SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Earliest Event Reported: November 7, 1994
Jefferson-Pilot Corporation
(Exact name of registrant as specified in its charter)
North Carolina 1-5955 56-0896180
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
100 North Greene Street, Greensboro, North Carolina 27401
(Address of principal executive offices) (Zip Code)
(910) 691-3375
(Registrant's telephone number, including area code)
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Item 5. Other Events
1. On November 7, 1994, the Board of Directors of
Jefferson-Pilot Corporation (the "Company") amended and restated
the shareholder rights plan set forth in the Rights Agreement
(the "Rights Agreement") dated as of August 1, 1988 between the
Company and First Union National Bank of North Carolina as Rights
Agent (the "Rights Agent"). The Amended and Restated Rights
Agreement (the "Amendment") amends the Rights Agreement: to
increase the initial exercise price of the Rights to $185; to
extend the duration of the Rights to November 7, 2004; to lower
to 15% the amount of share ownership or tender offer by any
person or group of affiliated persons that triggers
exercisability of the Rights while also eliminating the
provisions for a second triggering event so that the "flip-in"
occurs automatically when a person or group crosses the 15%
ownership threshold; to permit the Company's Board of Directors
to exempt a shareholder who inadvertently crosses the 15%
threshold and then promptly reduces holdings to below 15%; to
delete the provision that allows an acquirer to acquire 80% or
more of the common stock through a tender offer without
triggering the exercisability of the Rights; to amend the
definition of "current per share market price" to base the
calculations on the lowest average closing price of the common
stock for any 30 consecutive trading days in the prior year;
and to otherwise update the shareholder rights plan to reflect
developments in the law and current practice by many U.S. public
corporations since the plan was originally adopted in 1988.
The Amended and Restated Rights Agreement is attached
hereto as an exhibit and is incorporated herein by reference.
The foregoing description is qualified in its entirety by
reference to that Agreement.
2. On November 7, 1994, the Board of Directors also
amended the Company's By-laws by adding a new Article II, Section
12, which requires at least 90 days advance notice to the
corporate secretary from a shareholder of any resolution to be
presented at a shareholders meeting.
Item 7. Exhibits
3. By-Laws of the Registrant, as amended to November 7,
1994.
4. Amended and Restated Rights Agreement dated
as of November 7, 1994 between Jefferson-
Pilot Corporation and First Union National
Bank of North Carolina, as Rights Agent.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused
this report to be signed on its behalf by the
undersigned thereunto duly authorized.
JEFFERSON-PILOT CORPORATION
By: /s/ Robert A. Reed
(name) Robert A. Reed
(title) Vice President
Dated: November 14, 1994
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INDEX TO EXHIBITS
Exhibit Page
3. By-laws of the Registrant, as amended
to November 7, 1994. 5 - 27
4. Amended and Restated Rights Agreement
dated as of November 7, 1994 between
Jefferson-Pilot Corporation and First
Union National Bank of North Carolina,
as Rights Agent. 28 - 83
4
EXHIBIT 3
BY-LAWS
OF
JEFFERSON-PILOT CORPORATION
AS AMENDED TO AND INCLUDING
NOVEMBER 7, 1994
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BY-LAWS
OF
JEFFERSON-PILOT CORPORATION
__________________
ARTICLE I
Stockholders
Section 1.
The annual meeting of the stockholders shall be held on the
first Monday in May of each and every year at 10:00 o'clock
A.M. at the principal office of the Corporation in Greensboro,
North Carolina.
Section 2.
Special meetings of the stockholders may be called by order of
the Board of Directors.
Section 3.
At least ten days' notice of a meeting of stockholders shall
be given to each stockholder personally, or by mail, to his
last known address.
Section 4.
At all meetings of the stockholders, each stockholder shall be
entitled to one vote for each share held by such stockholder,
which vote may be cast personally or by proxy duly authorized
in writing.
Section 5.
A quorum at any meeting of stockholders shall consist of
stockholders representing in person or by proxy a majority of
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the outstanding shares of stock. If no quorum is present at
any meeting, it may be adjourned from time to time until a
quorum is present.
ARTICLE II
Board of Directors
Section 1.
The business and affairs of the Corporation shall be managed
under the direction of a Board of Directors consisting of no
less than eleven and no more than fifteen directors, with the
exact number of directors to be established from time to time
by the Board of Directors.
Section 2.
The Directors of the Corporation shall be divided into three
classes, designated Class I, Class II and Class III. Each
Class shall consist, as nearly as possible, of one-third of
the total number of Directors consisting of the entire Board
of Directors. In the election of Directors at the 1986 Annual
Meeting of Shareholders, the Class I Directors shall be
elected to hold office for a term to expire at the first
annual meeting of shareholders thereafter; the Class II
Directors shall be elected to hold office for a term to expire
at the second annual meeting of shareholders thereafter; and
the Class III Directors shall be elected to hold office for a
term to expire at the third annual meeting of shareholders
thereafter, and in the case of each Class, until their
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successors are elected and qualified. At each annual
meeting of shareholders held after the 1986 Annual
Meeting of Shareholders, the Directors elected to succeed
those whose terms expire shall be identified as being of
the Class as the Directors they succeed and shall be
elected to hold office for a term to expire at the third
annual meeting of the shareholders after their election,
and until their successors are elected and qualified.
Section 3
The Board of Directors shall have power to fill vacancies on
the Board, appoint committees of the Board and elect officers
of the Corporation; authorize the employment of officers,
agents and other employees; prescribe their duties; fix their
compensation and suspend or discharge without notice any
officer, agent or employee of the Corporation provided however
such suspension or discharge shall not affect the written
contractual rights, if any, of any such officer, agent or
employee.
Section 4
(a) The regular annual meeting of the Board of Directors shall
be held at the principal office of the Corporation in
Greensboro, North Carolina, on the first Monday in May of each
year. Other regular meetings of the Board shall be held at
the principal office of the Corporation in Greensboro, North
Carolina, on the second Monday in February and on the first
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Monday in August and November of each year. The Board by
formal or informal action of the majority thereof may
cancel any regular meeting other than the regular Annual
Meeting. The President may, and upon written request of
a majority in number of the entire Board shall, change
the date and place of and fix the time for the Annual or
any other regular meeting.
(b) Special meetings of the Board may be called as prescribed
by the general corporation laws of the State of North
Carolina.
Section 5
Written notice stating the place, day and when the meeting of
the Board of Directors will commence shall be delivered not
less than five days before the date of any annual, regular or
special meeting to each director at his last known address.
Notice of an annual, regular or special meeting of the Board
of Directors need not specify the business to be transacted
at, nor the purposes of, such meeting. Any notice of any
annual, regular or special meeting of the Board of Directors
given by mail shall be deemed delivered at the time such
notice, properly addressed and with postage prepaid, is
deposited in the United States mails.
Section 6
The Board of Directors shall elect one of the Directors as
Chairman of the Board. The Chairman, who shall not be an
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officer, shall preside at all meetings of shareholders
and of the Board of Directors and shall have only such
other duties or authority as may be assigned by the Board
of Directors. The Board of Directors may elect a Vice
Chairman of the Board who shall preside at meetings of
shareholders or of the Board when the Chairman or
President and Chief Executive Officer is unable to do so.
The Chairman or Vice Chairman may be removed or replaced
by the Board at any time.
Section 7
Advance notice of shareholder nominations for the election of
Directors shall be given in the manner provided in Section 10
of the Article II.
Section 8
Vacancies on the Board of Directors may be filled by the
affirmative vote of a majority of the remaining Directors then
in office, although less than a quorum or by a sole remaining
Director. Any Director elected in accordance with the
preceding sentence shall hold office for the full term of the
Class of Directors in which the vacancy occurred, and until
such Director's successor shall have been elected and
qualified.
Section 9.
Any Director, or the entire Board of Directors, may be removed
from office at any time, with or without cause, by the
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affirmative vote of the holders of 80% of the outstanding
stock of the Corporation. Any Director may also be
removed from office at any time, for cause, by the vote
of a majority of the entire Board of Directors. The
provisions of this Section 9 are subject to the
requirements of North Carolina General Statute 55-27
relating to cumulative voting and shareholder suits until
the same may be repealed.
Section 10.
Nominations may be made by the Board of Directors or by a
proxy committee appointed by the Board of Directors or by any
shareholder entitled to vote in the election of Directors
generally. However, any shareholder entitled to vote in the
election of Directors generally may nominate one or more
persons for election as Directors at a meeting only if written
notice of such shareholder's intent to make such nomination or
nominations has been given, either by personal delivery or by
United States mail, postage prepaid, to the Secretary of the
Corporation not later than (i) with respect to an election to
be held at an annual meeting of shareholders, 90 days in
advance of such meeting, and (ii) with respect to an election
to be held at a special meeting of shareholders for the
election of Directors, the close of business on the seventh
day following the date on which notice of such meeting is
first given to shareholders. Each such notice shall set
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forth: (a) the name and address of the shareholder who
intends to make the nomination and of the person or
persons to be nominated; (b) a representation that the
shareholder is a holder of record of stock of the
Corporation entitled to vote at such meeting and intends
to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice;
(c) a description of all arrangements or understandings
between the shareholder and each nominee and any other
person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be
made by the shareholder; (d) such other information
regarding each nominee proposed by such shareholder as
would be required to be included in a proxy statement
filed pursuant to the proxy rules of the Securities and
Exchange Commission, had the nominee been nominated, or
intended to be nominated, by the Board of Directors; and
(e) the consent of each nominee to serve as a Director of
the Corporation if so elected. The Chairman of the
meeting may refuse to acknowledge the nomination of any
person not made in compliance with the foregoing
procedure.
Section 11.
Notwithstanding any other provisions of law or the
Corporation's Articles of Incorporation or these By-Laws (and
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notwithstanding the fact that a lesser percentage may be
specified by law, the Articles of Incorporation or these
By-Laws) the affirmative vote of the holders of 80% or
more of the outstanding shares of stock of the
Corporation shall be required to amend or repeal, or
adopt any provision inconsistent with or which relate to
Section 1, 2, 7, 8, 9, 10 or 11 of this Article II.
Section 12.
Proposals for shareholder action may be made only by a
shareholder entitled to vote for the election of
Directors generally and only if written notice of such
shareholder's intent to make such proposal or proposals
has been given, either by personal delivery or by United
States mail, postage prepaid, to the Secretary of the
Corporation not later than (i) with respect to an annual
meeting of shareholders, 90 days in advance of such
meeting, and (ii) with respect to a special meeting of
shareholders, the close of business on the seventh day
following the date on which notice of such meeting is
given to shareholders. Each such notice shall set forth:
(a) the name and address of the shareholder who intends
to make the proposal or proposals; (b) a written
statement of the shareholder's proposal or proposals; and
(c) a representation that the shareholder is a holder of
record of stock of the Corporation entitled to vote at
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such meeting and intends to appear in person or by proxy
at the meeting to make the proposal or proposals. The
Chairman of the meeting may refuse to acknowledge the
proposal or proposals of any person not made in
compliance with the foregoing procedure. For inclusion
in the Corporation's proxy materials, proposals must meet
any earlier deadline specified in the Corporation's most
recent proxy statement or rules of the Securities and
Exchange Commission.
ARTICLE III
Officers
Section 1
The officers of the Corporation shall consist of a President
and Chief Executive Officer, Secretary, Treasurer and such
Executive Vice Presidents, Senior Vice Presidents, Vice
Presidents, Assistant Secretaries, Assistant Treasurers and
other officers as the Board of Directors may from time to time
designate and elect or appoint. Any two or more offices may
be held by the same person and each officer elected or
appointed may be removed at any time by the Board of Directors
or the Executive Committee, provided however such removal
shall not affect the written contractual rights, if any, of
any such officer.
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Section 2
The officers of the Corporation shall be elected or appointed
by the Board of Directors and such officers shall hold office
at the pleasure of the Board and may be removed with or
without cause at any time by the Board, provided, however,
such removal shall not affect the written contractual rights,
if any, of any such officer. The Executive Committee shall
have the power to elect or appoint or remove all such
officers, provided however such removal shall not affect the
written contractual rights, if any, of any such officer.
ARTICLE IV
Duties of Officers
Section 1. President and Chief Executive Officer:
The President and Chief Executive Officer shall be the
principal executive officer of the Corporation and shall have
the authority to supervise and control the management of the
Corporation in accordance with these By-Laws, subject to the
control of the Board of Directors of the Corporation. Without
limiting the generality of the foregoing, and by way of
example only, the President and Chief Executive Officer shall,
in accordance with policies and within limits set by the Board
of Directors, have authority with respect to developing and
directing the budgets and strategic plans of the Corporation,
determining the employment and compensation of senior
executive personnel, developing and directing the
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Corporation's investment, product and marketing
strategies, determining fundamental aspects of the
Corporation's personnel and employee benefit policies,
and developing and directing the Corporation's capital
structure, financing, and significant acquisitions and
divestitures. In the absence of the Chairman of the
Board, the President and Chief Executive Officer shall
preside at all meetings of the shareholders and of the
Board of Directors. The President and Chief Executive
Officer may execute all conveyances, contracts,
agreements, and other papers and documents authorized by
the Board of Directors or that by law he is empowered to
execute or that the general statutes and laws of North
Carolina confer upon a President of a company to execute
or sign.
Section 2. Vice Presidents:
Each Executive Vice President, Senior Vice President and Vice
President shall perform the duties and exercise the powers
normally incident to those duties and powers conferred by
statutory and general law and custom upon a vice president of
a company and shall perform such other duties and have such
other powers as the Board of Directors or the President and
Chief Executive Officer shall prescribe.
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Section 3. Secretary:
The Secretary shall keep accurate records of the acts and
proceedings of all meetings of shareholders and directors. He
shall give all notices required by law and by these By-laws.
He shall have general charge of the corporate books and
records, the stock transfer books, and of the corporate seal,
and he shall affix the corporate seal to any lawfully executed
instrument requiring it. He shall sign such instruments as
may require his signature. In general, the Secretary shall
perform all duties incident to the office of Secretary and
such other duties as may be assigned him from time to time by
the Board of Directors or the President and Chief Executive
Officer.
Section 4. Treasurer:
The Treasurer shall have custody of all funds and securities
belonging to the Corporation and shall receive, deposit or
disburse the same as by law provided, and subject to such
instruction as may be given to him by the Board of Directors
or the President and Chief Executive Officer. He shall keep
full and accurate accounts of the finances of the Corporation.
The Treasurer shall, in general, perform all duties incident
to his office and such other duties as may be assigned to him
from time to time by the Board of Directors and President and
Chief Executive Officer.
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Section 5. Assistant Secretaries and Assistant Treasurers:
The Assistant Secretaries and Assistant Treasurers shall
perform such duties and exercise such powers of those offices
as shall be assigned to them by the Secretary or the
Treasurer, respectively, or by the Board of Directors or
President and Chief Executive Officer.
Section 6.
The facsimile signature may be used in any instance for any
duly elected or appointed officer in all instances in which
any such officer's signature is required or used on any
instrument in behalf of the Corporation.
ARTICLE V.
Capital Stock
Section 1.
Each holder of Capital Stock of the Corporation shall be
entitled to a certificate signed by the President and Chief
Executive Officer or a Vice President and the Secretary or an
Assistant Secretary. The Corporation's capital stock accounts
and records shall be maintained by or under the direction of
the Secretary. Transfer of shares shall be made on the stock
transfer books of the Corporation upon surrender of the
certificates for the shares sought to be transferred by the
record holder thereof or by his duly authorized agent,
transferee or legal representative. All certificates
surrendered for transfer shall be cancelled before new
certificates for the transferred shares shall be issued.
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Section 2.
The Board of Directors shall have power and authority to make
all rules, regulations, and arrangements as it may deem
expedient concerning the issue, transfer, conversion and
registration of stock certificates of the Corporation.
ARTICLE VI
Executive Committee
Section 1. Election and Number:
The Board of Directors shall elect an Executive Committee to
consist of at least five and not more than seven Directors.
Vacancies occurring in the membership of the Executive
Committee shall be filled by the Board of Directors.
Section 2. General Powers:
The Executive Committee may elect its own Chairman, Vice
Chairman and Secretary (who need not be a member of the
Executive Committee) and may exercise all of the powers and
authority of the Board of Directors (except to the extent
limited by the General Statutes of North Carolina) in the
management of the business and affairs of the Corporation when
the Board is not in session.
Section 3. Meetings:
The Executive Committee shall meet at such times and places as
the Committee itself may designate. A meeting of the
Executive Committee may be called by the Chairman of the
Executive Committee at any time and shall be called by such
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Chairman upon written request of any member of the
Executive Committee. All members shall be given
reasonable notice of the time, place and purpose of such
special meeting which, except in the case of an
emergency, shall not be less than forty-eight hours prior
to commencement of the meeting.
The notice of a meeting of the Executive Committee, issued at
the instance of a member calling a meeting of such Committee,
need not specify the business to be transacted at, nor the
purposes of, such meeting. Any notice of a meeting of the
Executive Committee given by mail shall be deemed delivered at
the time such notice, properly addressed and with postage
prepaid, is deposited in the United States mails.
Section 4. Minutes:
Minutes of the proceedings of the Executive Committee shall be
kept and shall be reported to the Board of Directors at or
prior to its next meeting following action taken by the
Executive Committee.
Section 5. Manner of Acting:
The majority of the number of members of the Executive
Committee shall constitute a quorum for the transaction of
business at any meeting. The act of a majority of the members
of the Executive Committee present shall be required for the
transaction of any business at that meeting.
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Section 6. Unanimous Written Consent:
Any action which the Executive Committee may take at a
meeting may be taken by unanimous written consent filed with
the Secretary of the Corporation.
ARTICLE VII
Other Committees of the Board
Section 1. Standing Committees.
(a) Number. There shall be five standing committees of the
Board of Directors. The standing committees are as follows:
Audit, Compensation, Contributions, Conflict of Interests and
Nominating. At the first meeting of the Board of Directors
after the annual meeting of the stockholders, the Nominating
Committee shall recommend and the Board shall appoint the
membership and the Chairman of each such Committee other than
the Nominating Committee which shall be appointed in
accordance with the procedure set forth in Section 6 of this
Article. All members shall serve at the pleasure of the
Board.
(b) Quorum. A majority of the number of members of any
standing committee shall constitute a quorum for the
transaction of business. The action of a majority of members
present at a committee meeting at which a quorum is present
shall constitute the act of the committee.
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(c) Conduct of Meetings. Any action required or permitted to
be taken by the committee may be taken without a meeting if
all members of the committee consent in writing to the
adoption of a resolution authorizing the action. The
resolution and written consent of the members shall be filed
with the minutes of the proceedings of the committee.
(d) Meetings and Minutes. Subject to the foregoing, and
unless the Board shall otherwise decide, each committee shall
fix its rules of procedure, determine its action and fix the
time and place of its meetings. Meetings of a committee may
be held at any time upon the call of the President, the
Chairman of the Committee, or any two members of the
committee. If the Chairman of a Committee will not be present
at a meeting he may designate any member of the Committee to
preside at the meeting. Each committee shall keep minutes of
all meetings which shall be at all times available to
Directors. Action taken by a committee shall be reported
promptly to the Board.
(e) Term of Office. A member of any standing committee shall
hold office until the next meeting of the Board of Directors
following the annual shareholders meeting or until he is
removed or ceases to be a Director.
(f) Vacancies. Should a vacancy occur on any standing
committee resulting from any cause whatsoever, the Nominating
Committee shall recommend and the Board may fill such vacancy.
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(g) Resignation and Removal. A member of a standing
committee may resign by giving written notice of his intention
to do so to the Chairman of the Committee or the Secretary of
the Corporation, and may be removed by the Board of Directors
at any time.
Section 2. Audit Committee:
(a) How Constituted. The Audit Committee shall consist of
not less than five nor more than seven Directors, none of whom
shall be officers of the Corporation or any subsidiary
thereof.
(b) Duties. The Audit Committee shall recommend the
selection of independent accountants to be appointed by the
Board; approve the scope of the accountants' examination and
other services; determine the duties and responsibilities of
the officer with auditing responsibility; approve the scope of
such officer's work and review the results thereof; approve
his staffing requirements and budget; review internal
accounting procedures; review reports of examination by the
accountants and by regulatory authorities and report to the
Board the Committee's recommendation with respect thereto;
monitor internal programs to ensure compliance with laws,
regulations, and the Corporation's responsibilities for
financial reporting to the public.
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Section 3. Compensation Committee.
(a) How Constituted. The Compensation Committee shall
consist of not less than five nor more than seven Directors,
none of whom shall be officers of the Corporation or any
subsidiary thereof.
(b) Duties. The compensation of all officers and employees
shall be fixed under such plan or plans of position evaluation
and salary administration as shall be approved by the
Compensation Committee. The Committee shall recommend for
Board action the salaries to be paid to the senior executive
officers, and shall approve the salaries of all other officers
except those the approval of which it delegates to the
President or a Vice President. The Compensation Committee
shall review the qualified employee benefit plans maintained
by the Corporation and review all recommendations for changes
in any plan which must be approved by the Board. The
Committee shall also administer the officer incentive plans
and determine the awards thereunder.
Section 4. Contributions Committee.
(a) How Constituted. The Contributions Committee shall
consist of not less than three nor more than five Directors.
(b) Duties. The duties of the Contributions Committee shall
be to administer and regulate the contributions practices of
the Corporation and its subsidiaries in accordance with the
policy with respect to charitable contributions adopted by the
Board of Directors.
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Section 5. Conflict of Interests Committee.
(a) How Constituted. The Conflict of Interests Committee
shall consist of not less than five nor more than seven
Directors.
(b) Duties. The Conflict of Interests Committee shall
initiate investigations concerning or investigate all
complaints concerning possible conflict of interests involving
Directors or Officers of the Corporation and shall recommend
to the Board action to be taken to remove any such conflict of
interests and policies or procedures designed to avoid such
conflicts.
Section 6. Nominating Committee.
(a) How Constituted. The Nominating Committee shall consist
of not less than five nor more than seven Directors. The
membership and chairman of the Committee shall be appointed by
the Board of Directors upon recommendation of the Executive
Committee.
(b) Duties. Subject to the provisions of Article II, Section
10 of these By-Laws, the Nominating Committee may recommend to
the Board nominees for election as directors at the annual
meeting or any special meeting of shareholders or to fill
vacancies on the Board. The Nominating Committee shall also
recommend to the Board the composition of all Committees of
the Board other than the Executive and Nominating Committees,
the Chairman of each such Committee and replacement for
Directors who have ceased to be members of such Committees.
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Section 7. Other Committees.
The Board of Directors may, by resolution establish such other
Committees of the Board as it may deem advisable. The
members, terms and authority of such Committee shall be as set
forth in such resolution. Any such Committees shall have the
authority to consider, review, advise and recommend to the
Board with respect to such matters as may be referred to it.
ARTICLE VIII
Miscellaneous
Section 1.
All promissory notes, bills, negotiable instruments, checks,
bank drafts, orders for the payment, transfer or withdrawal of
funds, and all other similar instruments of the Corporation
shall be signed, executed, or endorsed in behalf of the
Corporation in such manner and under such procedure or
procedures as may be directed and specified from time to time
by either the Board of Directors or the Executive Committee.
Section 2. Vouchers.
There shall be no expenditure of the monies of the Corporation
unless supported by a proper voucher which shall state the
person to whom paid, for what purpose, and the amount paid.
Section 3. Bonds.
The officers of the Corporation shall give such bonds as the
Board of Directors or Executive Committee may require.
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Section 4. Seal.
The corporate seal of the Corporation shall consist of two
concentric circles between which is the name of the
Corporation and in the center of which is inscribed SEAL; and
such seal, as impressed on the margin hereof, is hereby
adopted as the corporate seal of the Corporation.
Section 5. Waiver of Notice.
Whenever any notice is required to be given to any shareholder
or Director by law, by the charter or by these By-Laws, a
waiver thereof in writing signed by the person or persons
entitled to such notice, whether before, at or after the time
stated therein, shall be equivalent to the giving of such
notice.
Section 6. Fiscal Year.
The fiscal year of the Corporation shall be the calendar year
unless and until the Board of Directors or the Executive
Committee shall otherwise provide, and either the Board or the
Executive Committee may from time to time change the
Corporation's fiscal year.
-End of By-Laws-
27
EXHIBIT 4
________________________________________________________________
JEFFERSON - PILOT CORPORATION
and
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
Rights Agent
AMENDED AND RESTATED RIGHTS AGREEMENT
Dated as of November 7, 1994
________________________________________________________________
28
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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 . . . . . . . . . . . . 9
Section 5. Countersignature and Registration. . . . . . . . . 10
Section 6. Transfer, Split Up, Combination and Exchange of
Right Certificates; Mutilated, Destroyed, Lost or
Stolen Right Certificates . . . . . . . . . . . . . . . . 11
Section 7. Exercise of Rights; Purchase Price; Expiration
Date of Rights. . . . . . . . . . . . . . . . . . . . . . 13
Section 8. Cancellation and Destruction of Right
Certificates. . . . . . . . . . . . . . . . . . . . . . . 14
Section 9. Availability of Common Shares. . . . . . . . . . . 15
Section 10. Common Shares Record Date . . . . . . . . . . . . 16
Section 11. Adjustment of Purchase Price, Number of Shares
or Number of Rights . . . . . . . . . . . . . . . . . . . 17
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares. . . . . . . . . . . . . . . . . . . . . 28
Section 13. Consolidation, Merger or Sale or Transfer of
Assets or Earning Power . . . . . . . . . . . . . . . . . 28
Section 14. Fractional Rights and Fractional Shares . . . . . 30
Section 15. Rights of Action. . . . . . . . . . . . . . . . . 32
Section 16. Agreement of Right Holders. . . . . . . . . . . . 33
Section 17. Right Certificate Holder Not Deemed a
Stockholder . . . . . . . . . . . . . . . . . . . . . . . 33
Section 18. Concerning the Rights Agent . . . . . . . . . . . 34
Section 19. Merger or Consolidation or Change of Name of
Rights Agent. . . . . . . . . . . . . . . . . . . . . . . 35
29
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Section 20. Duties of Rights Agent. . . . . . . . . . . . . . 36
Section 21. Change of Rights Agent. . . . . . . . . . . . . . 40
Section 22. Issuance of New Right Certificates. . . . . . . . 42
Section 23. Redemption. . . . . . . . . . . . . . . . . . . . 42
Section 24. Exchange. . . . . . . . . . . . . . . . . . . . . 43
Section 25. Notice of Certain Events. . . . . . . . . . . . . 45
Section 26. Notices . . . . . . . . . . . . . . . . . . . . . 47
Section 27. Supplements and Amendments. . . . . . . . . . . . 48
Section 28. Successors. . . . . . . . . . . . . . . . . . . . 48
Section 29. Benefits of this Agreement. . . . . . . . . . . . 49
Section 30. Severability. . . . . . . . . . . . . . . . . . . 49
Section 31. Governing Law . . . . . . . . . . . . . . . . . . 49
Section 32. Counterparts. . . . . . . . . . . . . . . . . . . 49
Section 33. Descriptive Headings. . . . . . . . . . . . . . . 50
Exhibit A - Form of Right Certificate
30
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RIGHTS AGREEMENT
Amended and Restated Rights Agreement (this "Agreement"),
dated as of November 7, 1994, between JEFFERSON-PILOT CORPORATION, a
North Carolina Corporation (the "Company"), and FIRST UNION NATIONAL
BANK OF NORTH CAROLINA, a national banking association (the "Rights
Agent").
WHEREAS, on August 1, 1988 the Board of Directors of the
Company authorized and declared a dividend of one common share
purchase right (a "Right") for each Common Share (as hereinafter
defined) of the Company outstanding on August 12, 1988 (the "Record
Date"), each Right representing the right to purchase one Common
Share, upon the terms and subject to the conditions set forth in a
Rights Agreement, dated as of August 1, 1988 (the "Original Rights
Agreement") between the Company and the Rights Agent;
WHEREAS, the Company desires to amend and restate the
Original Rights Agreement in its entirety pursuant to Section 27 of
the Original Rights Agreement;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree to amend
and restate the Original Rights Agreement in its entirety as follows:
Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person (as such term
is hereinafter defined) who or which, together with all
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Affiliates and Associates (as such terms are hereinafter
defined) of such Person, shall be the Beneficial Owner (as
such term is hereinafter defined) of 15% or more of the
Common Shares of the Company then outstanding, but shall
not include the Company, any Subsidiary (as such term is
hereinafter defined) of the Company, any employee benefit
plan of the Company or any Subsidiary of the Company, or
any entity holding Common Shares for or pursuant to the
terms of any such plan. 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 15% or more of the Common Shares of the Company
then outstanding; provided, however, that if a Person shall
become the Beneficial Owner of 15% or more of the Common
Shares of the Company then outstanding by reason of share
purchases by the Company and shall, after such share pur-
chases by the Company, become the Beneficial Owner of any
additional Common Shares of the Company, then such Person
shall be deemed to be an "Acquiring Person". Notwith-
standing the foregoing, if the Board of Directors of the
Company determines in good faith that a Person who would
otherwise be an "Acquiring Person", as defined pursuant to
the foregoing provisions of this paragraph (a), has become
such inadvertently, and such Person divests as promptly as
practicable a sufficient number of Common Shares so that
such Person would no longer be an "Acquiring Person," as
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defined pursuant to the foregoing provisions of this
paragraph (a), then such Person shall not be deemed to be
an "Acquiring Person" for any purposes of this Agreement.
(b) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), as in effect on the date of
this Agreement.
(c) A Person shall be deemed the "Beneficial Owner" of and
shall be deemed to "beneficially own" any securities:
(i) which such Person or any of such Person's
Affiliates or Associates beneficially owns, directly or
indirectly;
(ii) which such Person or any of such Person's
Affiliates or Associates has (A) the right to acquire
(whether such right is exercisable immediately or only
after the passage of time) 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 (other than these Rights), warrants
or options, or otherwise; provided, however, that a Person
shall not be deemed the Beneficial Owner of, or to
beneficially own, securities tendered pursuant to a tender
or exchange offer made by or on behalf of such Person or
any of such Person's Affiliates or Associates until such
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tendered securities are accepted for purchase or exchange;
or (B) the right to vote pursuant to any agreement,
arrangement or understanding; provided, however, that a
Person shall not be deemed the Beneficial Owner of, or to
beneficially own, any security if the agreement,
arrangement or understanding to vote such security (1)
arises solely from a revocable proxy or consent given to
such Person in response to a public proxy or consent
solicitation made pursuant to, and in accordance with, the
applicable rules and regulations promulgated under the
Exchange Act and (2) is not also then reportable on
Schedule 13D under the Exchange Act (or any comparable or
successor report); or
(iii) which are beneficially owned, directly or
indirectly, by any other Person 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 l(c)(ii)(B)) or disposing of any
securities of the Company.
Notwithstanding anything in this definition of
Beneficial Ownership to the contrary, the phrase "then
outstanding," when used with reference to a Person's
Beneficial Ownership of securities of the Company, shall
mean the number of such securities then issued and
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outstanding together with the number of such securities not
then actually issued and outstanding which such Person
would be deemed to own beneficially hereunder.
(d) "Business Day" shall mean any day other than a
Saturday, a Sunday, or a day on which banking institutions in
North Carolina are authorized or obligated by law or executive
order to close.
(e) "Close of business" on any given date shall mean 4:00
P.M., Greensboro, North Carolina time, on such date; provided,
however, that if such date is not a Business Day it shall mean
4:00 P.M., Greensboro, North Carolina time, on the next
succeeding Business Day.
(f) "Common Shares" when used with reference to the
Company shall mean the shares of common stock, par value $1.25
per share, of the Company. "Common Shares" when used with
reference to any Person other than the Company shall mean the
capital stock (or equity interest) with the greatest voting
power of such other Person or, if such other Person is a
Subsidiary of another Person, the Person or Persons which
ultimately control such first-mentioned Person.
(g) "Distribution Date" shall have the meaning set forth
in Section 3 hereof.
(h) "Final Expiration Date" shall have the meaning set
forth in Section 7 hereof.
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(i) "Person" shall mean any individual, firm, corporation
or other entity, and shall include any successor (by merger or
otherwise) of such entity.
(j) "Redemption Date" shall have the meaning set forth in
Section 7 hereof.
(k) "Shares Acquisition Date" shall mean the first date of
public announcement by the Company or an Acquiring Person that
an Acquiring Person has become such.
(l) "Subsidiary" of any Person shall mean any corporation
or other entity of which a majority of the voting power of the
voting equity securities or equity interest is owned, directly
or indirectly, by such Person.
Section 2. Appointment of Rights Agent. The Company
hereby appoints the Rights Agent to act as agent for the Company and
the holders of the Rights (who, in accordance with Section 3 hereof,
shall prior to the Distribution Date also be the holders of the
Common 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 tenth day after 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 the Company, any Subsidiary of the Company,
36
<PAGE>
any employee benefit plan of the Company or of any Subsidiary of the
Company or any entity holding Common Shares for or pursuant to the
terms of any such plan) of, or of the first public announcement of
the intention of any Person (other than the Company, any Subsidiary
of the Company, any employee benefit plan of the Company or of any
Subsidiary of the Company or any entity holding Common Shares for or
pursuant to the terms of any such plan) to commence, a tender or
exchange offer the consummation of which would result in any Person
becoming an Acquiring Person (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 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 (which cer-
tificates shall also be deemed to be Right Certificates) and not by
separate Right Certificates, and (y) the right to receive Right
Certificates will be transferable only in connection with the
transfer of Common Shares. 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, at the address
of such holder shown on the records of the Company, a Right
Certificate, in substantially the form of Exhibit A hereto (a "Right
Certificate"), evidencing one Right for each Common Share so held.
As of the Distribution Date, the Rights will be evidenced solely by
37
<PAGE>
such Right Certificates.
(b) On the Record Date, or as soon as practicable
thereafter, the Company sent a copy of a Summary of Rights to
Purchase Common Shares, in substantially the form of Exhibit B to the
Original Rights Agreement (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, 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 a copy of the Summary of Rights attached thereto. 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 attached thereto, shall also constitute the
transfer of the Rights associated with the Common Shares represented
thereby.
(c) Certificates for Common Shares which become
outstanding (including, without limitation, reacquired Common Shares
referred to in the last sentence of this paragraph (c)) after the
date hereof 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 (or, until certificates containing such legend are available,
the legend provided by Section 3(c) of the Original Rights
Agreement):
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This certificate also evidences and entitles the holder
hereof to certain rights as set forth in an Amended and
Restated Rights Agreement between Jefferson-Pilot
Corporation and First Union National Bank of North Carolina
dated as of November 7, 1994 (the "Rights Agreement"), the
terms of which are hereby incorporated herein by reference
and a copy of which is on file at the principal executive
offices of Jefferson-Pilot Corporation. Under certain
circumstances, as set forth in the Rights Agreement, such
Rights will be evidenced by separate certificates and will
no longer be evidenced by this certificate. Jefferson-
Pilot Corporation will mail to the holder of this cer-
tificate a copy of the Rights Agreement without charge
after receipt of a written request therefor. As described
in the Rights Agreement, Rights issued to any Person who
becomes an Acquiring Person (as defined in the Rights
Agreement) shall become null and void.
With respect to certificates for Common Shares containing the
foregoing legend (or the legend provided by Section 3(c) of the
Original Rights Agreement), until the Distribution Date, the Rights
associated with the Common Shares represented by such certificates
shall be evidenced by such certificates alone, and the surrender for
transfer of any such certificate shall also constitute the transfer
of the Rights associated with the Common Shares represented thereby.
In the event that the Company purchases or acquires any Common Shares
after the Record Date but prior to the Distribution Date, any Rights
associated with such Common Shares shall be deemed canceled and
retired so that the Company shall not be entitled to exercise any
Rights associated with the Common Shares which are no longer out-
standing.
Section 4. Form of Right Certificates. The Right
Certificates (and the forms of election to purchase Common Shares and
of assignment to be printed on the reverse thereof) shall be
substantially the same as Exhibit A hereto and may have such marks of
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identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate and
as are not inconsistent with the provisions of this Agreement, or as
may be required to comply with any applicable law or with any rule or
regulation made pursuant thereto or with any rule or regulation of
any stock exchange on which the Rights may from time to time be
listed, or to conform to usage. Subject to the provisions of Section
22 hereof, the Right Certificates shall entitle the holders thereof
to purchase such number of Common Shares as shall be set forth
therein at the price per Common Share set forth therein (the
"Purchase Price"), but the number of such Common Shares and the
Purchase Price shall be subject to adjustment as provided herein.
Section 5. Countersignature and Registration. 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 manually countersigned by
the Rights Agent and shall not be valid for any purpose unless
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,
nevertheless, may be countersigned by the Rights Agent and issued and
40
<PAGE>
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.
Following the Distribution Date, the Rights Agent will keep
or cause to be kept, at its principal office, 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 date of each of the Right Cer-
tificates.
Section 6. Transfer, Split Up, Combination and Exchange of
Right Certificates; Mutilated, Destroyed, Lost or Stolen Right
Certificates. Subject to the provisions of Section 14 hereof, at any
time after the close of business on the Distribution Date, and at or
prior to the close of business on the earlier of the Redemption Date
or the Final Expiration Date, any Right Certificate or Right
Certificates (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
41
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like number of Common Shares 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 of the Rights Agent.
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.
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 delivery to the registered holder in lieu of the Right
Certificate so lost, stolen, destroyed or mutilated.
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Section 7. Exercise of Rights; Purchase Price; Expiration
Date of Rights. (a) 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 on the reverse side thereof duly
executed, to the Rights Agent at the principal office of the Rights
Agent, together with payment of the Purchase Price for each Common
Share as to which the Rights are exercised, at or prior to the
earliest of (i) the close of business on
November 7, 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 for each Common Share purchasable
pursuant to the exercise of a Right shall initially be $185, and
shall be subject to adjustment from time to time as provided in
Sections 11 and 13 hereof and shall be payable in lawful money of the
United States of America in accordance with paragraph (c) below.
(c) Upon receipt of a Right Certificate representing
exercisable Rights, with the form of election to purchase duly
executed, accompanied by payment of the Purchase Price for the 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 by certified check, cashier's check,
official bank check, or money order payable to the order of the
Company, the Rights Agent shall thereupon promptly (i) requisition
from any transfer agent of the Common Shares certificates for the
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number of Common Shares to be purchased and the Company hereby
irrevocably authorizes its transfer agent to comply with all such
requests, (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) after receipt of such
certificates, 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, deliver such cash to or upon the order of
the registered holder of such Right Certificate.
(d) In case the registered holder of any Right Certificate
shall exercise less than all the Rights evidenced thereby, a new
Right Certificate evidencing Rights equivalent to the Rights
remaining unexercised shall be issued by the Rights Agent to the
registered holder of such Right Certificate or to his duly authorized
assigns, subject to the provisions of Section 14 hereof.
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 canceled form, or, if
surrendered to the Rights Agent, shall be canceled by it, and no
Right Certificates shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Rights
Agreement. The 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
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Company otherwise than upon the exercise thereof. The Rights Agent
shall deliver all canceled Right Certificates to the Company, or
shall, at the written request of the Company, destroy such canceled
Right Certificates, and in such case shall deliver a certificate of
destruction thereof to the Company.
Section 9. Availability of Common Shares. The Company
covenants and agrees that it will cause to be reserved and kept
available out of its authorized and unissued Common Shares or any
Common Shares held in its treasury, the number of Common Shares that
will be sufficient to permit the exercise in full of all outstanding
Rights in accordance with Section 7. The Company covenants and
agrees that it will take all such action as may be necessary to
ensure that all Common Shares delivered upon exercise of Rights
shall, at the time of delivery of the certificates for such Common
Shares (subject to payment of the Purchase Price), be duly and
validly authorized and issued and fully paid and nonassessable
shares.
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 Common Shares 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 for the Common Shares in a name
other than that of, the registered holder of the Right Certificate
45
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evidencing Rights surrendered for exercise or to issue or to deliver
any certificates for Common 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.
Section 10. Common Shares Record Date. Each person in
whose name any certificate for Common Shares is issued upon the
exercise of Rights shall for all purposes be deemed to have become
the holder of record of the Common 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 Common 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 Common 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 Common Shares for which the Rights shall be
exercisable, including, without limitation, the right to vote, to
receive dividends or other distributions or to exercise any
preemptive rights, and shall not be entitled to receive any notice of
any proceedings of the Company, except as provided herein.
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Section 11. Adjustment of Purchase Price, Number of Shares or
Number of Rights. The Purchase Price, the number of Common Shares
covered by each Right and the number of Rights outstanding are subject to
adjustment from time to time as provided in this Section 11.
(a) (i) In the event the Company shall at any time after the
date of this Agreement (A) declare a dividend on the Common Shares
payable in Common Shares, (B) subdivide the outstanding Common Shares,
(C) combine the outstanding Common Shares into a smaller number of Common
Shares or (D) issue any shares of its capital stock in a reclassification
of the Common Shares (including any such reclassification in connection
with a consolidation or merger in which the 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 capital stock
issuable on such date, shall be proportionately adjusted so that the
holder of any Right exercised after such time shall be entitled to
receive the aggregate number and kind of shares of capital stock which,
if such Right had been exercised immediately prior to such date and at a
time when the Common Shares transfer books of the Company were open, he
would have owned upon such exercise and been entitled to receive by
virtue of such dividend, subdivision, combination or reclassification;
provided, however, that in no event shall the consideration to be paid
upon the exercise of one Right be less than the aggregate par value of
the shares of capital stock of the Company issuable upon exercise of one
Right.
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(ii) Subject to Section 24 of this Agreement, in the
event that any Person should become an Acquiring Person, each holder of a
Right shall thereafter have a right to receive, upon exercise thereof at
a price equal to the then current Purchase Price multiplied by the number
of Common Shares for which a Right is then exercisable, in accordance
with the terms of this Agreement, such number of Common Shares of the
Company as shall equal the result obtained by (x) multiplying the then
current Purchase Price by the number of Common Shares 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 Shares (determined
pursuant to Section 11(d) hereof) on the date of the occurrence of such
event; provided, however, that if the transaction that would otherwise
give rise to the foregoing adjustment is also subject to the provisions
of Section 13 hereof, then only the provisions of Section 13 hereof shall
apply and no adjustment shall be made pursuant to this Section 11(a)(ii).
In the event that any Person shall become an Acquiring Person and the
Rights shall then be outstanding, the Company shall not take any action
which would eliminate or diminish the benefits intended to be afforded by
the Rights.
From and after the occurrence of such event, any Rights that
are or were acquired or beneficially owned by any Acquiring Person (or
any Associate or Affiliate of such Acquiring Person) shall be void and
any holder of such Rights shall thereafter have no right to exercise such
Rights under any provision of this Agreement. No Right Certificate shall
be issued pursuant to Section 3 that represents Rights beneficially owned
by an Acquiring Person whose Rights would be void pursuant to the
preceding sentence or any Associate or Affiliate thereof; no Right
48
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Certificate shall be issued at any time upon the transfer of any Rights
to an Acquiring Person whose Rights would be void pursuant to the
preceding sentence or any Associate or Affiliate thereof or to any
nominee of such Acquiring Person, Associate or Affiliate; and any Right
Certificate delivered to the Rights Agent for transfer to an Acquiring
Person whose Rights would be void pursuant to the preceding sentence
shall be canceled.
(iii) In the event that there shall not be sufficient
Common Shares 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 Company shall take all such action as
may be necessary to authorize additional Common Shares for issuance upon
exercise of the Rights.
(b) In case the Company shall fix a record date for the
issuance of rights, options or warrants to all holders of Common Shares
entitling them (for a period expiring within 45 calendar days after such
record date) to subscribe for or purchase Common Shares or securities
convertible into Common Shares at a price per Common Share (or having a
conversion price per share, if a security convertible into Common Shares)
less than the then current per share market price of the Common Shares
(as defined in Section 11(d)) on such record date, the Purchase Price to
be in effect after such record date shall be determined by multiplying
the Purchase Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the number of Common Shares
outstanding on such record date plus the number of Common Shares which
the aggregate offering price of the total number of Common Shares so to
be offered (and/or the aggregate initial conversion price of the
49
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convertible securities so to be offered) would purchase at such current
market price and the denominator of which shall be the number of Common
Shares outstanding on such record date plus the number of additional
Common Shares to be offered for subscription or purchase (or into which
the convertible securities so to be offered are initially convertible);
provided, however, that in no event shall the consideration to be paid
upon the exercise of one Right be less than the aggregate par value of
the shares of capital stock of the Company issuable upon exercise of one
Right. In case such subscription price may be paid in a consideration
part or all of which shall be in a form other than cash, the value of
such consideration shall be 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. Common 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 succes-
sively 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 Common 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 Common Shares) or subscription rights or warrants
(excluding those referred to in Section 11(b) hereof), the Purchase Price
to be in effect after such record date shall be determined by multiplying
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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 Common Shares 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 Common Share and the denominator of which
shall be such current per share market price of the Common Shares;
provided, however, that in no event shall the consideration to be paid
upon the exercise of one Right be less than the aggregate par value of
the shares of capital stock of the Company to be issued upon exercise of
one Right. Such adjustments shall be made successively whenever such a
record date is fixed; and in the event that such distribution is not so
made, the Purchase Price shall again be adjusted to be the Purchase Price
which would then be in effect if such record date had not been fixed.
(d) For the purpose of any computation hereunder, the "current
per share market price" of the Common Shares on any date shall be deemed
to be the average of the daily closing prices per share of such Common
Shares for the 30 consecutive Trading Days (as such term is hereinafter
defined) which fall within the 1-year period ending on such date and have
the lowest such average; provided, however, that in the event that the
current per share market price of the Common Shares is determined during
a period following the announcement by the issuer of such Common Shares
of (A) a dividend or distribution on such Common Shares payable in shares
of such Common Shares or securities convertible into such shares, or (B)
any subdivision, combination or reclassification of such Common Shares
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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 subdivi-
sion, 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 Common Share. The closing price for each
day shall be the last sale price, regular way, or, in case no such sale
takes place on such day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange or, if the Common
Shares are not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated transaction reporting
system with respect to securities listed on the principal national secu-
rities exchange on which the Common Shares are listed or admitted to
trading or, if the Common Shares are not listed or admitted to trading on
any national securities exchange, the last quoted price or, if not so
quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by the National Association of
Securities Dealers, Inc. Automated Quotations System ("NASDAQ") or such
other system then in use, or, if on any such date the Common Shares are
not quoted by any such organization, the average of the closing bid and
asked prices as furnished by a professional market maker making a market
in the Common Shares selected 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 Common Shares are listed or admitted to
trading is open for the transaction of business or, if the Common Shares
are not listed or admitted to trading on any national securities
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exchange, a Business Day. If the Common Shares are not publicly held or
so listed or 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 described in a statement filed
with the Rights Agent.
(e) No adjustment in the Purchase Price shall be required
unless such adjustment would require an increase or decrease of at least
1% in the Purchase Price; provided, however, that any adjustments which
by reason of this Section 11(e) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Section 11 shall be made to the nearest cent or
to the nearest one ten-thousandth of a share as the case may be.
Notwithstanding the first sentence of this Section 11(e), any adjustment
required by this Section 11 shall be made no later than the earlier of
(i) three years from the date of the transaction which 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 capital stock of the Company other than
Common 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 Common Shares contained in Section 11(a)
through (c), inclusive, and the provisions of Sections 7, 9, 10 and 13
with respect to the Common Shares shall apply on like terms to any such
other shares.
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(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 Common
Shares 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 Common Shares (calculated to the nearest one
ten-thousandth of a share) obtained by (i) multiplying (x) the number of
shares covered by a Right immediately prior to this adjustment by (y) the
Purchase Price in effect immediately prior to such adjustment of the
Purchase Price and (ii) dividing the product so obtained by the Purchase
Price in effect immediately after such adjustment of the Purchase Price.
(i) The 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 Common Shares
purchasable upon the exercise of a Right. Each of the Rights outstanding
after such adjustment of the number of Rights shall be exercisable for
the number of Common Shares for which a Right was exercisable immediately
prior to such adjustment. Each Right held of record prior to such
adjustment of the number of Rights shall become that number of Rights
(calculated to the nearest 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
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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 shall, as promptly as practicable, cause to be distributed to
holders of record of Right Certificates on such record date Right
Certificates evidencing, subject to Section 14 hereof, the additional
Rights to which such holders shall be entitled as a result of such
adjustment, or, at the option of the 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 Common Shares issuable upon the exercise of the
Rights, the Right Certificates theretofore and thereafter issued may
continue to express the Purchase Price and the number of Common Shares
which were expressed in the initial Right Certificates issued hereunder.
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(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below the then par value, if any, of the
Common Shares 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 Common 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 of the Common Shares and other capital stock or
securities of the Company, if any, issuable upon such exercise over and
above the Common Shares and other capital stock or securities of the
Company, if any, issuable upon such exercise on the basis of the Purchase
Price in effect prior to such adjustment; provided, however, that the
Company shall deliver to such holder a due bill or other appropriate in-
strument 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 Common Shares, issuance wholly for cash of any Common
Shares at less than the current market price, issuance wholly for cash of
Common Shares or securities which by their terms are convertible into or
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exchangeable for Common Shares, dividends on Common Shares payable in
Common Shares or issuance of rights, options or warrants referred to
hereinabove in Section 11(b), hereafter made by the Company to holders of
its Common Shares shall not be taxable to such stockholders.
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 a copy of such certificate and (c) mail a
brief summary thereof to each holder of a Right Certificate in accordance
with Section 25 hereof.
Section 13. Consolidation, Merger or Sale or Transfer of
Assets or Earning Power. In the event, directly or indirectly, at any
time after a Person has become an Acquiring Person (a) the Company shall
consolidate with, or merge with and into, any other Person, (b) any
Person shall consolidate with the Company, or merge with and into the
Company and the Company shall be the continuing or surviving corporation
of such merger and, in connection with such merger, all or part of the
Common Shares shall be changed into or exchanged for stock or other
securities of any other Person (or the Company) or cash or any other
property, or (c) 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
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wholly-owned Subsidiaries, then, and in each such case, proper provision
shall be made so that (i) each holder of a Right (except as otherwise
provided herein) 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 Common Shares for which a Right is then
exercisable, in accordance with the terms of this Agreement, such number
of Common Shares of such other Person (including the Company as successor
thereto or as the surviving corporation) as shall equal the result
obtained by (A) multiplying the then current Purchase Price by the number
of Common Shares for which a Right is then exercisable and dividing that
product by (B) 50% of the then current per share market price of the
Common Shares of such other Person (determined pursuant to Section 11(d)
hereof) on the date of consummation of such consolidation, merger, sale
or transfer; (ii) the issuer of such Common Shares shall thereafter be
liable for, and shall assume, by virtue of such consolidation, merger,
sale or transfer, all the obligations and duties of the Company pursuant
to this Agreement; (iii) the term "Company" shall thereafter be deemed to
refer to such issuer; and (iv) 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 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. The Company shall not consummate any such consolidation,
merger, sale or transfer unless prior thereto the Company and such issuer
shall have executed and delivered to the Rights Agent a supplemental
agreement so providing. The Company shall not enter into any transaction
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of the kind referred to in this Section 13 if at the time of such
transaction there are any rights, warrants, instruments or securities
outstanding or any agreements or arrangements which, as a result of the
consummation of such transaction, would eliminate or substantially
diminish the benefits intended to be afforded by the Rights. The
provisions of this Section 13 shall similarly apply to successive mergers
or consolidations or sales or other transfers.
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 New York Stock Exchange
or, if the Rights are not listed or admitted to trading on the New York
Stock Exchange, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal
national securities exchange on which the Rights are listed or admitted
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to trading or, if the Rights are not listed or admitted to trading on any
national securities exchange, the last quoted price or, if not so quoted,
the average of the high bid and low asked prices in the over-the-counter
market, as reported by NASDAQ or such other system then in use or, if on
any such date the Rights are not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Rights selected by the
Board of Directors of the Company. If on any such date no such market
maker is making a market in the Rights, the fair value of the Rights on
such date as determined in good faith by the Board of Directors of the
Company shall be used.
(b) The Company shall not be required to issue fractions of
Common Shares upon exercise of the Rights or to distribute certificates
which evidence fractional Common Shares. In lieu of fractional Common
Shares, 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 Common Share. For the purposes of this Section 14(b), the current
market value of a Common Share shall be the closing price of a Common
Share (as determined pursuant to the second sentence of 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 his right to receive any fractional Rights or any
fractional shares upon exercise of a Right (except as provided above).
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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), may, in his own behalf and for his own benefit,
enforce, and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise act in respect of, his right
to exercise the Rights evidenced by such 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;
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(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if
surrendered at the principal office of the Rights Agent, 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.
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 Common
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 Section 25 hereof), or to receive dividends or
subscription rights, or otherwise, until the Right or Rights evidenced by
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such Right Certificate shall have been exercised in accordance with the
provisions hereof.
Section 18. Concerning the Rights Agent. The Company agrees
to pay to the Rights Agent reasonable compensation for all services
rendered by it hereunder and, from time to time, on demand of the Rights
Agent, its reasonable expenses and counsel fees and 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 by the Rights Agent,
without negligence, bad faith or willful misconduct on its part, in
connection with this Agreement, including, without limitation, the costs
and expenses of defending against any claim of liability in the premises.
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 (i) in
reliance upon any Right Certificate or certificate for the 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 document
believed by it to be genuine and to be signed, executed and, where
necessary, verified or acknowledged, by the proper person or persons, or
(ii) otherwise upon the advice of counsel as set forth in Section 20
hereof.
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Section 19. Merger or Consolidation or Change of Name of
Rights Agent. Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or
consolidation to which the Rights Agent or any successor Rights Agent
shall be a party, or any corporation succeeding to the stock transfer or
corporate trust business of the Rights Agent or any successor Rights
Agent, shall be the successor to the Rights Agent under this Agreement
without the execution or filing of any paper or any further act on the
part of any of the parties hereto; provided, that such corporation would
be eligible for appointment as a successor Rights Agent under the
provisions of Section 21 hereof. In case at the time such successor
Rights Agent shall succeed to the agency created by this Agreement, any
of the Right Certificates shall have been countersigned but not
delivered, any such successor Rights Agent may adopt the countersignature
of 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.
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
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shall not have been countersigned, the Rights Agent may countersign such
Right Certificates either in its prior name or in its changed name; and
in all such cases such Right Certificates shall have the full force
provided in the Right Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent
undertakes 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,
suffering or omitting any action hereunder, such fact or matter (unless
other evidence in respect thereof be herein specifically prescribed) may
be deemed to be conclusively proved and established by a certificate
signed by any one of the Chairman of the Board, the Chief Executive
Officer, the President, any Vice President, the Treasurer or the
Secretary of the Company and delivered to the Rights Agent; and such
certificate shall be full authorization to the Rights Agent for any
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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 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 Section 3, 11, 13, 23 or 24, 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
actual notice that such change or adjustment is required); nor shall it
be responsible for any determination of the market value of the Rights or
the Common Shares pursuant to the provisions hereof; nor shall it by any
act hereunder be deemed to make any representation or warranty as to the
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authorization or reservation of any Common Shares to be issued pursuant
to this Agreement or any Right Certificate or as to whether any Common
Shares will, when issued, be validly authorized and issued, fully paid
and nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed, acknowledged
and delivered all such further and other acts, instruments and assurances
as may reasonably be required by the Rights Agent for the carrying out or
performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties
hereunder from any one of the Chairman of the Board, the Chief Executive
Officer, the President, any Vice President, the Secretary or the
Treasurer of the Company, and to apply to such officers for advice or
instructions in connection with its duties, and it shall not be liable
for any action taken, suffered or omitted by it in good faith in
accordance with instructions of any such officer or for any delay in
acting while waiting for those instructions.
(h) The Rights Agent and any stockholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights
or other securities of the Company or become pecuniarily interested in
any transaction in which the Company may be interested, or contract with
or lend money to the Company or otherwise act as fully and freely as
though it were not Rights Agent under this Agreement. Nothing herein
shall preclude the Rights Agent from acting in any other capacity for the
Company or for any other legal entity.
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(i) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder either
itself or by or through its attorneys or agents, and the Rights Agent
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.
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 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 30 days' notice in writing, mailed to the Rights Agent or successor
Rights Agent, as the case may be, and to each transfer agent of the
Common Shares by registered or certified mail, and to the 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
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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 his 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 of the State of North Carolina or New York (or of
any other state of the United States so long as such corporation is
authorized to do business as a banking institution in the State of North
Carolina or New York), in good standing, having an office in the State of
North Carolina or New York, which is authorized under such laws to
exercise corporate trust or stock transfer powers and is subject to
supervision or examination by federal or state authority and which has at
the time of its appointment as Rights Agent a combined capital and
surplus of at least $50 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, and mail a notice thereof in writing to the
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registered holders of the Right Certificates. Failure to appoint a
successor Rights Agent or 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 ap-
pointment of the successor Rights Agent, as the case may be.
Section 22. Issuance of New Right Certificates.
Notwithstanding any of the provisions of this Agreement or of the Rights
to the contrary, the 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 purchasable under the Right Certificates made in accordance with
the provisions of this Agreement.
Section 23. Redemption. (a) The Board of Directors of the
Company may, at its option, at any time prior to such time as any Person
becomes an Acquiring Person, 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 transac-
tion occurring after the date hereof (such redemption price being
hereinafter referred to as the "Redemption Price"). The redemption of the
Rights by the Board of Directors may be made effective at such time, on
such basis and with such conditions as the Board of Directors in its sole
discretion may establish.
(b) Immediately upon the action of the Board of Directors of
the Company ordering the redemption of the Rights pursuant to paragraph
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(a) of this Section 23, and without any further action and without any
notice, the right to exercise the Rights will terminate and the only
right thereafter of the holders of Rights shall be to receive the
Redemption Price. 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 will state the method by
which the payment of the Redemption Price will be made. Neither the
Company nor any of its Affiliates or Associates may redeem, acquire or
purchase for value any Rights at any time in any manner other than that
specifically set forth in this Section 23 or in Section 24 hereof, and
other than in connection with the purchase of Common Shares prior to the
Distribution Date.
Section 24. Exchange. (a) The Board of Directors of the
Company may, at its option, at any time after any Person becomes an
Acquiring Person, exchange all or part of the then outstanding and
exercisable Rights (which shall not include Rights that have become void
pursuant to the provisions of Section 11(a)(ii) hereof) for Common Shares
at an exchange ratio of one Common Share per Right, appropriately
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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 the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or
any such Subsidiary, or any entity holding Common Shares for or pursuant
to the terms of any such plan), together with all Affiliates and
Associates of such Person, becomes the Beneficial Owner of 50% or more of
the Common Shares then outstanding .
(b) Immediately upon the action of the Board of Directors of
the 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
Common Shares equal to the number of such Rights held by such holder
multiplied by the Exchange Ratio. The Company shall promptly give public
notice of any such exchange; provided, however, that the failure to give,
or any defect in, such notice shall not affect the validity of such
exchange. The Company promptly shall mail a notice of any such exchange
to all of the holders of such Rights at their last addresses as they
appear upon the registry books of the Rights Agent. Any notice which is
mailed in the manner herein provided shall be deemed given, whether or
not the holder receives the notice. Each such notice of exchange will
state the method by which the exchange of the Common Shares for Rights
will be effected and, in the event of any partial exchange, the number
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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 Common
Shares issued but not outstanding or authorized but unissued to permit
any exchange of Rights as contemplated in accordance with this Section
24, the Company shall take all such action as may be necessary to
authorize additional Common Shares for issuance upon exchange of the
Rights.
(d) The Company shall not be required to issue fractions of
Common Shares or to distribute certificates which evidence fractional
Common Shares. In lieu of such fractional Common Shares, the Company
shall pay to the registered holders of the Right Certificates with regard
to which such fractional Common Shares would otherwise be issuable an
amount in cash equal to the same fraction of the current market value of
a whole Common Share. For the purposes of this paragraph (d), the
current market value of a whole Common Share shall be the closing price
of a Common Share (as determined pursuant to the second sentence of
Section 11(d) hereof) for the Trading Day immediately prior to the date
of exchange pursuant to this Section 24.
Section 25. Notice of Certain Events. (a) In case the
Company shall propose (i) to pay any dividend payable in stock of any
class to the holders of its Common Shares or to make any other
distribution to the holders of its Common Shares (other than a regular
quarterly cash dividend), (ii) to offer to the holders of its Common
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Shares rights or warrants to subscribe for or to purchase any additional
Common Shares or shares of stock of any class or any other securities,
rights or options, (iii) to effect any reclassification of its Common
Shares (other than a reclassification involving only the subdivision of
outstanding Common Shares), (iv) to effect any consolidation or merger
into or with, or to effect any sale or other transfer (or to permit one
or more of its Subsidiaries to effect any sale or other transfer), in one
or more transactions, of 50% or more of the assets or earning power of
the Company and its Subsidiaries (taken as a whole) to, any other Person,
(v) to effect the liquidation, dissolution or winding up of the Company,
then, in each such case, the Company shall give to each holder of a Right
Certificate, in accordance with Section 26 hereof, a notice of such pro-
posed 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 reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution, or winding up is to take place and the date of
participation therein by the holders of the Common Shares, if any such
date is to be fixed, and such notice shall be so given in the case of any
action covered by clause (i) or (ii) above at least 10 days prior to the
record date for determining holders of the Common Shares for purposes of
such action, and in the case of any such other action, at least 10 days
prior to the date of the taking of such proposed action or the date of
participation therein by the holders of the Common Shares whichever shall
be the earlier.
(b) In case the event set forth in Section 11(a)(ii) hereof
shall occur, then the Company shall as soon as practicable thereafter
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give to each holder of a Right Certificate, in accordance with Section 26
hereof, a notice of the occurrence of such event, which notice shall
describe such event and the consequences of such event to holders of
Rights under Section 11(a)(ii) hereof.
Section 26. Notices. Notices or demands authorized by this
Agreement to be given or made by the Rights Agent or by the holder of any
Right Certificate to or on the Company shall be sufficiently given or
made if sent by first-class mail, postage prepaid, addressed (until
another address is filed in writing with the Rights Agent) as follows:
Jefferson-Pilot Corporation
101 North Elm Street
P.O. Box 21008
Greensboro, North Carolina 27420
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 to or on the Rights Agent shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the Company) as
follows:
Vice President and Trust Officer
First Union National Bank of North Carolina
Corporate Trust Department CMG-5
Charlotte, North Carolina 28202-9984
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
shall be sufficiently given or made if sent by first-class mail, postage
prepaid, addressed to such holder at the address of such holder as shown
on the registry books of the Company.
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Section 27. Supplements and Amendments. The Company may from
time to time supplement or amend this Agreement without the approval of
any holders of Right Certificates in such manner as the Company may deem
necessary or desirable, any such supplement or amendment to be evidenced
by a writing signed by the Company and the Rights Agent; provided,
however, that from and after such time as any Person becomes an Acquiring
Person, this Agreement shall not be amended in any manner which would
adversely affect the interests of the holders of Rights. Without limiting
the foregoing, the Company may at any time prior to such time as any
Person becomes an Acquiring Person amend this Agreement to lower the
thresholds set forth in Sections l(a) and 3(a) hereof to not less than
the greater of (i) any percentage greater than the largest percentage of
the outstanding Common Shares then known by the Company to be ben-
eficially owned by any Person (other than the Company, any Subsidiary of
the Company, any employee benefit plan of the Company or any Subsidiary
of the Company, or any entity holding Common Shares for or pursuant to
the terms of any such plan) and (ii) 10%.
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 or corporation 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
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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).
Section 30. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
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 North Carolina and for all purposes shall be
governed by and construed in accordance with the laws of such State
applicable to contracts to be made and performed entirely within such
State.
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.
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JEFFERSON-PILOT CORPORATION
Attest:
By_/S/Robert A. Reed___ By_/S/Dennis R. Glass___________
Title: Secretary Title: Senior Vice President,
CFO and Treasurer
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
Attest:
By_/S/Frances S. Beam By_/S/Kenneth E.Staab___________
Title: Vice President Title: Vice President
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Exhibit A
Form of Right Certificate
Certificate No. R- ___________ Rights
NOT EXERCISABLE AFTER NOVEMBER 7, 2004 OR EARLIER IF REDEMPTION
OR EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO REDEMPTION AT
$.01 PER RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT.
Right Certificate
JEFFERSON-PILOT CORPORATION
This certifies that _________________, or registered assigns,
is the registered owner of the number of Rights set forth above, each of
which entitles the owner thereof, subject to the terms, provisions and
conditions of the Amended and Restated Rights Agreement, dated as of
November 7, 1994 (the "Rights Agreement"), between JEFFERSON-PILOT
CORPORATION, a North Carolina corporation (the "Company"), and First
Union National Bank of North Carolina (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 4:00 P.M., North Carolina
time, on November 7, 2004 at the principal office of the Rights Agent, or
at the office of its successor as Rights Agent, one fully paid
non-assessable share of Common Stock, par value $1.25 per share (the
"Common Shares"), of the Company, at a purchase price of $185, per Common
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 Common Shares 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 _____________19 _, based on the Common Shares as
constituted at such date. As provided in the Rights Agreement, the
Purchase Price and the number of Common Shares 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 hereunder 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.
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This Right Certificate, with or without other Right
Certificates, upon surrender at the principal office of the Rights Agent,
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 Common 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 (i) may be redeemed by the Company at a
redemption price of $.01 per Right or (ii) may be exchanged in whole or
in part for Common Shares.
No fractional Common Shares will be issued upon the exercise of
any Right or Rights evidenced hereby, but in lieu thereof a cash payment
will be made, as provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to vote
or receive dividends or be deemed for any purpose the holder of the
Common 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 shareholder of the Company or any
right to vote for the election of directors or upon any matter submitted
to shareholders at any meeting thereof, or to give or withhold consent to
any corporate action, or to receive notice of meetings or other actions
affecting shareholders (except as provided in the Rights Agreement), or
to receive dividends or subscription rights, or otherwise, until the
Right or Rights evidenced by this Right Certificate shall have been
exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal. Dated as of _____________, 19__.
ATTEST: JEFFERSON-PILOT CORPORATION
_____________________________ By___________________________
Countersigned:
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
By___________________________
Authorized Signature
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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 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
- ---------------------------------------------------------------
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Form of Reverse Side of Right Certificate -- continued
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise Rights represented by the Right Certificate.)
To: JEFFERSON-PILOT CORPORATION
The undersigned hereby irrevocably elects to exercise
_________________________ Rights represented by this Right Certificate to
purchase the Common Shares issuable upon the exercise of such Rights and
requests that certificates for such Common 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 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.
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Form of Reverse Side of Right Certificate -- continued
- ----------------------------------------------------------------
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 signature in the Form of Assignment or Form of Election to
Purchase, as the case may be, must conform 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 the Form of Election to Purchase, as the case may be, is
not completed, the Company and the Rights Agent will deem the beneficial
owner of the Rights evidenced by this Right Certificate to be an
Acquiring Person or an Affiliate or Associate thereof (as defined in the
Rights Agreement) and such Assignment or Election to Purchase will not be
honored.
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