferred shares so to be offered (and/or the
aggregate initial conversion price of the convertible
securities so to be offered) would purchase at such current
market price, and the denominator of which shall be the
number of Preferred Shares and equivalent preferred shares
outstanding on such record date plus the number of Preferred
Shares and/or equivalent preferred shares 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 in a consideration
part or all of which shall be in a form other than cash, the
value of such consideration shall be as determined in good
faith by the Board of Directors of the Company, whose
determination shall be conclusive and shall be described in a
statement filed with the Rights Agent. Preferred Shares and
equivalent preferred shares 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, options or warrants are not so
issued, the Purchase Price shall be adjusted to be the
Purchase Price which would then be in effect if such record
date had not been fixed.
(c) In case the Company shall fix a record
date for the making of a distribution to all holders of the
Preferred Shares (including any such distribution made in
connection with a consolidation or merger in which the
Company is the continuing or surviving corporation) of
evidences of indebtedness or assets (other than a regular
quarterly cash dividend or a dividend payable in Preferred
Shares) or subscription rights or warrants (excluding those
referred to in Section 11(b) hereof), the Purchase Price to
be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to
such record date by a fraction, the numerator of which shall
be the then current per share market price of the Preferred
Shares (determined pursuant to Section 11(d) hereof) 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 assets or evidences
of indebtedness so to be distributed or of such subscription
rights or warrants applicable to one Preferred Share, and the
denominator of which shall be such current per share market
price (determined pursuant to Section 11(d) hereof) of a
Preferred Share. Such adjustments shall be made successively
whenever such a record date is fixed; and in the event that
such distribution is not so made, the Purchase Price shall
again be adjusted to be the Purchase Price which would then
be in effect if such record date had not been fixed.
(d) (i) Except as otherwise provided herein,
for the purpose of any computation hereunder, the "current
per share market price" of any security (a "Security") for
the purpose of this Section 11(d)(i)) on any date shall be
deemed to be the average of the daily closing prices per
share of such Security for the 30 consecutive Trading Days
(as such term is hereinafter defined) immediately prior to
such date; provided, however, that in the event that the
current per share market price of the Security is determined
during a period following the announcement by the issuer of
such Security of (A) a dividend or distribution on such
Security payable in shares of such Security or securities
convertible into such shares, or (B) any subdivision,
combination or reclassification of such Security, and prior
to the expiration of 30 Trading Days after the ex-dividend
date for such dividend or distribution, or the record date
for such subdivision, combination or reclassification, then,
and in each such case, the current per share market price
shall be appropriately adjusted to reflect the current market
price per share equivalent of such Security. The closing
price for each Trading 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 by the principal consolidated
transaction reporting system with respect to securities
listed or admitted to trading on the NYSE or, if the Security
is not listed or admitted to trading on the NYSE, as reported
in the principal consolidated transaction reporting system
with respect to securities listed on the principal national
securities exchange on which the Security is listed or
admitted to trading or, if the Security is not listed or
admitted to trading on any national securities exchange, the
last quoted sale price or, if not so quoted, the average of
the closing bid and asked prices in the over-the-counter
market, as reported on the National Association of Securities
Dealers, Inc. Nasdaq National Market ("Nasdaq") or such other
system then in use, or, if on any such date the Security is
not quoted by any such organization, the average of the
closing bid and asked prices as furnished by a professional
market maker making a market in the Security selected by the
Board of Directors of the Company or, if on any such Trading
Day no market maker is making a market in such Security, the
closing price of such Security shall be deemed to be the fair
value of such Security as determined in good faith by the
Board of Directors of the Company. The term "Trading Day"
shall mean a day on which the principal national securities
exchange on which the Security is listed or admitted to
trading is open for the transaction of business or, if the
Security is not listed or admitted to trading on any national
securities exchange, a Business Day.
(ii) For the purpose of any computation
hereunder, if the Preferred Shares are publicly traded, the
"current per share market price" of the Preferred Shares
shall be determined in accordance with the method set forth
in Section 11(d)(i). If the Preferred Shares are not
publicly traded but the Common Stock is publicly traded, the
"current per share market price" of the Preferred Shares
shall be conclusively deemed to be the current per share
market price of the shares of Common Stock as determined
pursuant to Section 11(d)(i) multiplied by one hundred
(appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date
hereof). If neither the Common Stock nor the Preferred
Shares are publicly traded, "current per share market price"
shall mean the fair value per share as determined in good
faith by the Board of Directors of the Company, whose
determination shall be conclusive and shall be described in a
statement filed with the Rights Agent.
No adjustment in the Purchase Price shall
be required unless such adjustment would require an increase
or decrease of at least 1% in the Purchase Price; provided,
however, that any adjustments which by reason of this Section
11(e) are not required to be made shall be carried forward
and taken into account in any subsequent adjustment. All
calculations under this Section 11 shall be made to the
nearest cent or to the nearest one ten-thousandth of a
Preferred Share or share of Common Stock or other share or
security as the case may be. Notwithstanding the first
sentence of this Section 11(e), any adjustment required by
this Section 11 shall be made no later than the earlier of
(i) one year from the date of the transaction which requires
such adjustment or (ii) the date of the expiration of the
right to exercise any Rights.
(f) If as a result of an adjustment made
pursuant to Section 11(a) hereof, the holder of any Right
thereafter exercised shall become entitled to receive any
shares of stock of the Company other than Preferred Shares,
thereafter the number of such other shares so receivable upon
exercise of any Right shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Preferred
Shares contained in Sections 11(a)(i), 11(b), 11(c) and
11(i), and the provisions of Sections 7, 9, 10 and 13 with
respect to the Preferred Shares 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 Preferred Share 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 Preferred Share (calculated to the nearest
one ten-thousandth of a Preferred Share) obtained by
(i) multiplying (x) the number of one one-hundredths of a
Prepared Share covered by a Right immediately prior to such
adjustment by (y) the Purchase Price in effect immediately
prior to such adjustment of the Purchase Price and
(ii) dividing the product so obtained by the Purchase Price
in effect immediately after such adjustment of the Purchase
Price.
(i) The Company may elect on or after the
date of any adjustment of the Purchase Price to adjust the
number of Rights, in substitution for any adjustment in the
number of one one-hundredths of a Preferred Share purchasable
upon the exercise of a Right. Each of the Rights outstanding
after such adjustment of the number of Rights shall be
exercisable for the number of one one-hundredths of a
Preferred Share for which a Right was exercisable immediately
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 Right Certificates have
been issued, shall be at least 10 days later than the date of
the public announcement. If Right Certificates have been
issued, upon each adjustment of the number of Rights pursuant
to this Section 11(i), the Company may, as promptly as
practicable, cause to be distributed to holders of record of
Right Certificates on such record date Right Certificates
evidencing, subject to Section 14 hereof, the additional
Rights to which such holders shall be entitled as a result of
such adjustment, or, at the option of the Company, shall
cause to be distributed to such holders of record in
substitution and replacement for the Right Certificates held
by such holders prior to the date of adjustment, and upon
surrender thereof, if required by the Company, new Right
Certificates evidencing all the Rights to which such holders
shall be entitled after such adjustment. Right Certificates
so to be distributed shall be issued, executed and
countersigned in the manner provided for herein and shall be
registered in the names of the holders of record of Right
Certificates on the record date specified in the public
announcement.
(j) Irrespective of any adjustment or change
in the Purchase Price or the number of one one-hundredths of
a Preferred Share issuable upon the exercise of the Rights,
the Right Certificates theretofore and thereafter issued may
continue to express the Purchase Price and the number of one
one-hundredths of a Preferred Share which were expressed in
the initial Right Certificates issued hereunder but they
shall be deemed to represent the Purchase Price and number of
one one-hundredths of a Preferred Share as adjusted from time
to time hereunder.
(k) Before taking any action that would cause
an adjustment reducing the Purchase Price below the then par
value, if any, of the Preferred Shares or other shares of
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 Preferred
Shares or other such shares at such adjusted Purchase Price.
(l) In any case in which this Section 11
shall require that an adjustment in the Purchase Price be
made effective as of a record date for a specified event, the
Company may elect to defer until the occurrence of such event
the issuing to the holder of any Right exercised after such
record date the Preferred Shares and other stock or
securities of the Company, if any, issuable upon such
exercise over and above the Preferred Shares and other stock
or securities of the Company, if any, issuable upon such
exercise on the basis of the Purchase Price in effect prior
to such adjustment; provided, however, that the Company shall
deliver to such holder a due bill or other appropriate
instrument evidencing such holder's right to receive such
additional shares upon the occurrence of the event requiring
such adjustment.
(m) Anything 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 it in its sole discretion shall
determine to be advisable in order that any consolidation or
subdivision of the Preferred Shares, issuance wholly for cash
of any Preferred Shares at less than the current market
price, issuance wholly for cash of Preferred Shares or
securities which by their terms are convertible into or
exchangeable for Preferred Shares, dividends on Preferred
Shares payable in Preferred Shares or issuance of rights,
options or warrants referred to hereinabove in Section 11(b),
hereafter made by the Company to holders of its Preferred
Shares shall not be taxable to such stockholders.
(n) Anything in this Agreement to the
contrary notwithstanding, in the event that at any time after
the date of this Agreement and prior to the Distribution
Date, the Company shall (i) declare or pay any dividend on
the Common Shares payable in Common Shares or (ii) effect a
subdivision, combination or consolidation of the Common
Shares (by reclassification or otherwise than by payment of
dividends in Common Shares) into a greater or lesser number
of Common Shares, then in any such case, the number of Rights
associated with each Common Share then outstanding or issued
or delivered thereafter shall be proportionately adjusted so
that the number of Rights thereafter associated with each
Common Share following any such event shall equal the result
obtained by multiplying the number of Rights associated with
each Common Share immediately prior to such event by a
fraction the numerator of which shall be the total number of
Common Shares outstanding immediately prior to the occurrence
of the event and the denominator of which shall be the total
number of Common Shares outstanding immediately following the
occurrence of such event.
(o) The Company agrees that, after the
earlier of the Distribution Date or the Shares Acquisition
Date, it will not, except as permitted by Sections 23, 24 or
27 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
eliminate the benefits intended to be afforded by the Rights.
<PAGE> 24
Section 12. Certificate of Adjusted Purchase Price
or Number of Shares. Whenever an adjustment is made as
provided in Section 11 or 13 hereof, the Company shall
promptly (a) prepare a certificate setting forth such
adjustment, and a brief statement of the facts accounting for
such adjustment, (b) file with the Rights Agent and with each
transfer agent for the Common Shares or the Preferred Shares
a copy of such certificates and (c) mail a brief summary
thereof to each holder of a Right Certificate 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 and shall not be deemed to have
knowledge of any such adjustment unless and until it shall
have received such certificate.
Section 13. Consolidation, Merger or Sale or
Transfer of Assets or Earning Power.
(a) In the event, directly or indirectly, at
any time after any Person has become an Acquiring Person,
(i) the Company shall merge with and into any other Person,
(ii) any Person shall consolidate with the Company, or any
Person shall merge with and into the Company and the Company
shall be the continuing or surviving corporation of such
merger and, in connection with such merger, all or part of
the Common Shares shall be changed into or exchanged for
stock or other securities of any other Person (or of the
Company) or cash or any other property, or (iii) the Company
shall sell or otherwise transfer (or one or more of its
Subsidiaries shall sell or otherwise transfer), in one or
more transactions, assets or earning power aggregating 50% or
more of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person (other
than the Company or one or more of its wholly-owned
Subsidiaries), then upon the first occurrence of such event,
proper provision shall be made so that: (A) each holder of
record of a Right (other than Rights which have become void
pursuant to Section 11(a)(ii)) shall thereafter have the
right to receive, upon the exercise thereof at a price equal
to the then current Purchase Price multiplied by the number
of one one-hundredths of a Preferred Share for which a Right
was exercisable immediately prior to the time that any Person
first became an Acquiring Person (as subsequently adjusted
thereafter pursuant to Sections 11(a)(i), 11(b), 11(c) and
11(i)), in accordance with the terms of this Agreement and in
lieu of Preferred Shares, such number of validly issued,
fully paid and non-assessable and freely tradeable Common
Shares of the Principal Party (as defined herein) 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 Preferred Share for which a Right
was exercisable immediately prior to the time that any Person
first became an Acquiring Person (as subsequently adjusted
thereafter pursuant to Sections 11(a)(i), 11(b), 11(c) and
11(i)) and (2) dividing that product by 50% of the then
current per share market price of the Common Shares of such
Principal Party (determined pursuant to Section 11(d)(i)
hereof) on the date of consummation of such consolidation,
merger, sale or transfer; provided that the Purchase Price
and the number of Common Shares of such Principal Party
issuable upon exercise of each Right shall be further
adjusted as provided in Section 11(f) of this Agreement to
reflect any events occurring in respect of such Principal
Party after the date of the such consolidation, merger, sale
or transfer; (B) such Principal Party shall thereafter be
liable for, and shall assume, by virtue of such
consolidation, merger, sale or transfer, all the obligations
and duties of the Company pursuant to this Agreement; (C) the
term "Company" shall thereafter be deemed to refer to such
Principal Party; and (D) such issuer shall take such steps
(including, but not limited to, the reservation of a
sufficient number of its Common Shares in accordance with
Section 9 hereof) in connection with such consummation of any
such transaction as may be necessary to assure that the
provisions hereof shall thereafter be applicable, as nearly
as reasonably may be, in relation to the Common Shares
thereafter deliverable upon the exercise of the Rights;
provided that, upon the subsequent occurrence of any
consolidation, merger, sale or transfer of assets or other
extraordinary transaction in respect of such Principal Party,
each holder of a Right shall thereupon be entitled to
receive, upon exercise of a Right and payment of the Purchase
Price as provided in this Section 13(a), such cash, shares,
rights, warrants and other property which such holder would
have been entitled to receive had such holder, at the time of
such transaction, owned the Common Shares of the Principal
Party purchasable upon the exercise of a Right pursuant to
this Section 13(a), and such Principal Party shall take such
steps (including, but not limited to, reservation of shares
of stock) as may be necessary to permit the subsequent
exercise of the Rights in accordance with the terms hereof
for such cash, shares, rights, warrants and other property.
(b) "Principal Party" shall mean
(i) in the case of any transaction
described in (i) or (ii) of the first sentence of Section
13(a) hereof: (A) the Person that is the issuer of the
securities into which Common Shares are converted in such
merger or consolidation, or, if there is more than one such
issuer, the issuer the Common Shares of which have the
greatest aggregate market value of shares outstanding or
(B) if no securities are so issued, (x) the Person that is
the other party to the merger, if such Person survives said
merger, or, if there is more than one such Person, the Person
the Common Shares of which have the greatest aggregate market
value of shares outstanding or (y) if the Person that is the
other party to the merger does not survive the merger, the
Person that does survive the merger (including the Company if
it survives) or (z) the Person resulting from the
consolidation; and
(ii) in the case of any transaction
described in (iii) of the first sentence in Section 13(a)
hereof, the Person that is the party receiving the greatest
portion of the assets or earning power transferred pursuant
to such transaction or transactions, or, if each Person that
is a party to such transaction or transactions receives the
same portion of the assets or earning power so transferred or
if the Person receiving the greatest portion of the assets or
earning power cannot be determined, whichever of such Persons
is the issuer of Common Shares having the greatest aggregate
market value of shares outstanding; provided, however, that
in any such case described in the foregoing clause (b)(i) or
(b)(ii), (1) if the Common Shares of such Person are not at
such time or have not been continuously over the preceding
12-month period registered under Section 12 of the Exchange
Act, and if such Person is a direct or indirect Subsidiary of
another Person the Common Shares of which are and have been
so registered, the term "Principal Party" shall refer to such
other Person, or (2) if such Person is a Subsidiary, directly
or indirectly, of more than one Person, the Common Shares of
all of which are and have been so registered, the term
"Principal Party" shall refer to whichever of such Persons is
the issuer of the Common Shares having the greatest aggregate
market value of shares outstanding, or (3) if such Person is
owned, directly or indirectly, by a joint venture formed by
two or more Persons that are not owned, directly or
indirectly, by the same Person, the rules set forth in
clauses (1) and (2) above shall apply to each of the owners
having an interest in the venture as if the Person owned by
the joint venture was a Subsidiary of both or all of such
joint venturers, and the Principal Party in each such case
shall bear the obligations set forth in this Section 13 in
the same ratio as its interest in such Person bears to the
total of such interests.
(c) The Company shall not consummate any
consolidation, merger, sale or transfer referred to in
Section 13(a) hereof unless prior thereto the Company and the
Principal Party involved therein shall have executed and
delivered to the Rights Agent an agreement confirming that
the requirements of Sections 13(a) and (b) hereof shall
promptly be performed in accordance with their terms and that
such consolidation, merger, sale or transfer of assets shall
not result in a default by the Principal Party under this
Agreement as the same shall have been assumed by the
Principal Party pursuant to Sections 13(a) and (b) hereof and
providing that, as soon as practicable after executing such
agreement pursuant to this Section 13, the Principal Party
will:
(i) prepare and file a registration
statement under the Securities Act, if necessary, with
respect to the Rights and the securities purchasable upon
exercise of the Rights on an appropriate form, use its best
efforts to cause such registration statement to become
effective as soon as practicable after such filing and use
its best efforts to cause such registration statement to
remain effective (with a prospectus at all times meeting the
requirements of the Securities Act) until the Expiration
Date, and similarly comply with applicable state securities
laws;
(ii) use its best efforts, if the Common
Shares of the Principal Party shall be listed or admitted to
trading on the NYSE or on any other national securities
exchange or are quoted on any automated quotation system, to
list or admit to trading (or continue the listing or trading
of) the Rights and the securities purchasable upon exercise
of the Rights on the NYSE or such other national securities
exchange or have the Rights or such securities quoted on such
automated quotation system and, if the Common Shares of the
Principal Party shall not be listed or admitted to trading on
NYSE or any other national securities exchange or quoted on
any automated quotation system, to cause the Rights and the
securities purchasable upon exercise of the Rights to be
listed or admitted to trading on a national securities
exchange or quoted in an automated quotation system then in
use;
(iii) deliver to holders of the Rights
historical financial statements for the Principal Party which
comply in all respects with the requirements for registration
on Form 10 (or any successor form) under the Exchange Act;
and
(iv) obtain waivers of any rights of
first refusal or preemptive rights in respect of the Common
Shares of the Principal Party subject to purchase upon
exercise of outstanding Rights.
(d) Furthermore, in case the Principal Party
which is to be a party to a transaction referred to in this
Section 13 has provision in any of its authorized securities
or in its certificate of incorporation or by-laws or other
instrument governing its corporate affairs, which provision
would have the effect of (i) causing such Principal Party to
issue (other than to holders of Rights pursuant to this
Section 13), in connection with or as a consequence of the
consummation of a transaction referred to in this Section 13,
Common Shares of such Principal Party at less than the then
current market price per share (determined pursuant to
Section 11(d) hereof) or securities exercisable for or
convertible into Common Shares of such Principal Party at
less than such then current market price, or (ii) providing
for any special payment, tax or similar provisions in
connection with the issuance of the Common Shares of such
Principal Party pursuant to the provisions of Section 13,
then, in such event, the Company hereby agrees with each
holder of Rights that it shall not consummate any such
transaction unless prior thereto the Company and such
Principal Party shall have executed and delivered to the
Rights Agent a supplemental agreement providing that the
provision in question of such Principal Party shall have been
cancelled, waived or amended, or that the authorized
securities shall be redeemed, so that the applicable
provision will have no effect in connection with, or as a
consequence of, the consummation of the proposed transaction.
(e) The Company covenants and agrees that it
shall not, at any time after a Person first becomes an
Acquiring Person, enter into any transaction of the type
contemplated by (i) through (iii) of Section 13(a) hereof if
(x) at the time of or immediately after such consolidation,
merger, sale, transfer or other transaction 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, (y) prior to, simultaneously with or
immediately after such consolidation, merger, sale, transfer
of other transaction, the stockholders of the Person who
constitutes or would constitute the "Principal Party" for
purposes of Section 13(a) hereof shall have received a
distribution of Rights previously owned by such Person or any
of its Affiliates or Associates or (z) the form or nature of
organization of the Principal Party would preclude or limit
the exercisability of the Rights.
<PAGE> 28
Section 14. Fractional Rights and Fractional
Shares.
(a) The Company shall not be required to
issue fractions of Rights or to distribute Right Certificates
which evidence fractional Rights. In lieu of such fractional
Rights, there shall be paid to the registered holders of the
Right Certificates with regard to which such fractional
Rights would otherwise be issuable, an amount in cash equal
to the same fraction of the current market value of a whole
Right. For the purposes of this Section 14(a), the current
market value of a whole Right shall be the closing price of
the Rights for the Trading Day immediately prior to the date
on which such fractional Rights would have been otherwise
issuable. The closing price for any day shall be the last
sale price, regular way, or, in case no such sale takes place
on such day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to
securities listed or admitted to trading on the NYSE or, if
the Rights are not listed or admitted to trading on the NYSE,
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 sale price or, if not so quoted,
the average of the closing bid and 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 current market
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 Preferred Shares (other than fractions
which are integral multiples of one one-hundredth of a
Preferred Share) upon exercise of the Rights or to distribute
certificates which evidence fractional Preferred Shares
(other than fractions which are integral multiples of one
one-hundredth of a Preferred Share). Interests in fractions
of Preferred Shares in integral multiples of one one-
hundredth of a Preferred Share may, at the election of the
Company, be evidenced by depositary receipts, pursuant to an
appropriate agreement between the Company and a depositary
selected by it; provided, that such agreement shall provide
that the holders of such depositary receipts shall have all
the rights, privileges and preferences to which they are
entitled as beneficial owners of the Preferred Shares
represented by such depositary receipts. In lieu of
fractional Preferred Shares that are not integral multiples
of one one-hundredth of a Preferred Share, the Company shall
pay to the registered holders of Right Certificates at the
time such Rights are exercised as herein provided an amount
in cash equal to the same fraction of the current market
value of one Preferred Share. For the purposes of this
Section 14(b), the current market value of a Preferred Share
shall be the closing price of a Preferred Share (as
determined pursuant to Section 11(d)(i) hereof) for the
Trading Day immediately prior to the date of such exercise.
(c) The holder of a Right by the acceptance
of the Right expressly waives the holder's right to receive
any fractional Rights or any fractional shares upon exercise
of a Right (except as provided above).
<PAGE> 30
Section 15. Rights of Action. All rights of
action in respect of this Agreement, excepting the rights of
action given to the Rights Agent under Section 18 hereof, are
vested in the respective registered holders of the Right
Certificates (and, prior to the Distribution Date, the
registered holders of the Common Shares); and any registered
holder of any Right Certificate (or, prior to the
Distribution Date, of the Common Shares), without the consent
of the Rights Agent or of the holder of any other Right
Certificate (or, prior to the Distribution Date, of the
Common Shares), on such holder's own behalf and for such
holder's own benefit, may enforce, and may institute and
maintain any suit, action or proceeding against the Company
to enforce, or otherwise act in respect of, such holder's
right to exercise the Rights evidenced by such Right
Certificate in the manner provided in such Right Certificate
and in this Agreement. Without limiting the foregoing or any
remedies available to the holders of rights, it is
specifically acknowledged that the holders of Rights would
not have an adequate remedy at law for any breach of this
Agreement and will be entitled to specific performance of the
obligations under, and injunctive relief against actual or
threatened violations of, the obligations of any Person
subject to this Agreement.
Section 16. Agreement of Right 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
the Common Shares;
(b) after the Distribution Date, the Right
Certificates are transferable only on the registry books of
the Rights Agent if surrendered at the office or agency of
the Rights Agent designated for such purpose, duly endorsed
or accompanied by a proper instrument of transfer; and
(c) the Company and the Rights Agent may deem and
treat the Person in whose name the Right Certificate (or,
prior to the Distribution Date, the associated Common Shares
certificate) is registered as the absolute owner thereof and
of the Rights evidenced thereby (notwithstanding any
notations of ownership or writing on the Right Certificates
or the associated Common Shares certificate made by anyone
other than the Company or the Rights Agent) for all purposes
whatsoever, and neither the Company nor the Rights Agent
shall be affected by any notice to the contrary.
<PAGE> 31
Section 17. Right Certificate Holder Not Deemed a
Stockholder. No holder, as such, of any Right Certificate
shall be entitled to vote, receive dividends or be deemed for
any purpose the holder of the Preferred Shares 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 Right Certificate be
construed to confer upon the holder of any Right 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 this Agreement), or to
receive dividends or other distributions, or otherwise, until
the Rights evidenced by such Right 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 other disbursements
incurred in the administration and execution of this
Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights
Agent for, and to hold it harmless against, any loss,
liability or expense, incurred without gross negligence, bad
faith or willful misconduct on the part of the Rights Agent,
for anything done or omitted 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 arising therefrom, directly or
indirectly.
(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 Right
Certificate or certificate for the Preferred Shares or Common
Shares 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 documents believed by it to be
genuine and to be signed, executed and, where necessary,
verified or acknowledged, by the proper Person or Persons, or
otherwise upon the advice of counsel as set forth in
Section 20 hereof.
<PAGE> 32
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 stock transfer or
corporate trust powers of the Rights Agent or any
successor Rights Agent, shall be the successor to the
Rights Agent under this Agreement without the execution
or filing of any paper or any further act on the part of
any of the parties hereto; provided, that such
corporation would be eligible for appointment as a
successor Rights Agent under the provisions of
Section 21 hereof. In case at the time such successor
Rights Agent shall succeed to the agency created by this
Agreement any of the Right Certificates shall have been
countersigned but not delivered, any such successor
Rights Agent may adopt the countersignature of the
predecessor Rights Agent and deliver such Right
Certificates so countersigned; and in case at that time
any of the Right Certificates shall not have been
countersigned any successor Rights Agent may countersign
such Right Certificates either in the name of the
predecessor Rights Agent or in the name of the successor
Rights Agent; and in all such cases such Right
Certificates shall have the full force provided in the
Right Certificates and in this Agreement.
(b) In case at any time the name of the Rights
Agent shall be changed and at such time any of the Right
Certificates shall have been countersigned but not
delivered the Rights Agent may adopt the
countersignature under its prior name and deliver Right
Certificates so countersigned; and in case at that time
any of the Right Certificates shall not have been
countersigned, the Rights Agent may countersign such
Right Certificates either in its prior name or in its
changed name and in all such cases such Right
Certificates shall have the full force provided in the
Right Certificates and in this Agreement.
<PAGE> 33
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 Right Certificates, by
their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal
counsel (who may be legal counsel for the 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 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 any one of the Chairman of the Board of
Directors, the Chief Executive Officer, the President or
any Senior Vice President 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 to
the Company and any other Person only for its own gross
negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by
reason of any of the statements of fact or recitals
contained in this Agreement or in the Right Certificates
(except its countersignature thereof) or be required to
verify the same, but all such statements and recitals
are and shall be deemed to have been made by the Company
only.
(e) The Rights Agent shall not be under any
responsibility in respect of the validity of this
Agreement or the execution and delivery hereof (except
the due execution hereof by the Rights Agent) or in
respect of the validity or execution of any Right
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 Right Certificate; nor shall it be responsible
for any change in the exercisability of the Rights
(including the Rights becoming void pursuant to Section
11(a)(ii) hereof) or any adjustment in the terms of the
Rights (including the manner, method or amount thereof)
provided for in Sections 3, 11, 13, 23 and 21, or the
ascertaining of the existence of facts that would
require any such change or adjustment (except with
respect to the exercise of Rights evidenced by Right
Certificates after receipt of a certificate furnished
pursuant to Section 12, describing such change or
adjustment); nor shall it by any act hereunder be deemed
to make any representation or warranty as to the
authorization or reservation of any Preferred Shares to
be issued pursuant to this Agreement or any Right
Certificate or as to whether any Preferred Shares will,
when 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
reasonably be required by the Rights Agent for the
carrying out or performing by the Rights Agent of the
provisions of this Agreement.
(g) The Rights Agent is hereby authorized and
directed to accept instructions with respect to the
performance of its duties hereunder from any person
reasonably believed by the Rights Agent to be one of the
Chairman of the Board of Directors, the Chief Executive
Officer, the President or any Senior Vice President 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 by it in
good faith in accordance with instructions of any such
officer or for any delay in acting while waiting for
those instructions. Any application by the Rights Agent
for written instructions from the Company may, at the
option of the Rights Agent, set forth in writing any
action proposed to be taken or omitted by the Rights
Agent under this Agreement and the date on and/or after
which such action shall be taken or such omission shall
be effective. The Rights Agent shall not be liable for
any action taken by, or omission of, the Rights Agent in
accordance with a proposal included in any such
application on or after the date specified in such
application (which date shall not be less than five
Business Days after the date any officer of the Company
actually receives such application, unless any such
officer shall have consented in writing to an earlier
date) unless, prior to taking any such action (or the
effective date in the case of an omission), the Rights
Agent shall have received written instructions in
response to such application specifying the action to be
taken or omitted.
(h) The Rights Agent and any stockholder,
director, officer or employee of the Rights Agent may
buy, sell or deal in any of the Rights or other
securities of the Company or became 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 the 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 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 not been completed, the Rights Agent shall
not take any further action with respect to such
requested exercise of transfer without first consulting
with the Company,
<PAGE> 35
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 30 days'
notice in writing mailed to the Company and to each transfer
agent of the Common Shares or Preferred Shares by registered
or certified mail, and to the holders of the Right
Certificates by first-class mail. The Company may remove the
Rights Agent or any successor Rights Agent upon 60 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 Shares and Preferred Shares by registered or
certified mail, and to holders of the Right Certificates by
first-class mail. If the Rights Agent shall resign or be
removed or shall otherwise become incapable of acting, the
Company shall appoint a successor to the Rights Agent. If
the Company shall fail to make such appointment within a
period of 30 days after giving notice of such removal or
after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or
by the holder of a Right Certificate (who shall, with such
notice, submit such holder's Right Certificate for inspection
by the Company), then the registered holder of any Right
Certificate may apply to any court of competent jurisdiction
for the appointment of a new Rights Agent. Any successor
Rights Agent, whether appointed by the Company or by such a
court, shall be a corporation organized and doing business
under the laws of the United States or any state of the
United States, in good standing, having an office in the City
of New York, which is authorized under such laws to exercise
corporate trust or stock transfer powers and is subject to
supervision or examination by federal or state authority and
which has at the time of its appointment as Rights Agent a
combined capital and surplus of at least $100 million. 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 Shares or Preferred Shares, and mail a notice
thereof in writing to the registered holders of the Right
Certificates. Failure to give any notice provided for in
this Section 21, however, or any defect therein, shall not
affect the legality or validity of the resignation or removal
of the Rights Agent or the appointment of a successor Rights
Agent, as the case may be.
<PAGE> 36
Section 22. Issuance of New Right Certificates.
Notwithstanding any of the provisions of this Agreement or of
the Rights to the contrary, the Company may, at its option,
issue new Right Certificates evidencing Rights in such form
as may be approved by its Board of Directors to reflect any
adjustment or change in the Purchase Price and the number or
kind or class of shares or other securities or property
repurchasable under the Right Certificates made in accordance
with the provisions of this Agreement. In addition, in
connection with the issuance or sale of Common Shares
following the Distribution Date and prior to the earlier of
the Redemption Date and the Expiration Date, the Company may
with respect to Common Shares so issued or sold pursuant to
(i) the exercise of stock options, (ii) any employee plan or
arrangement, (iii) the exercise, conversion or exchange of
notes, debentures or other securities issued by the Company
or (iv) any other contractual obligation of the Company, in
each case existing prior to the Distribution Date, issue
Right Certificates representing the appropriate number of
Rights in connection with such issuance or sale.
<PAGE> 37
Section 23. Redemption. (a) The Board of
Directors of the Company may, at any time prior to the close
of business on the Shares Acquisition Date, redeem all but
not less than all the then outstanding Rights at a redemption
price of $.01 per Right, appropriately adjusted to reflect
any stock split, stock dividend or similar transaction
occurring after the date hereof (the redemption price being
hereinafter referred to as the "Redemption Price"). The
redemption of the Rights may be made effective at such time,
on such basis and with such conditions as the Board of
Directors in its sole discretion may establish.
(b) Immediately upon the action of the Board
of Directors ordering the redemption of the Rights pursuant
to paragraph (a) of this Section 23 (or at such later time as
the Board of Directors may establish for the effectiveness of
such redemption), 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. The Company shall
promptly give public notice of any such redemption; provided,
however, that the failure to give, or any defect in, any such
notice shall not affect the validity of such redemption.
Within 10 days after such action of the Board of Directors
ordering the redemption of the Rights, the Company shall mail
a notice of redemption to all the holders of the then
outstanding Rights at their last addresses as they appear
upon the registry books of the Rights Agent or, prior to the
Distribution Date, on the registry books of the transfer
agent for the Common Shares. 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 shall state the method by which the payment of the
Redemption Price will be made.
Section 24. Exchange. (a) The Board of Directors
of the Company may, at its option, at any time after the
close of business on the Shares Acquisition Date, exchange
all or part of the then outstanding and exercisable Rights
(which shall not include Rights that have become void
pursuant to the provisions of Section 11(a)(ii) 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"). Notwithstanding the
foregoing, the Board of Directors shall not be empowered to
effect such exchange at any time after any Person (other than
an Exempt Person), together with all Affiliates and
Associates of such Person, becomes the Beneficial Owner of
Common Shares aggregating 50% or more of the Common Shares
then outstanding.
(b) Immediately upon the action of the Board
of Directors of the Company ordering the exchange of any
Rights pursuant to paragraph (a) of this Section 24 and
without any further action and without any notice, the right
to exercise such Rights shall terminate and the only right
thereafter of a holder of such Rights shall be to receive
that number of 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 shall promptly mail a notice
of any such exchange to all of the holders of the Rights so
exchanged 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 11(a)(ii) hereof) held by each
holder of Rights.
(c) In the event that there shall not be
sufficient shares of Common Stock issued but not outstanding
or authorized but unissued to permit any exchange of Rights
as contemplated in accordance with this Section 24, the
Company may, in its discretion, take such action as may be
necessary to authorize additional shares of Common Stock for
issuance upon exchange of the Rights. In the event that the
Company shall determine not to take such action or shall,
after good faith effort, be unable to take such action as may
be necessary to authorize such additional shares of Common
Stock, the Company shall substitute, to the extent of such
insufficiency, for each share of Common Stock that would
otherwise be issuable upon exchange of a Right, a number of
Preferred Shares or fractions thereof (or equivalent
preferred shares as such term in defined in Section 11(b)),
having an aggregate value equal to the current per share
market price of one share of Common Stock (determined
pursuant to Section 11(d) hereof) as of the date of issuance
of such Preferred Shares or fractions thereof (or equivalent
preferred shares).
(d) The Company shall not, in connection with
any exchange pursuant to this Section 24, 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 the Right
Certificates 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 current market value of a
whole share of Common Stock. For the purposes of this
paragraph (d), the current market value of a whole share of
Common Stock shall be the closing price of a share of Common
Stock (as determined pursuant to the second sentence of
Section 11(d)(i) hereof) for the Trading Day immediately
prior to the date of exchange pursuant to this Section 24.
<PAGE> 39
Section 25. Notice of Certain Events. (a) In case
the Company shall at any time after the earlier of the
Distribution Date or the Shares Acquisition Date propose (i)
to pay any dividend payable in stock of any class to the
holders of its Preferred Shares or to make any other
distribution to the holders of its Preferred Shares (other
than a regular quarterly cash dividend) (ii) to offer to the
holders of its Preferred Shares rights or warrants to
subscribe for or the purchase any additional Preferred Shares
or shares of stock of any class or any other securities,
rights or options, (iii) to effect any reclassification of
its Preferred Shares (other than a reclassification involving
only the subdivision of outstanding Preferred Shares),
(iv) to effect the liquidation, dissolution or winding up of
the Company, or (v) to declare or pay any dividend on the
Common Shares payable in Common Shares or to effect a
subdivision, combination or consolidation of the Common
Shares (by reclassification or otherwise than by payment of
dividends in Common Shares), then, in each such case, the
Company shall give to each holder of a Right Certificate, in
accordance with Section 26 hereof, a notice of such proposed
action, which shall specify the record date for the purposes
of such stock dividend, or distribution of rights or
warrants, or the date on which such liquidation, dissolution
or winding up is to take place and the date of participation
therein by the holders of the Common Shares and/or Preferred
Shares, if any such date is to be fixed, and such notice
shall be so given in the case of any action covered by clause
(i) or (ii) above at least 10 days prior to the record date
for determining holders of the Preferred Shares for purposes
of such action, and in the case of any such other action, at
least 10 days prior to the date of the taking of such
proposed action or the date of participating therein by the
holders of the Common Shares and/or Preferred Shares,
whichever shall be earlier.
(b) In case any event described in Section
11(a)(ii) or Section 13 shall occur then the Company shall as
soon as practicable thereafter give to each holder of a Right
Certificate (or if occurring prior to the Distribution Date,
the holders of Common Shares), in accordance with Section 26
hereof, a notice of the occurrence of such event, which
notice shall describe such event, and the consequences of
such event to holders of Rights under Section 11(a)(ii) and
Section 13 hereof.
<PAGE> 40
Section 26. Notices. Notices or demands
authorized by this Agreement to be given or made by the
Rights Agent or by the holder of any Right Certificate (or,
prior to the Distribution Date, of Common Shares) 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:
The Harper Group, Inc.
260 Townsend Street
San Francisco, CA 94107
Attention: Secretary
Subject to the provisions of Section 21 hereof, any notice or
demand authorized by this Agreement to be given or made by
the Company or by the holder of any Right Certificate (or,
prior to the Distribution Date, any Common Shares) to or on
the Rights Agent shall be sufficiently given or made it sent
by first-class mail, postage prepaid, addressed (until
another address is filed in writing with the Company) as
follows:
Chemical Trust Company of California
50 California Street, 10th Floor
San Francisco, California 94111
Attention: Stock Transfer 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 right Certificate (or, prior to the Distribution Date,
any Common Shares) shall be sufficiently given or made if
sent by first-class mail, postage prepaid, addressed to such
holder at the address of such holder as shown on the registry
books of the Rights Agent (or, prior to the Distribution
Date, on the registry books of the transfer agent for the
Common Shares).
<PAGE> 41
Section 27. Supplements and Amendments. Except as
provided in the penultimate sentence of this Section 27, for
so long as the Rights are then redeemable, the Company may in
its sole and absolute discretion, and the Rights Agent shall
if the Company so directs, supplement or amend any provision
of this Agreement in any respect without the approval of any
holders of the Rights. At any time when the Rights are no
longer redeemable, except as provided in the penultimate
sentence of this Section 27, the Company may, and the rights
Agent shall, if the Company so directs, supplement or amend
this Agreement without the approval of any holders of Right
Certificates in order to (i) cure any ambiguity, (ii) correct
or supplement any provision contained herein which may be
defective or inconsistent with any other provisions herein,
(iii) shorten or lengthen any time period hereunder, or
(iv) change or supplement the provisions hereunder in any
manner which the Company may deem necessary or desirable;
provided that no such supplement or amendment shall adversely
affect the interests of the holders of Rights as such (other
than an Acquiring Person or an Affiliate or Associate of an
Acquiring Person), and no such amendment may cause the Rights
again to become redeemable or cause the Agreement again to
become amendable other than in accordance with this sentence.
Notwithstanding anything contained in this Agreement to the
contrary, no supplement or amendment shall be made which
changes the Redemption Price or provides for an earlier Final
Expiration Date. Upon the delivery of a certificate from an
appropriate officer of the Company which states that the
proposed supplement or amendment is in compliance with the
terms of this Section 27, the Rights Agent shall execute such
supplement or amendment, provided that any supplement or
amendment to this Agreement duly approved by the Company that
does not amend any provision of this Agreement in a manner
adverse to the Rights Agent shall become effective
immediately upon execution by the Company, whether or not
also executed by the Rights Agent.
Section 28. 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 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 Right Certificates (and, prior to the
Distribution Date, the Common Shares) any legal or equitable
right, remedy or claim under this Agreement; but this
Agreement shall be for the sole and exclusive benefit of the
Company, the Rights Agent and the registered holders of the
Right Certificates (and prior to the Distribution Date, the
Common Shares).
<PAGE> 42
Section 30. Severability. If any term, provision,
covenant or restriction of this Agreement or applicable to
this Agreement is held by a court of competent jurisdiction
or other authority to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or
invalidated.
Section 31. Governing Law. This Agreement and
each Right Certificate issued hereunder shall be deemed to be
a contract made under the laws of the State of Delaware and
for all purposes shall be governed by and construed in
accordance with the laws of such State applicable to
contracts to be made and 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 attested, all as of
the day and year first above written.
Attest:
By
Name:
Title: THE HARPER GROUP, INC.
By
Name:
Title:
Attest:
By
Name:
Title: CHEMICAL TRUST COMPANY OF CALIFORNIA
By
<PAGE> 43
Name:
Title: EXHIBIT A
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
OF
THE HARPER GROUP, INC.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
We, Peter Gibert, Chairman and Chief Executive
Officer, and Robert H. Kennis, Secretary, of The Harper
Group, Inc., 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 of the
Company, the Board of Directors on October 24, 1994, adopted
the following resolution creating a series of 250,000 shares
of Preferred Stock designated as Series A Junior
Participating Preferred Stock:
RESOLVED, that pursuant to the authority
vested in the Board of Directors of this
Company in accordance with the provisions of
its Certificate of Incorporation, a series of
Preferred Stock of the Company be and it
hereby is created, and that the designation
and amount thereof and the 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:
1. Designation and Amount. The shares of such
series shall be designated as "Series A Junior Participating
Preferred Stock," $1.00 par value per share, and the number
of shares constituting such series shall be 250,000. Such
number of shares may be increased or decreased by resolution
of the Board of Directors; provided, that no decrease shall
reduce the number of shares of Series A Junior Participating
Preferred Stock to a number less than that of the shares then
outstanding plus the number of shares issuable upon exercise
of outstanding rights, options or warrants or upon conversion
of outstanding securities issued by the Company.
2. Dividends and Distributions.
(A) Subject to the prior and superior rights
of the holders of any shares of any series of Preferred Stock
ranking prior and superior to the shares of Series A Junior
Participating Preferred Stock with respect to dividends, the
holders of shares of Series A Junior Participating Preferred
Stock in preference to the holders of shares of Common Stock,
par value $1.00 per share (the "Common Stock"), of the
Company and any other junior stock, shall be entitled to
receive, when, as and if declared by the Board of Directors
out of funds legally available for the purpose, quarterly
dividends payable in cash on the first day of March, June,
September and December 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 fraction of a share of
Series A Junior Participating Preferred Stock in an amount
per share (rounded to the nearest cent) equal to, subject to
the provision 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,
since the immediately preceding Quarterly Dividend Payment
Date, or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or
fraction of a share of Series A Junior Participating
Preferred Stock. In the event the Company shall at any time
after the close of business on October 24, 1994 (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, by
reclassification or otherwise, then in each such case the
amount to which holders of shares were entitled immediately
prior to such event under 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 outstanding
immediately prior to such event.
(B) The Company 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).
(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.
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 Company. In the event the Company
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
into a greater number of shares, or (iii) combine the
outstanding Common Stock into a smaller number of shares, by
reclassification or otherwise, 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 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 Company.
(C) 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.
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 Company 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 Company may
at any time redeem, purchase or otherwise acquire shares of
any such parity stock in exchange for shares of any stock of
the Company ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A
Junior Participating Preferred Stock; or
(iv) purchase or otherwise acquire for
consideration any shares of 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 Company shall not permit any
subsidiary of the Company to purchase or otherwise acquire
for consideration any shares of stock of the Company unless
the Company could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in
such manner.
5. Reacquired Shares. Any shares of Series A
Junior Participating Preferred Stock purchased or otherwise
acquired by the Company 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.
6. Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation (voluntary or
otherwise), dissolution or winding up of the Company, 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 Participating
Preferred Stock unless, prior thereto, the holders of shares
of Series A Participating Preferred Stock shall have received
per share 100 times the payment made per share of Common
Stock, 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), the
"Adjustment Number"). Following the payment of the full
amount of the Series A Liquidation Preference and the Common
Adjustment in respect of all outstanding shares of Series A
Junior Participating Preferred Stock and Common Stock,
respectively, holders of Series A Junior Participating
Preferred Stock and holders of shares of Common Stock shall
receive their ratable and proportionate share of the
remaining assets to be distributed in the ratio of the
Adjustment Number to 1 with respect to such Preferred Stock
and Common Stock, on a per share basis, respectively.
(B) In the event there are not sufficient
assets available to permit payment in full of the Series A
Liquidation Preference and the liquidation preferences of all
other series of Preferred Stock, if any, which rank on a
parity with the Series A Junior Participating Preferred
Stock, then such remaining assets shall be distributed
ratably to the holders of such parity shares in proportion to
their respective liquidation preferences. In the event there
are not sufficient assets available to permit payment in full
of the Common Adjustment, then such remaining assets shall be
distributed ratably to the holders of Common Stock.
(C) In the event the Company 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,
by reclassification or otherwise, 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.
7. Consolidation, Merger, etc. In case the
Company 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 Company shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding
Common Stock into a smaller number of shares, then in each
such case the amount set forth in the preceding sentence with
respect to the exchange or change of shares of Series A
Junior Participating Preferred Stock shall be adjusted by
multiplying such amount by a fraction the numerator of which
is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is
the number of shares of Common Stock that are outstanding
immediately prior to such event.
8. Redemption. The shares of Series A Junior
Participating Preferred Stock shall not be redeemable.
9. Ranking. The Series A Junior Participating
Preferred Stock shall rank junior to all other series of the
Company's Preferred Stock as to the payment of dividends and
the distribution of assets, unless the terms of any such
series shall provide otherwise.
10. Amendment. The Certificate of Incorporation
and the By-Laws of the Company shall not be further amended
in any manner which would materially alter or change the
powers, preferences or special rights of the Series A Junior
Participating Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of at least 66-
2/3% of the outstanding shares of Series A Junior
Participating Preferred Stock voting separately as a class.
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.
RESOLVED FURTHER that the proper officers of the
Corporation be, and each of them hereby is, authorized to
execute a Certificate of Designation with respect to the
Series A Participating Preferred Stock pursuant to
Section 151 of the General Corporation Law of the State of
Delaware and to take all appropriate action to cause such
Certificate to become effective, including, but not limited to, the filing
and recording of such Certificate with and/or by the Secretary of State of
the State of Delaware.
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 October, 1994.
Peter Gibert, Chairman and
Chief Executive Officer
Attest:
_____________________________
Robert H. Kennis, Secretary
EXHIBIT B
Form of Right Certificate
Certificate No. R- ______ Rights
NOT EXERCISABLE AFTER OCTOBER 24, 2004 OR EARLIER
IF REDEMPTION OCCURS. THE RIGHTS ARE SUBJECT TO
REDEMPTION AT $.01 PER RIGHT ON THE TERMS SET FORTH
IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES (SPECIFIED IN SECTION 11(a)(ii) OF
THE RIGHTS AGREEMENT), RIGHTS BENEFICIALLY OWNED BY
ACQUIRING PERSONS OR ANY SUBSEQUENT HOLDER OF SUCH
RIGHTS MAY BECOME NULL AND VOID.
Right Certificate
THE HARPER GROUP, INC.
This certifies that ______________________________
_______________________________________________ or registered
assigns, is the registered owner of the number of Rights set
forth above, each of which entitles the owner thereof,
subject to the terms, provisions and conditions of the Rights
Agreement, dated as of October 24, 1994 (the "Rights
Agreement"), between The Harper Group, Inc., a Delaware
corporation (the "Company"), and Chemical Trust Company of
California (the "Rights Agent"), to purchase from the Company
at any time after the Distribution Date (as such term is
defined in the Rights Agreement) and prior to 5:00 P.M., San
Francisco time, on October 24, 2004 at the principal offices
of the Rights Agent, or at the office of its successor as
Rights Agent, one one-hundredth of a fully paid
non-assessable share of Series A Junior Participating
Preferred Stock, $1.00 par value (the "Preferred Shares"), of
the Company, at a purchase price of $53.00 per one one-
hundredth of a Preferred Share (the "Purchase Price"), upon
presentation and surrender of this Right Certificate with the
Form of Election to Purchase duly executed. The number of
Rights evidenced by this Right Certificate (and the number of
one one-hundredths of a Preferred Share which may be
purchased upon exercise hereof) set forth above, and the
Purchase Price set forth above, are the number and Purchase
Price as of October 24, 1994, based on the Preferred Shares
as constituted at such date.
As provided in the Rights Agreement, the Purchase
Price and the number of one one-hundredths of a Preferred
Share which may be purchased upon the exercise of the Rights
evidenced by this Right Certificate are subject to
modification and adjustment upon the happening of certain
events.
This Right Certificate is subject to all of the
terms, provisions and conditions of the Rights Agreement,
which terms, provisions and conditions are hereby
incorporated herein by reference and made a part hereof and
to which Rights Agreement reference is hereby made for a full
description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Rights
Agent, the Company and the holders of the Right Certificates.
Copies of the Rights Agreement are on file at the principal
executive offices of the Company and the above-mentioned
offices of the Rights Agent.
This Right Certificate with or without other Right
Certificates, upon surrender at the principal offices of the
Rights Agent or at its office in New York City, New York, may
be exchanged for another Right Certificate or Right
Certificates of like tenor and date evidencing Rights
entitling the holder to purchase a like aggregate number of
Preferred Shares as the Rights evidenced by the Right
Certificate or Right Certificates surrendered shall have
entitled such holder to purchase. If this Right Certificate
shall be exercised in part, the holder shall be entitled to
receive upon surrender hereof another Right Certificate or
Right Certificates for the number of whole Rights not
exercised.
Subject to the provisions of the Rights Agreement,
the Rights evidenced by this Certificate may, but are not
required to, be redeemed by the Company at a redemption price
of $.01 per Right, or may be exchanged in whole or in part
for Preferred Shares or shares of the Company's Common Stock,
par value $1.00 per share.
No fractional Preferred Shares 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 Preferred Share, 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 Right Certificate shall be
entitled to vote or receive dividends or be deemed for any
purpose the holder of the Preferred Shares or of any other
securities of the Company which may at any time be issuable
on the exercise hereof, nor shall anything contained in the
Rights Agreement or herein be construed to confer upon the
holder hereof, as such, any of the rights of a stockholder of
the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other
actions affecting stockholders (except as provided in the
Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by
this Right Certificate shall have been exercised as provided
in the Rights Agreement.
This Right 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
Secretary
Countersigned:
CHEMICAL TRUST COMPANY OF
CALIFORNIA, as Rights Agent
By
Authorized Signature THE HARPER GROUP, INC.
By
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder
desires to transfer the Right Certificate.)
FOR VALUE RECEIVED
hereby sells, assigns and transfers unto
(Please print name and address of transferee)
this Right Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and
appoint __________________ Attorney, to transfer the within
Right Certificate on the books of the within-named Company,
with full power of substitution.
Dated: ________________, 19__
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Right Certificate in every
particular, without alteration
or enlargement or any change
whatsoever)
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a
registered national securities exchange, a member of the
National Association of Securities Dealers, Inc., or a
commercial bank or trust company having an office or
correspondent in the United States.
- -------------------------------------------------------------
The undersigned hereby certifies that the Rights evidenced by
this Right Certificate are not beneficially owned by an
Acquiring Person or an Affiliate or Associate thereof (as
defined in the Rights Agreement).
Signature
- -------------------------------------------------------------
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Right Certificate.)
To THE HARPER GROUP, INC.
The undersigned hereby irrevocably elects to
exercise Rights represented by this Right Certificate to
purchase the Preferred Shares issuable upon the exercise of
such Rights and requests that certificates for such Preferred
Shares be issued in the name of:
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 Right Certificate, a new Right Certificate
for the balance remaining 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 must conform in all
respects to name of holder as
specified on the face of this
Right Certificate in every
particular, without alteration
or enlargement or any change
whatsoever)
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a
registered national securities exchange, a member of the
National Association of Securities Dealers, Inc., or a
commercial bank or trust company having an office or
correspondent in the United States.
- ------------------------------------------------------------
(To be completed)
The undersigned hereby certifies that the Rights evidenced by
this Right Certificate are not beneficially owned by an
Acquiring Person or an Affiliate or Associate thereof (as
defined in the Rights Agreement).
Signature
- ------------------------------------------------------------
NOTICE
The signatures in the foregoing Forms of Assignment
and Election must correspond to the name as written upon the
face of this Right Certificate in every particular, without
alteration or enlargement or any change whatsoever.
In the event the certification set forth above in
the Form of Assignment or Form of Election to Purchase, as
the case may be, is not completed, the Company and the Rights
Agent will deem the beneficial owner of the Rights evidenced
by this Right Certificate to be an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights
Agreement) and such Assignment or Election to Purchase will
not be honored.
EXHIBIT C
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED SHARES
On October 24, 1994, the Board of Directors of The
Harper Group, Inc., (the "Company") declared a dividend of
one preferred share purchase right (a "Right") for each
outstanding share of common stock, par value $1.00 per share,
of the Company (the "Common Shares"). The dividend is
payable on November 7, 1994 (the "Record Date") to the
stockholders of record on that date. Each Right entitles the
registered holder to purchase from the Company one one-
hundredth of a share of Series A Junior Participating
Preferred Stock, par value $1.00 per share (the "Series A
Preferred Shares") of the Company at a price of $53.00 per
one one-hundredth of a Preferred Share (the "Purchase
Price"), subject to adjustment. The description and terms of
the Rights are set forth in a Rights Agreement, dated as of
October 24, 1994 (the "Rights Agreement") between the Company
and Chemical Trust Company of California, as Rights Agent
(the "Rights Agent").
Until the earlier to occur of (i) a public
announcement by the Company that (a) a person or group of
affiliated or associated persons have acquired beneficial
ownership of 20% or more of the outstanding Common Shares or
(b) a person or group of affiliated or associated persons has
been determined to be an Adverse Person (as defined below)
(in either case, an "Acquiring Person") or (ii) ten business
days (or such later date as may be determined by action of
the Board of Directors prior to such time as any person or
group of affiliated or associated persons becomes an
Acquiring Person) following the commencement of, or
announcement of an intention to make, a tender offer or
exchange offer the consummation of which would result in the
beneficial ownership by a person or group of 20% or more of
the outstanding Common Shares (the earlier of the dates
referred to in clause (i) and (ii) being called the
"Distribution Date"), the Rights will be evidenced with
respect to any of the Common Share certificates outstanding
as of the Record Date, by such Common Share certificate
together with a copy of this Summary of Rights.
As set forth in the Rights Agreement, an "Adverse
Person" means any person declared to be an Adverse Person by
the Board of Directors of the Company upon a determination
that such Person, alone or together with such person's
affiliates and associates, has become the beneficial owner of
a number of Common Shares that the Board of Directors
determines to be substantial (which amount shall in no event
be less than 10% of the Common Shares then outstanding) and a
determination by the Board of Directors after reasonable
inquiry and investigation, including consultation with such
Persons as the Board of Directors shall deem appropriate,
that (i) such beneficial ownership by such person is intended
to cause the Company to repurchase the Common Shares
beneficially owned by such Person or to cause pressure on the
Company to take action or enter into a transaction or series
of transactions intended to provide such Person with short-
term financial gain under circumstances where the Board of
Directors determines that the best long-term interest of the
Company, its subsidiaries and its stockholders would not be
served by taking such action or entering into such
transaction or series of transactions at that time or (ii)
such beneficial ownership is causing or reasonably likely to
cause a material adverse impact on the business or prospects
of the Company, its subsidiaries and its stockholders.
The Rights Agreement provides that, until the
Distribution Date (or earlier redemption or expiration of the
Rights), the Rights will be transferred with and only with
the Common Shares. Until the Distribution Date (or earlier
redemption or expiration of the Rights), new Common Share
certificates issued after the Record Date upon transfer or
new issuances of Common Shares will contain a notation
incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption or expiration of the
Rights), the surrender for transfer of any certificates for
Common Shares outstanding as of the Record Date, even without
such notation or a copy of this Summary of Rights, will also
constitute the transfer of the Rights associated with the
Common Shares represented by such certificate. As soon as
practicable following the Distribution Date, separate
certificates evidencing the Rights ("Right Certificates")
will be mailed to holders of record of the Common Shares as
of the close of business on the Distribution Date and such
separate Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the
Distribution Date. The Rights will expire on October 24,
2004 (the "Final Expiration Date"), unless the Final
Expiration Date is extended or unless the Rights are earlier
redeemed or exchanged by the Company, in each case as
described below.
The Purchase Price payable, and the number of
Series A Preferred Shares or other securities or property
issuable, upon exercise of the Rights are subject to
adjustment from time to time (i) in the event of a stock
dividend on, or a subdivision, combination or
reclassification of, the Series A Preferred Shares, (ii) upon
the grant to holders of the Series A Preferred Shares of
certain rights or warrants to subscribe for or purchase
Series A Preferred Shares at a price, or securities
convertible into Series A Preferred Shares with a conversion
price, less than the then-current market price of the Series
A Preferred Shares or (iii) upon the distribution to holders
of the Series A Preferred Shares of evidence of indebtedness
or assets (excluding regular periodic cash dividends paid out
of earnings or retained earnings or dividends payable in
Series A Preferred Shares) or of subscription rights or
warrants (other than those referred to above).
The number of outstanding Rights are also subject
to adjustment in the event of a stock split of the Common
Shares or a stock dividend on the Common Shares payable in
Common Shares or subdivision, consolidations or combinations
of the Common Shares occurring, in any such case, prior to
the Distribution Date.
Because of the nature of the Series A Preferred
Shares dividend, liquidation and voting rights, the value of
the one one-hundredth interest in a Series A Preferred Share
purchasable upon exercise of each Right should approximate
the long-term value of one Common Share.
In the event that any person or group of affiliated
or associated persons becomes an Acquiring Person, proper
provision is required to be made so that each holder of a
Right, other than the Acquiring Person (whose Rights will
become void), will thereafter have the right to receive upon
exercise of the Right, at its then current exercise price,
that number of Common Shares having a market value of two
times the exercise price of the Right.
In the event that, after a person or group has
become an Acquiring Person, the Company is acquired in a
merger or other business combination transaction or 50% or
more of its consolidated assets or earning power are sold,
proper provision is required to be made so that each holder
of a Right (other than an Acquiring Person, whose Rights will
have become void) will thereafter have the right to receive,
upon the exercise of the Right at its then current exercise
price, that number of shares of common stock of the person
with whom the Company has engaged in the foregoing
transaction which at the time of such transaction have a
market value of two times the exercise price of the Right.
At any time after any person or group becomes an
Acquiring Person and prior to the acquisition by such person
or group of 50% or more of the outstanding Common Shares, the
Board of Directors of the Company may exchange the Rights
(other than Rights owned by such person or group, which will
have become void), in whole or in part, for Common Shares or
Series A Preferred Shares at an exchange ratio of one Common
Share, or one one-hundredth of a Series A Preferred Share (or
of a share of a class or series of the Company' preferred
stock having equivalent rights, preferences and privileges),
per Right (subject to adjustment).
With certain exceptions, no adjustment in the
Purchase Price will be required until cumulative adjustments
require an adjustment of at least 1% in such Purchase Price.
No fractional Series A Preferred Shares will be issued (other
than fractions which are integral multiples of one one-
hundredth of a Series A Preferred Share, which may, at the
election of the Company, be evidenced by depositary receipts)
and in lieu thereof, an adjustment in cash will be made based
on the market price of the Series A Preferred Shares on the
last trading day prior to the date of exercise.
At any time prior to the time that the Company
announces that an Acquiring Person has become such, the Board
of Directors of the Company may redeem the Rights in whole,
but not in part, at a price of $.01 per Right (the
"Redemption Price"). The redemption of the Rights may be
made effective at such time, on such basis and with such
conditions as the Board of Directors in its sole discretion
may establish. Immediately upon any redemption of the
Rights, the right to exercise the Rights will terminate and
the only right of the holders of Rights will be to receive
the Redemption Price.
For so long as the Rights are then redeemable, the
Company may amend the Rights in any manner other than to
change the Redemption Price or provide for an earlier Final
Expiration Date. After the Rights are no longer redeemable
the Company may amend the Rights in any manner that does not
adversely affect the interests of holders of the Rights.
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.
A copy of the Rights Agreement has been filed with
the Securities and Exchange Commission as an Exhibit to an
Registration Statement on Form 8-A dated October 24, 1994. A
copy of the Rights Agreement is available free of charge from
the Company upon written request. This summary description
of the Rights does not purport to be complete and is
qualified in its entirety by reference to the Rights
Agreement, as the same may be amended from time to time,
which is hereby incorporated herein by reference.
