SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Kerr-McGee Corporation
(Exact name of registrant as specified in its charter)
Delaware No. 73-0311467
(State of incorporation or organization) (IRS Employer
Identification No.)
Kerr-McGee Center
Oklahoma City, Oklahoma 73125
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the
Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
Preferred Share Purchase Rights New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the
Act:
None
(Title of Class)
<PAGE>
Item 1. Description of Registrant's Securities to be
Registered
On July 9, 1996 the Board of Directors of Kerr-
McGee Corporation (the "Company") declared a dividend of one
preferred share purchase right (a "Right") for each outstanding
share of common stock, par value $1.00 per share, of the Company
(the "Common Stock"). The dividend is payable on July 22, 1996
(the "Record Date") to the stockholders of record on that date.
Each Right entitles the registered holder to purchase from the
Company one one-hundredth of a share of Series B Junior
Participating Preferred Stock, without par value (the "Preferred
Stock") of the Company at a price of $215.00 per one one-
hundredth of a share of Preferred Stock (the "Purchase Price"),
subject to adjustment. The description and terms of the Rights
are set forth in a Rights Agreement dated as of July 9, 1996 as
the same may be amended from time to time (the "Rights
Agreement"), between the Company and The Liberty Bank and Trust
Company of Oklahoma City, N.A. as Rights Agent (the "Rights
Agent").
Until the earlier to occur of (i) 10 days
following a public announcement that a person or group of
affiliated or associated persons (with certain exceptions an
"Acquiring Person") have acquired beneficial ownership of 15% or
more of the outstanding shares of Common Stock or (ii) 10
business days (or such later date as may be determined by action
of the Board of Directors prior to such time as any person or
group of affiliated persons becomes an Acquiring Person)
following the commencement of, or announcement of an intention
to make, a tender offer or exchange offer the consummation of
which would result in the beneficial ownership by a person or
group of 15% or more of the outstanding shares of Common Stock
(the earlier of such dates being called the "Distribution
Date"), the Rights will be evidenced, with respect to any of the
Common Stock certificates outstanding as of the Record Date, by
such Common Stock certificate together with a copy of this
Summary of Rights.
The Rights Agreement provides that, until the
Distribution Date (or earlier redemption or expiration of the
Rights), the Rights will be transferred with and only with the
Common Stock. Until the Distribution Date (or earlier
redemption or expiration of the Rights), new Common Stock
certificates issued after the Record Date upon transfer or new
issuances of Common Stock will contain a notation incorporating
the Rights Agreement by reference. Until the Distribution Date
(or earlier redemption or expiration of the Rights), the
surrender for transfer of any certificates for shares of Common
Stock outstanding as of the Record Date, even without such
notation or a copy of this Summary of Rights, will also
constitute the transfer of the Rights associated with the shares
of Common Stock represented by such certificate. As soon as
practicable following the Distribution Date, separate
certificates evidencing the Rights ("Right Certificates") will
be mailed to holders of record of the Common Stock as of the
close of business on the Distribution Date and such separate
Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the
Distribution Date. The Rights will expire on July 22, 2006 (the
"Final Expiration Date"), unless the Final Expiration Date is
advanced or extended or unless the Rights are earlier redeemed
or exchanged by the Company, in each case as described below.
The Purchase Price payable, and the number of
shares of Preferred Stock or other securities or property
issuable, upon exercise of the Rights are subject to adjustment
from time to time to prevent dilution (i) in the event of a
stock dividend on, or a subdivision, combination or
reclassification of, the Preferred Stock, (ii) upon the grant to
holders of the Preferred Stock of certain rights or warrants to
subscribe for or purchase Preferred Stock at a price, or
securities convertible into Preferred Stock with a conversion
price, less than the then-current market price of the Preferred
Stock or (iii) upon the distribution to holders of the Preferred
Stock of evidences of indebtedness or assets (excluding regular
periodic cash dividends or dividends payable in Preferred Stock)
or of subscription rights or warrants (other than those referred
to above).
The number of outstanding Rights is also subject
to adjustment in the event of a stock split of the Common Stock
or a stock dividend on the Common Stock payable in shares of
Common Stock or subdivisions, consolidations or combinations of
the Common Stock occurring, in any such case, prior to the
Distribution Date.
Shares of Preferred Stock purchasable upon
exercise of the Rights will not be redeemable. Each share of
Preferred Stock will be entitled, when, as and if declared, to
a minimum preferential quarterly dividend payment of $1 per
share but will be entitled to an aggregate dividend of 100 times
the dividend declared per share of Common Stock. In the event
of liquidation, dissolution or winding up of the Company, the
holders of the Preferred Stock will be entitled to a minimum
preferential liquidation payment of $100 per share (plus any
accrued but unpaid dividends) but will be entitled to an
aggregate payment of 100 times the payment made per share of
Common Stock. Each share of Preferred Stock will have 100
votes, voting together with the Common Stock. Finally, in the
event of any merger, consolidation or other transaction in which
shares of Common Stock are converted or exchanged, each share of
Preferred Stock will be entitled to receive 100 times the amount
received per share of Common Stock. These rights are protected
by customary antidilution provisions.
Because of the nature of the Preferred Stock's
dividend, liquidation and voting rights, the value of the one
one-hundredth interest in a share of Preferred Stock purchasable
upon exercise of each Right should approximate the value of one
share of Common Stock.
In the event that any person or group of
affiliated or associated persons becomes an Acquiring Person,
each holder of a Right, other than Rights beneficially owned by
the Acquiring Person (which will thereupon become void), will
thereafter have the right to receive upon exercise of a Right at
the then current exercise price of the Right, that number of
shares of Common Stock having a market value of two times the
exercise price of the Right.
In the event that, after a person or group has
become an Acquiring Person, the Company is acquired in a merger
or other business combination transaction or 50% or more of its
consolidated assets or earning power are sold, proper provision
will be made so that each holder of a Right (other than Rights
beneficially owned by an Acquiring Person which will have become
void) will thereafter have the right to receive, upon the
exercise thereof at the then current exercise price of the
Right, that number of shares of common stock of the person with
whom the Company has engaged in the foregoing transaction (or
its parent), which number of shares at the time of such
transaction will have a market value of two times the exercise
price of the Right.
At any time after any person or group becomes an
Acquiring Person and prior to the acquisition by such person or
group of 50% or more of the outstanding shares of Common Stock
or the occurrence of an event described in the prior paragraph,
the Board of Directors of the Company may exchange the Rights
(other than Rights owned by such person or group which will have
become void), in whole or in part, at an exchange ratio of one
share of Common Stock, or one one-hundredth of a share of
Preferred Stock (or of a share of a class or series of the
Company's preferred stock having equivalent rights, preferences
and privileges), per Right (subject to adjustment).
With certain exceptions, no adjustment in the
Purchase Price will be required until cumulative adjustments
require an adjustment of at least 1% in such Purchase Price. No
fractional shares of Preferred Stock will be issued (other than
fractions which are integral multiples of one one-hundredth of
a share of Preferred Stock, which may, at the election of the
Company, be evidenced by depositary receipts) and in lieu there-
of, an adjustment in cash will be made based on the market price
of the Preferred Stock on the last trading day prior to the date
of exercise.
At any time prior to the time an Acquiring Person
becomes such, the Board of Directors of the Company may redeem
the Rights in whole, but not in part, at a price of $.01 per
Right (the "Redemption Price"). The redemption of the Rights
may be made effective at such time, on such basis and with such
conditions as the Board of Directors in its sole discretion may
establish. Immediately upon any redemption of the Rights, the
right to exercise the Rights will terminate and the only right
of the holders of Rights will be to receive the Redemption
Price.
For so long as the Rights are then redeemable,
the Company may, except with respect to the redemption price,
amend the Rights in any manner. After the Rights are no longer
redeemable, the Company may, except with respect to the
redemption price, amend the Rights in any manner that does not
adversely affect the interests of holders of the Rights.
Until a Right is exercised, the holder thereof,
as such, will have no rights as a stockholder of the Company,
including, without limitation, the right to vote or to receive
dividends.
<PAGE>
Item 2. Exhibits
1. Rights Agreement, dated as of July 9, 1996,
between the Company and Liberty Bank and
Trust Company of Oklahoma City, N.A. which
includes the Certificate of Designations for the
Series B Junior Participating Preferred Stock as
Exhibit A, the form of Right Certificate as
Exhibit B and the Summary of Rights to Purchase
Preferred Shares as Exhibit C. Pursuant to the
Rights Agreement, printed Right Certificates will
not be mailed until as soon as practicable after
the earlier of the tenth day after public
announcement that a person or group has acquired
beneficial ownership of 15% or more of the shares
of Common Stock or the tenth business day after
a person commences, or announces its intention to
commence, a tender offer or exchange offer the
consummation of which would result in the
beneficial ownership by a person or group of 15%
or more of the shares of Common Stock.
2. Press Release dated July 9, 1996.
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, the registrant has duly caused
this registration statement to be signed on its behalf by the
undersigned thereunto duly authorized.
KERR-MCGEE CORPORATION
Dated: July 9, 1996 By: (JOHN C. LINEHAN)
Name: John C. Linehan
Title: Senior Vice
President and Chief
Financial Officer
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
1. Rights Agreement, dated as of July 9, 1996,
between the Company and Liberty Bank and
Trust Company of Oklahoma City, N.A. & Trust Co.
of Oklahoma City which includes the Certificate
of Designations for the Series B Junior
Participating Preferred Stock as Exhibit A, the
form of Right Certificate as Exhibit B and the
Summary of Rights to Purchase Preferred Shares as
Exhibit C. Pursuant to the Rights Agreement,
printed Right Certificates will not be mailed
until as soon as practicable after the earlier of
the tenth day after public announcement that a
person or group has acquired beneficial ownership
of 15% or more of the shares of Common Stock or
the tenth business day after a person commences,
or announces its intention to commence, a tender
offer or exchange offer the consummation of which
would result in the beneficial ownership by a
person or group of 15% or more of the shares of
Common Stock.
2. Press Release dated July 9, 1996.
KERR-MCGEE CORPORATION
and
LIBERTY BANK AND TRUST COMPANY
OF OKLAHOMA CITY, N.A.
as Rights Agent
Rights Agreement
Dated as of July 9, 1996
<PAGE>
TABLE OF CONTENTS
Page
Section 1. Certain Definitions . . . . . . . . . . . . 1
Section 2. Appointment of Rights Agent . . . . . . . . 9
Section 3. Issue of Right Certificates . . . . . . . . 9
Section 4. Form of Right Certificates. . . . . . . . . 12
Section 5. Countersignature and Registration . . . . . 13
Section 6. Transfer, Split Up, Combination and Exchange
of Right Certificates; Mutilated, Destroyed,
Lost or Stolen Right Certificates . . . . 14
Section 7. Exercise of Rights, Purchase Price;
Expiration Date of Rights . . . . . . . . 16
Section 8. Cancellation and Destruction of Right
Certificates. . . . . . . . . . . . . . . 18
Section 9. Availability of Shares of Preferred Stock . 19
Section 10. Preferred Stock Record Date . . . . . . . . 22
Section 11. Adjustment of Purchase Price, Number of
Shares and Number of Rights . . . . . . . 22
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares. . . . . . . . . . . . . 42
Section 13. Consolidation, Merger or Sale or Transfer of
Assets or Earnings Power. . . . . . . . . 42
Section 14. Fractional Rights and Fractional
Shares. . . . . . . . . . . . . . . . . . 50
Section 15. Rights of Action. . . . . . . . . . . . . . 53
Section 16. Agreement of Right Holders. . . . . . . . . 54
Section 17. Right Certificate Holder Not Deemed
a Stockholder . . . . . . . . . . . . . . 55
Section 18. Concerning the Rights Agent . . . . . . . . 55
Section 19. Merger or Consolidation or Change of Name
of Rights Agent . . . . . . . . . . . . . 56
Section 20. Duties of Rights Agent. . . . . . . . . . . 57
Section 21. Change of Rights Agent. . . . . . . . . . . 62
Section 22. Issuance of New Right Certificates. . . . . 64
Section 23. Redemption. . . . . . . . . . . . . . . . . 64
Section 24. Exchange. . . . . . . . . . . . . . . . . . 66
Section 25. Notice of Certain Events. . . . . . . . . . 68
Section 26. Notices . . . . . . . . . . . . . . . . . . 70
Section 27. Supplements and Amendments. . . . . . . . . 70
Section 28. Successors. . . . . . . . . . . . . . . . . 72
Section 29. Benefits of this Agreement. . . . . . . . . 72
Section 30. Determinations and Actions by the
Board of Directors. . . . . . . . . . . . 72
Section 31. Severability. . . . . . . . . . . . . . . . 73
Section 32. Governing Law . . . . . . . . . . . . . . . 73
Section 33. Counterparts. . . . . . . . . . . . . . . . 73
Section 34. Descriptive Headings. . . . . . . . . . . . 73
<PAGE>
RIGHTS AGREEMENT
Agreement, dated as of July 9, 1996 between Kerr-McGee
Corporation, a Delaware corporation (the "Company"), and
Liberty Bank and Trust Company of Oklahoma City, N.A. (the
"Rights Agent").
The Board of Directors of the Company has authorized and
declared a dividend of one preferred share purchase right (a
"Right") for each share of Common Stock (as hereinafter defined)
of the Company outstanding as of the close of business (as
defined below) on July 22, 1996 (the "Record Date") each Right
representing the right to purchase one-hundredth (subject to
adjustment) of a share of Preferred Stock (as hereinafter
defined), upon the terms and subject to the conditions herein
set forth, and the Board of Directors has further authorized and
directed the issuance of one Right (subject to adjustment as
provided herein) with respect to each share of Common Stock that
shall become outstanding between the Record Date and the
earliest of the Distribution Date, the Redemption Date and the
Final Expiration Date (as such terms are hereinafter defined);
provided, however, that Rights may be issued with respect to
shares of Common Stock that shall become outstanding after the
Distribution Date and prior to the Redemption Date and the Final
Expiration Date in accordance with Section 22.
Accordingly, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as
follows:
Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meaning indicated:
(a) "Acquiring Person" shall mean any Person (as such
term is hereinafter defined) who or which shall be the
Beneficial Owner (as such term is hereinafter defined) of 15% or
more of the shares of Common Stock then outstanding, but shall
not include an Exempt Person (as such term is hereinafter
defined); provided, however, that if the Board of Directors of
the Company determines in good faith that a Person who would
otherwise be an "Acquiring Person" has become such inadvertently
(including, without limitation, because (i) such Person was
unaware that it beneficially owned a percentage of Common Stock
that would otherwise cause such Person to be a "Acquiring
Person" or (ii) such Person was aware of the extent of its
Beneficial Ownership of Common Stock but had no actual knowledge
of the consequences of such Beneficial Ownership under this
Rights Agreement) and without any intention of changing or
influencing control of the Company, and such Person, as promptly
as practicable after being advised of such determination
divested or divests himself or itself of Beneficial Ownership of
a sufficient number of shares of Common Stock so that such
Person would no longer be an Acquiring Person, then such Person
shall not be deemed to be or to have become an "Acquiring
Person" for any purposes of this Agreement. Notwithstanding the
foregoing, (i) if a Person would be deemed an Acquiring Person
upon the adoption of this Agreement because of ownership of 15%
or more but less than 20% of the shares of stock on such date,
such Person will not be deemed an Acquiring Person for any
purposes of this Agreement unless and until such Person acquires
Beneficial Ownership of any additional shares of Common Stock
(other than pursuant to a dividend or distribution paid or made
by the Company on the outstanding Common Stock in shares of
Common Stock or pursuant to a split or subdivision of the
outstanding Common Stock), after the adoption of this Agreement
unless upon the consummation of the acquisition of such
additional shares of Common Stock such Person does not own 15%
or more of the shares of Common Stock then outstanding and (ii)
no Person shall become an "Acquiring Person" as the result of an
acquisition of shares of Common Stock 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 shares of Common Stock then outstanding,
provided, however, that if a Person shall become the Beneficial
Owner of 15% or more of the shares of Common Stock then
outstanding by reason of such share acquisitions by the Company
and thereafter become the Beneficial Owner of any additional
shares of Common Stock (other than pursuant to a dividend or
distribution paid or made by the Company on the outstanding
Common Stock in shares of Common Stock or pursuant to a split or
subdivision of the outstanding Common Stock), then such Person
shall be deemed to be an "Acquiring Person" unless upon the
consummation of the acquisition of such additional shares of
Common Stock such Person does not own 15% or more of the shares
of Common Stock then outstanding. For all purposes of this
Agreement, any calculation of the number of shares of Common
Stock outstanding at any particular time, including for purposes
of determining the particular percentage of such outstanding
shares of Common Stock of which any Person is the Beneficial
Owner, shall be made in accordance with the last sentence of
Rule 13d-3(d)(1)(i) of the General Rules and Regulations under
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), as in effect on the date hereof.
(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,
shall be deemed to have "Beneficial Ownership" of and shall be
deemed to "beneficially own" any securities:
(i) which such Person or any of such Person's
Affiliates or Associates is deemed to beneficially own,
directly or indirectly within the meaning of Rule 13d-3
of the General Rules and Regulations under the Exchange
Act as in effect on the date of this Agreement;
(ii) which such Person or any of such Person's
Affiliates or Associates has (A) the right to acquire
(whether such right is exercisable immediately or only
after the passage of time) pursuant to any agreement,
arrangement or understanding (other than customary
agreements with and between underwriters and selling
group members with respect to a bona fide public offering
of securities), or upon the exercise of conversion
rights, exchange rights, rights, warrants or options, or
otherwise; provided, however, that a Person shall not be
deemed the Beneficial Owner of, or to beneficially own,
(x) securities tendered pursuant to a tender or exchange
offer made by or on behalf of such Person or any of such
Person's Affiliates or Associates until such tendered
securities are accepted for purchase, (y) securities
which such Person has a right to acquire on the exercise
of Rights at any time prior to the time a Person becomes
an Acquiring Person or (z) securities issuable upon
exercise of Rights from and after the time a Person
becomes an Acquiring Person if such Rights were acquired
by such Person or any of such Person's Affiliates or
Associates prior to the Distribution Date or pursuant to
Section 3(a) or Section 22 hereof ("original Rights") or
pursuant to Section 11(i) or Section 11(n) with respect
to an adjustment to original Rights; or (B) the right to
vote pursuant to any agreement, arrangement or
understanding; provided, however, that a Person shall not
be deemed the Beneficial Owner of, or to beneficially
own, any security by reason of such agreement,
arrangement or understanding if the agreement,
arrangement or understanding to vote such security (1)
arises solely from a revocable proxy or consent given to
such Person in response to a public proxy or consent
solicitation made pursuant to, and in accordance with,
the applicable rules and regulations promulgated under
the Exchange Act and (2) is not also then reportable on
Schedule 13D under the Exchange Act (or any comparable or
successor report); or
(iii) which are beneficially owned, directly or
indirectly, by any other Person with which such Person or
any of such Person's Affiliates or Associates has any
agreement, arrangement or understanding (other than
customary agreements with and between underwriters and
selling group members with respect to a bona fide public
offering of securities) for the purpose of acquiring,
holding, voting (except to the extent contemplated by the
proviso to Section 1(c)(ii)(B)) or disposing of any
securities of the Company.
(d) "Business Day" shall mean any day other than a
Saturday, a Sunday, or a day on which banking institutions in
the State of New York, or the State in which the principal
office of the Rights Agent is located, are authorized or
obligated by law or executive order to close.
(e) "close of business" on any given date shall mean
5:00 P.M., Oklahoma City time, on such date; provided, however,
that if such date is not a Business Day it shall mean 5:00 P.M.,
New York City time, on the next succeeding Business Day.
(f) "Common Stock" when used with reference to the
Company shall mean the common stock, par value $1.00 per share,
of the Company. "Common Stock" when used with reference to any
Person other than the Company shall mean the capital stock (or,
in the case of an unincorporated entity, the equivalent equity
interest) with the greatest voting power of such other Person
or, if such other Person is a subsidiary of another Person, the
Person or Persons which ultimately control such first-mentioned
Person.
(g) "Distribution Date" shall have the meaning set forth
in Section 3 hereof.
(h) "equivalent preferred shares" shall have the meaning
set forth in Section 11(b) hereof.
(i) "Exempt Person" shall mean the Company, any
Subsidiary (as such term is hereinafter defined) of the Company,
in each case including, without limitation, in its fiduciary
capacity, or, any employee benefit plan of the Company or of any
Subsidiary of the Company, or any entity or trustee holding
Common Stock for or pursuant to the terms of any such plan or
for the purpose of funding any such plan or funding other
employee benefits for employees of the Company or of any
Subsidiary of the Company.
(j) "Final Expiration Date" shall have the meaning set
forth in Section 7 hereof.
(k) "New York Stock Exchange" shall mean the New York
Stock Exchange, Inc.
(l) "Person" shall mean any individual, firm,
corporation or other entity, and shall include any successor (by
merger or otherwise) of such entity.
(m) "Preferred Stock" shall mean the Series B Junior
Participating Preferred Stock, without par value, of the Company
having the rights and preferences set forth in the Form of
Certificate of Designation attached to this Agreement as Exhibit
A.
(n) "Record Date" shall have the meaning set forth in
the preamble to this Agreement.
(o) "Redemption Date" shall have the meaning set forth
in Section 7 hereof.
(p) "Securities Act" shall mean the Securities Act of
1933, as amended.
(q) "Stock Acquisition Date" shall mean the first date
of public announcement (which for purposes of this definition,
shall include, without limitation, a report filed pursuant to
Section 13(d) of the Exchange Act) by the Company or an Acquir-
ing Person that an Acquiring Person has become such or such
earlier date as a majority of the Board of Directors shall
become aware of the existence of an Acquiring Person.
(r) "Subsidiary" of any Person shall mean any
corporation or other entity of which securities or other
ownership interests having ordinary voting power sufficient to
elect a majority of the board of directors or other persons
performing similar functions are beneficially owned, directly or
indirectly, by such Person, and any corporation or other entity
that is otherwise controlled by such Person.
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 Common Stock) in accordance with the terms and
conditions hereof, and the Rights Agent hereby accepts such
appointment. The Company may from time to time appoint such co-
Rights Agents as it may deem necessary or desirable.
Section 3. Issue of Right Certificates. (a) Until the
earlier of (i) the tenth day after the Stock Acquisition Date or
(ii) the tenth business day (or such later date as may be
determined by action of the Board of Directors prior to such
time as any Person becomes an Acquiring Person) after the date
of the commencement by any Person (other than an Exempt Person)
of, or of the first public announcement of the intention of such
Person (other than an Exempt Person) to commence, a tender or
exchange offer the consummation of which would result in any
Person (other than an Exempt Person) becoming the Beneficial
Owner of shares of Common Stock aggregating 15% or more of the
Common Stock then outstanding (including any such date which is
after the date of this Agreement and prior to the issuance of
the Rights), the earlier of such dates 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 Stock registered in the names of the
holders thereof and not by separate Right Certificates, and (y)
the Rights will be transferable only in connection with the
transfer of Common Stock. 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 Stock as of the close of business on the
Distribution Date (other than any Acquiring Person or any
Associate or Affiliate of an Acquiring Person), at the address
of such holder shown on the records of the Company, a Right
Certificate, in substantially the form of Exhibit B hereto (a
"Right Certificate"), evidencing one Right (subject to
adjustment as provided herein) for each share of Common Stock so
held. As of the Distribution Date, the Rights will be evidenced
solely by such Right Certificates.
(b) On the Record Date, or as soon as practicable
thereafter, the Company will send a copy of a Summary of Rights
to Purchase Shares of Preferred Stock, in substantially the form
of Exhibit C hereto (the "Summary of Rights"), by first-class,
postage-prepaid mail, to each record holder of Common Stock as
of the close of business on the Record Date (other than any
Acquiring Person or any Associate or Affiliate of any Acquiring
Person), at the address of such holder shown on the records of
the Company. With respect to certificates for Common Stock out-
standing as of the Record Date, until the Distribution Date, the
Rights will be evidenced by such certificates registered in the
names of the holders thereof together with the Summary of
Rights. Until the Distribution Date (or the earlier of the
Redemption Date or the Final Expiration Date), the surrender for
transfer of any certificate for Common Stock outstanding on the
Record Date, with or without a copy of the Summary of Rights,
shall also constitute the transfer of the Rights associated with
the Common Stock represented thereby.
Certificates issued for Common Stock (including, without
limitation, upon transfer of outstanding Common Stock,
disposition of Common Stock out of treasury stock or issuance or
reissuance of Common Stock out of authorized but unissued
shares) after the Record Date but prior to the earliest of the
Distribution Date, the Redemption Date or the Final Expiration
Date shall have impressed on, printed on, written on or
otherwise affixed to them the following legend:
This certificate also evidences and entitles the
holder hereof to certain rights as set forth in
a Rights Agreement between Kerr-McGee Corporation
and The Liberty Bank and Trust Company of
Oklahoma City, N.A. dated as of July 9, 1996 as
the same may be amended from time to time (the
"Rights Agreement"), the terms of which are
hereby incorporated herein by reference and a
copy of which is on file at the principal
executive offices of Kerr-McGee 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. Kerr-McGee
Corporation will mail to the holder of this
certificate a copy of the Rights Agreement
without charge after receipt of a written request
therefor. Under certain circumstances, as set
forth in the Rights Agreement, Rights owned by or
transferred to any Person who becomes an
Acquiring Person (as defined in the Rights
Agreement) and certain transferees thereof will
become null and void and will no longer be
transferable.
With respect to such certificates containing the foregoing
legend until the Distribution Date, the Rights associated with
the Common Stock represented by such certificates shall be
evidenced by such certificates alone, and the surrender for
transfer of any such certificate, except as otherwise provided
herein, shall also constitute the transfer of the Rights
associated with the Common Stock represented thereby. In the
event that the Company purchases or otherwise acquires any
Common Stock after the Record Date but prior to the Distribution
Date, any Rights associated with such Common Stock shall be
deemed cancelled and retired so that the Company shall not be
entitled to exercise any Rights associated with the Common Stock
which are no longer outstanding.
Notwithstanding this paragraph (c), the omission of a
legend shall not affect the enforceability of any part of this
Agreement or the rights of any holder of the Rights.
Section 4. Form of Right Certificates. The Right
Certificates (and the forms of election to purchase shares and
of assignment to be printed on the reverse thereof) shall be
substantially in the form set forth in Exhibit B hereto and may
have such marks of identification or designation and such
legends, summaries or endorsements printed thereon as the
Company may deem appropriate and as are not inconsistent with
the provisions of this Agreement, or as may be required to
comply with any applicable law or with any rule or regulation
made pursuant thereto or with any rule or regulation of the New
York Stock Exchange or of any other stock exchange or automated
quotation system on which the Rights may from time to time be
listed, or to conform to usage. Subject to the provisions of
Sections 11, 13 and 22 hereof, the Right Certificates shall
entitle the holders thereof to purchase such number of one one-
hundredths of a share of Preferred Stock as shall be set forth
therein at the price per one one-hundredth of a share of
Preferred Stock set forth therein (the "Purchase Price"), but
the number of such one one-hundredths of a share of Preferred
Stock and the Purchase Price shall be subject to adjustment as
provided herein.
Section 5. Countersignature and Registration. (a) The
Right Certificates shall be executed on behalf of the Company by
the Chairman of the Board of Directors, the President, any of
the Vice Presidents, the Treasurer or the Controller of the
Company, 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 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 Agreement any such Person was not such an of-
ficer.
(b) Following the Distribution Date, the Rights Agent
will keep or cause to be kept, at an office or agency designated
for such purpose, 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
Certificates.
Section 6. Transfer, Split Up, Combination and Exchange
of Right Certificates; Mutilated, Destroyed, Lost or Stolen
Right Certificates. (a) Subject to the provisions of Sections
7(e), 11(a)(ii) and 14 hereof, at any time after the close of
business on the Distribution Date, and prior to the close of
business on the earlier of the Redemption Date or the Final
Expiration Date, any Right Certificate or Right Certificates may
be transferred, split up, combined or exchanged for another
Right Certificate or Right Certificates, entitling the
registered holder to purchase a like number of one
one-hundredths of a share of Preferred Stock 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 office or agency of the Rights Agent designated for such
purpose. Thereupon the Rights Agent shall countersign and
deliver to the Person entitled thereto a Right Certificate or
Right Certificates, as the case may be, as so requested. The
Company may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with
any transfer, split up, combination or exchange of Right
Certificates.
(b) Subject to the provisions of Section 11(a)(ii)
hereof, at any time after the Distribution Date and prior to the
close of business on the earlier of the Redemption Date or the
Final Expiration Date, 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.
Section 7. Exercise of Rights, Purchase Price;
Expiration Date of Rights. (a) Except as otherwise provided
herein, the Rights shall become exercisable on the Distribution
Date, and thereafter the registered holder of any Right
Certificate may, subject to Section 11(a)(ii) hereof and except
as otherwise provided herein, exercise the Rights evidenced
thereby in whole or in part 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
office or agency of the Rights Agent designated for such
purpose, together with payment of the Purchase Price for each
one one-hundredth of a share of Preferred Stock as to which the
Rights are exercised, at any time which is both after the
Distribution Date and prior to the earliest of (i) the close of
business on July 22, 2006 (the "Final Expiration Date"), (ii)
the time at which the Rights are redeemed as provided in Section
23 hereof (the "Redemption Date") or (iii) the time at which
such Rights are exchanged as provided in Section 24 hereof.
(b) The Purchase Price shall be initially $215.00 for
each one one-hundredth of a share of Preferred Stock purchasable
upon the exercise of a Right. The Purchase Price and the number
of one one-hundredths of a share of Preferred Stock or other
securities or property to be acquired upon exercise of a Right
shall be subject to adjustment from time to time as provided in
Sections 11 and 13 hereof and shall be payable in lawful money
of the United States of America in accordance with paragraph (c)
of this Section 7.
(c) Except as otherwise provided herein, upon receipt of
a Right Certificate representing exercisable Rights, with the
form of election to purchase duly executed, accompanied by
payment of the aggregate Purchase Price for the shares of
Preferred Stock to be purchased and an amount equal to any
applicable transfer tax required to be paid by the holder of
such Right Certificate in accordance with Section 9 hereof, in
cash or by certified check, cashier's check or money order
payable to the order of the Company, the Rights Agent shall
thereupon promptly (i) (A) requisition from any transfer agent
of the Preferred Stock certificates for the number of shares of
Preferred Stock to be purchased and the Company hereby
irrevocably authorizes its transfer agent to comply with all
such requests, or (B) requisition from the depositary agent de-
positary receipts representing interests in such number of one
one-hundredths of a share of Preferred Stock as are to be
purchased (in which case certificates for the Preferred Stock
represented by such receipts shall be deposited by the transfer
agent with the depositary agent) and the Company hereby directs
the depositary agent to comply with such request, (ii) when
appropriate, requisition from the Company the amount of cash to
be paid in lieu of issuance of fractional shares in accordance
with Section 14 hereof, (iii) promptly after receipt of such
certificates or depositary receipts, cause the same to be
delivered to or upon the order of the registered holder of such
Right Certificate, registered in such name or names as may be
designated by such holder and (iv) when appropriate, after
receipt, promptly deliver such cash to or upon the order of the
registered holder of such Right Certificate.
(d) Except as otherwise provided herein, in case the
registered holder of any Right Certificate shall exercise less
than all the Rights evidenced thereby, a new Right Certificate
evidencing Rights equivalent to the exercisable Rights remaining
unexercised shall be issued by the Rights Agent to the
registered holder of such Right Certificate or to his duly
authorized assigns, subject to the provisions of Section 14
hereof.
(e) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Company shall be
obligated to undertake any action with respect to a registered
holder of Rights upon the occurrence of any purported transfer
or exercise of Rights pursuant to Section 6 hereof or this
Section 7 unless such registered holder shall have (i) completed
and signed the certificate contained in the form of assignment
or election to purchase set forth on the reverse side of the
Rights Certificate surrendered for such transfer or exercise and
(ii) provided such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) thereof as the
Company shall reasonably request.
Section 8. Cancellation and Destruction of Right
Certificates. All Right Certificates surrendered for the
purpose of exercise, transfer, split up, combination or exchange
shall, if surrendered to the Company or to any of its agents, be
delivered to the Rights Agent for cancellation or in cancelled
form, or, if surrendered to the Rights Agent, shall be cancelled
by it, and no Right Certificates shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this
Agreement. The Company shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall so
cancel and retire, any other Right Certificate purchased or
acquired by the Company otherwise than upon the exercise
thereof. The Rights Agent shall deliver all cancelled Right
Certificates to the Company, or shall, at the written request of
the Company, destroy such cancelled Right Certificates, and in
such case shall deliver a certificate of destruction thereof to
the Company.
Section 9. Availability of Shares of Preferred Stock.
(a) The Company covenants and agrees that it will cause
to be reserved and kept available out of its authorized and
unissued shares of Preferred Stock or any shares of Preferred
Stock held in its treasury, the number of shares of Preferred
Stock that will be sufficient to permit the exercise in full of
all outstanding Rights.
(b) So long as the shares of Preferred Stock (and,
following the time that a Person becomes an Acquiring Person,
shares of Common Stock and other securities) issuable upon the
exercise of Rights may be listed or admitted to trading on the
New York Stock Exchange or listed on any other national
securities exchange or quotation system, the Company shall use
its best efforts to cause, from and after such time as the
Rights become exercisable, all shares reserved for such issuance
to be listed or admitted to trading on the New York Stock
Exchange or listed on any other exchange or quotation system
upon official notice of issuance upon such exercise.
(c) From and after such time as the Rights become
exercisable, the Company shall use its best efforts, if then
necessary to permit the issuance of shares of Preferred Stock
(and following the time that a Person first becomes an Acquiring
Person, shares of Common Stock and other securities) upon the
exercise of Rights, to register and qualify such shares of
Preferred Stock (and following the time that a Person first
becomes an Acquiring Person, shares of Common Stock and other
securities) under the Securities Act and any applicable state
securities or "Blue Sky" laws (to the extent exemptions
therefrom are not available), cause such registration statement
and qualifications to become effective as soon as possible after
such filing and keep such registration and qualifications
effective until the earlier of the date as of which the Rights
are no longer exercisable for such securities and the Final
Expiration Date. The Company may temporarily suspend, for a
period of time not to exceed 90 days, the exercisability of the
Rights in order to prepare and file a registration statement
under the Securities Act and permit it to become effective.
Upon any such suspension, the Company shall issue a public
announcement stating that the exercisability of the Rights has
been temporarily suspended, as well as a public announcement at
such time as the suspension is no longer in effect.
Notwithstanding any provision of this Agreement to the contrary,
the Rights shall not be exercisable in any jurisdiction unless
the requisite qualification in such jurisdiction shall have been
obtained and until a registration statement under the Securities
Act (if required) shall have been declared effective.
(d) The Company covenants and agrees that it will take
all such action as may be necessary to ensure that all shares of
Preferred Stock (and, following the time that a Person becomes
an Acquiring Person, shares of Common Stock and other
securities) delivered upon exercise of Rights shall, at the time
of delivery of the certificates therefor (subject to payment of
the Purchase Price), be duly and validly authorized and issued
and fully paid and nonassessable shares.
(e) The Company further covenants and agrees that it
will pay when due and payable any and all federal and state
transfer taxes and charges which may be payable in respect of
the issuance or delivery of the Right Certificates or of any
shares of Preferred Stock (or shares of Common Stock or other
securities) upon the exercise of Rights. The Company shall not,
however, be required to pay any transfer tax which may be
payable in respect of any transfer or delivery of Right
Certificates to a Person other than, or the issuance or delivery
of certificates or depositary receipts for the Preferred Stock
(or shares of Common Stock or other securities) in a name other
than that of, the registered holder of the Right Certificate
evidencing Rights surrendered for exercise or to issue or
deliver any certificates or depositary receipts for Preferred
Stock (or shares of Common Stock or other securities) upon the
exercise of any Rights until any such tax shall have been paid
(any such tax being payable by that 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. Preferred Stock Record Date. Each Person in
whose name any certificate for Preferred Stock is issued upon
the exercise of Rights shall for all purposes be deemed to have
become the holder of record of the shares of Preferred Stock
represented thereby on, and such certificate shall be dated, the
date upon which the Right Certificate evidencing such Rights was
duly surrendered and payment of the Purchase Price (and any
applicable transfer taxes) was made; provided, however, that if
the date of such surrender and payment is a date upon which the
Preferred Stock transfer books of the Company are closed, such
Person shall be deemed to have become the record holder of such
shares on, and such certificate shall be dated, the next
succeeding Business Day on which the Preferred Stock transfer
books of the Company are open. Prior to the exercise of the
Rights evidenced thereby, the holder of a Right Certificate
shall not be entitled to any rights of a holder of Preferred
Stock for which the Rights shall be exercisable, including,
without limitation, the right to vote or to receive dividends or
other distributions, and shall not be entitled to receive any
notice of any proceedings of the Company, except as provided
herein.
Section 11. Adjustment of Purchase Price, Number of
Shares and Number of Rights. The Purchase Price, the number of
shares of Preferred Stock or other securities or property
purchasable upon exercise of each Right and the number of Rights
outstanding are subject to adjustment from time to time as
provided in this Section 11.
(a) (i) In the event the Company shall at any time
after the date of this Agreement (A) declare a dividend
on the Preferred Stock payable in shares of Preferred
Stock, (B) subdivide the outstanding Preferred Stock, (C)
combine the outstanding Preferred Stock into a smaller
number of Preferred Stock or (D) issue any shares of its
capital stock in a reclassification of the Preferred
Stock (including any such reclassification in connection
with a consolidation or merger in which the Company is
the continuing or surviving corporation), except as
otherwise provided in this Section 11(a), 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 re-
ceive 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 Preferred Stock
transfer books of the Company were open, the holder would
have owned upon such exercise and been entitled to
receive by virtue of such dividend, subdivision,
combination or reclassification; 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.
(ii) Subject to Section 24 of this Agreement, in the
event that any Person becomes an Acquiring Person, then
(A) the Purchase Price shall be adjusted to be the
Purchase Price in effect immediately prior to such Person
becoming an Acquiring Person multiplied by the number of
one one-hundredths of a share of Preferred Stock for
which a Right was exercisable immediately prior to such
Person becoming an Acquiring Person, whether or not such
Right was then exercisable, and (B) each holder of a
Right, except as otherwise provided in this Section
11(a)(ii) and Subsection 11(a)(iii), hereof, shall
thereafter have the right to receive, upon exercise at a
price equal to the Purchase Price (as so adjusted), in
accordance with the terms of this Agreement and in lieu
of shares of Preferred Stock, such number of shares of
Common Stock (or at the option of the Company, such
number of one one-hundredths of shares of Preferred
Stock) as shall equal the result obtained by (x)
multiplying the then current Purchase Price by the number
of one one-hundredths of a share of Preferred Stock for
which a Right is then exercisable and dividing that
product by (y) 50% of the then current per share market
price of the Company's Common Stock (determined pursuant
to Section 11(d) hereof) on the date such Person became
an Acquiring Person; provided, however, that the Purchase
Price and the number of shares of Common Stock so
receivable upon exercise of a Right shall thereafter be
subject to further adjustment as appropriate in
accordance with Section 11(f) hereof. Notwithstanding
anything in this Agreement to the contrary, however, from
and after the time (the "invalidation time") when any
Person first becomes an Acquiring Person, any Rights that
are beneficially owned by (x) any Acquiring Person (or
any Affiliate or Associate of any Acquiring Person), (y)
a transferee of any Acquiring Person (or any such
Affiliate or Associate) who becomes a transferee after
the invalidation time or (z) a transferee of any
Acquiring Person (or any such Affiliate or Associate) who
became a transferee prior to or concurrently with the
invalidation time pursuant to either (I) a transfer from
the Acquiring Person to holders of its equity securities
or to any Person with whom it has any continuing
agreement, arrangement or understanding regarding the
transferred Rights or (II) a transfer which the Board of
Directors has determined is part of a plan, arrangement
or understanding which has the purpose or effect of
avoiding the provisions of this paragraph, and subsequent
transferees of such Persons, shall be void without any
further action and any holder of such Rights shall
thereafter have no rights whatsoever with respect to such
Rights under any provision of this Agreement. The
Company shall use all reasonable efforts to ensure that
the provisions of this Section 11(a)(ii) are complied
with, but shall have no liability to any holder of Right
Certificates or other Person as a result of its failure
to make any determinations with respect to an Acquiring
Person or its Affiliates, Associates or transferees
hereunder. From and after the invalidation time, no
Right Certificate shall be issued pursuant to Section 3
or Section 6 hereof that represents Rights that are or
have become void pursuant to the provisions of this
paragraph, and any Right Certificate delivered to the
Rights Agent that represents Rights that are or have
become void pursuant to the provisions of this paragraph
shall be cancelled. From and after the occurrence of an
event specified in Section 13(a) hereof, any Rights that
theretofore have not been exercised pursuant to this
Section 11(a)(ii) shall thereafter be exercisable only in
accordance with Section 13 and not pursuant to this
Section 11(a)(ii).
(iii) The Company may at its option substitute for
a share of Common Stock issuable upon the exercise of
Rights in accordance with the foregoing subparagraph (ii)
such number or fractions of shares of Preferred Stock
having an aggregate current market value equal to the
current per share market price of a share of Common
Stock. In the event that there shall not be sufficient
shares of Common Stock issued but not outstanding or
authorized but unissued to permit the exercise in full of
the Rights in accordance with the foregoing subparagraph
(ii), the Board of Directors shall, to the extent
permitted by applicable law and any material agreements
then in effect to which the Company is a party (A)
determine the excess of (1) the value of the shares of
Common Stock issuable upon the exercise of a Right in
accordance with the foregoing subparagraph (ii) (the
"Current Value") over (2) the then current Purchase Price
multiplied by the number of one one-hundredths of shares
of Preferred Stock for which a Right was exercisable
immediately prior to the time that the Acquiring Person
became such (such excess, the "Spread"), and (B) with
respect to each Right (other than Rights which have
become void pursuant to Section 11(a)(ii)), make adequate
provision to substitute for the shares of Common Stock
issuable in accordance with subparagraph (ii) upon
exercise of the Right and payment of the applicable
Purchase Price, (1) cash, (2) a reduction in the Purchase
Price, (3) shares of Preferred Stock or other equity
securities of the Company (including, without limitation,
shares or fractions of shares of preferred stock which,
by virtue of having dividend, voting and liquidation
rights substantially comparable to those of the shares of
Common Stock, are deemed in good faith by the Board of
Directors to have substantially the same value as the
shares of Common Stock (such shares of preferred stock
and shares or fractions of shares of preferred stock are
hereinafter referred to as "Common Stock equivalents"),
(4) debt securities of the Company, (5) other assets, or
(6) any combination of the foregoing, having a value
which, when added to the value of the shares of Common
Stock actually issued upon exercise of such Right, shall
have an aggregate value equal to the Current Value (less
the amount of any reduction in the Purchase Price), where
such aggregate value has been determined by the Board of
Directors upon the advice of a nationally recognized
investment banking firm selected in good faith by the
Board of Directors; provided, however, if the Company
shall not make adequate provision to deliver value
pursuant to clause (B) above within thirty (30) days
following the date that the Acquiring Person became such
(the "Section 11(a)(ii) Trigger Date"), then the Company
shall be obligated to deliver, to the extent permitted by
applicable law and any material agreements then in effect
to which the Company is a party, upon the surrender for
exercise of a Right and without requiring payment of the
Purchase Price, shares of Common Stock (to the extent
available), and then, if necessary, such number or
fractions of shares of Preferred Stock (to the extent
available) and then, if necessary, cash, which shares
and/or cash have an aggregate value equal to the Spread.
If, upon the date any Person becomes an Acquiring Person,
the Board of Directors shall determine in good faith that
it is likely that sufficient additional shares of Common
Stock could be authorized for issuance upon exercise in
full of the Rights, then, if the Board of Directors so
elects, the thirty (30) day period set forth above may be
extended to the extent necessary, but not more than
ninety (90) days after the Section 11(a)(ii) Trigger
Date, in order that the Company may seek stockholder
approval for the authorization of such additional shares
(such thirty (30) day period, as it may be extended, is
herein called the "Substitution Period"). To the extent
that the Company determines that some action need be
taken pursuant to the second and/or third sentence of
this Section 11(a)(iii), the Company (x) shall provide,
subject to Section 11(a)(ii) hereof and the last sentence
of this Section 11(a)(iii) hereof, that such action shall
apply uniformly to all outstanding Rights and (y) may
suspend the exercisability of the Rights until the
expiration of the Substitution Period in order to seek
any authorization of additional shares and/or to decide
the appropriate form of distribution to be made pursuant
to such second sentence and to determine the value
thereof. In the event of any such suspension, the
Company shall issue a public announcement stating that
the exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time
as the suspension is no longer in effect. For purposes
of this Section 11(a)(iii), the value of the shares of
Common Stock shall be the current per share market price
(as determined pursuant to Section 11(d)(i)) on the
Section 11(a)(ii) Trigger Date and the per share or
fractional value of any "Common Stock equivalent" shall
be deemed to equal the current per share market price of
the Common Stock. The Board of Directors of the Company
may, but shall not be required to, establish procedures
to allocate the right to receive shares of Common Stock
upon the exercise of the Rights among holders of Rights
pursuant to this Section 11(a)(iii).
(b) In case the Company shall fix a record date
for the issuance of rights, options or warrants to all
holders of Preferred Stock entitling them (for a period
expiring within 45 calendar days after such record date)
to subscribe for or purchase Preferred Stock (or shares
having the same rights, privileges and preferences as the
Preferred Stock ("equivalent preferred shares")) or
securities convertible into Preferred Stock or equivalent
preferred shares at a price per share of Preferred Stock
or equivalent preferred shares (or having a conversion
price per share, if a security convertible into shares of
Preferred Stock or equivalent preferred shares) less than
the then current per share market price of the Preferred
Stock (determined pursuant to Section 11(d) hereof) on
such record date, the Purchase Price to be in effect
after such record date shall be determined by multiplying
the Purchase Price in effect immediately prior to such
record date by a fraction, the numerator of which shall
be the number of shares of Preferred Stock and equivalent
preferred shares outstanding on such record date plus the
number of shares of Preferred Stock and equivalent
preferred shares which the aggregate offering price of
the total number of shares of Preferred Stock and/or
equivalent preferred shares so to be offered (and/or the
aggregate initial conversion price of the convertible
securities so to be offered) would purchase at such
current market price, and the denominator of which shall
be the number of shares of Preferred Stock and equivalent
preferred shares outstanding on such record date plus the
number of additional shares of Preferred Stock and/or
equivalent preferred shares to be offered for
subscription or purchase (or into which the convertible
securities so to be offered are initially convertible);
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.
Shares of Preferred Stock and equivalent preferred shares
owned by or held for the account of the Company shall not
be deemed outstanding for the purpose of any such
computation. Such adjustment shall be made successively
whenever such a record date is fixed; and in the event
that such rights, options or warrants are not so issued,
the Purchase Price shall be adjusted to be the Purchase
Price which would then be in effect if such record date
had not been fixed.
(c) In case the Company shall fix a record date
for the making of a distribution to all holders of the
Preferred Stock (including any such distribution made in
connection with a consolidation or merger in which the
Company is the continuing or surviving corporation) of
evidences of indebtedness or assets (other than a regular
quarterly cash dividend or a dividend payable in
Preferred Stock) or subscription rights or warrants
(excluding those referred to in Section 11(b) hereof),
the Purchase Price to be in effect after such record date
shall be determined by multiplying the Purchase Price in
effect immediately prior to such record date by a
fraction, the numerator of which shall be the then
current per share market price of the Preferred Stock
(determined pursuant to Section 11(d) hereof) on such
record date, less the fair market value (as determined in
good faith by the Board of Directors of the Company whose
determination shall be described in a statement filed
with the Rights Agent) of the portion of the assets or
evidences of indebtedness so to be distributed or of such
subscription rights or warrants applicable to one share
of Preferred Stock, and the denominator of which shall be
such current per share market price (determined pursuant
to Section 11(d) hereof) of the Preferred Stock;
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)(i) Except as otherwise provided herein, for the
purpose of any computation hereunder, the "current per
share market price" of any security (a "Security" for the
purpose of this Section 11(d)(i)) on any date shall be
deemed to be the average of the daily closing prices per
share of such Security for the 30 consecutive Trading
Days (as such term is hereinafter defined) immediately
prior to such date; provided, however, that in the event
that the current per share market price of the Security
is determined during a period following the announcement
by the issuer of such Security of (A) a dividend or
distribution on such Security payable in shares of such
Security or securities convertible into such shares, or
(B) any subdivision, combination or reclassification of
such Security, and prior to the expiration of 30 Trading
Days after the ex-dividend date for such dividend or
distribution, or the record date for such subdivision,
combination or reclassification, then, and in each such
case, the current per share market price shall be
appropriately adjusted to reflect the current market
price per share equivalent of such Security. The closing
price for each day shall be the last sale price, regular
way, or, in case no such sale takes place on such day,
the average of the closing bid and asked prices, regular
way, in either case as reported by the principal
consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York
Stock Exchange or, if the Security is 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
Security is listed or admitted to trading or, if the
Security is not listed or admitted to trading on any
national securities exchange, the last quoted price or,
if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported
by NASDAQ or such other system then in use, or, if on any
such date the Security is not quoted by any such
organization, the average of the closing bid and asked
prices as furnished by a professional market maker making
a market in the Security selected by the Board of
Directors of the Company. The term "Trading Day" shall
mean a day on which the principal national securities
exchange on which the Security is listed or admitted to
trading is open for the transaction of business or, if
the Security is not listed or admitted to trading on any
national securities exchange, a Business Day.
(ii) For the purpose of any computation
hereunder, if the Preferred Stock is publicly traded, the
"current per share market price" of the Preferred Stock
shall be determined in accordance with the method set
forth in Section 11(d)(i). If the Preferred Stock is not
publicly traded but the Common Stock is publicly traded,
the "current per share market price" of the Preferred
Stock shall be conclusively deemed to be the current per
share market price of the Common Stock as determined
pursuant to Section 11(d)(i) multiplied by one hundred
(appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date
hereof). If neither the Common Stock nor the Preferred
Stock is publicly traded, "current per share market
price" shall mean the fair value per share as determined
in good faith by the Board of Directors of the Company,
whose determination shall be 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 of Preferred Stock
or share of Common Stock or other share or security as
the case may be. Notwithstanding the first sentence of
this Section 11(e), any adjustment required by this Sec-
tion 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 the
Preferred Stock, thereafter the Purchase Price and the
number of such other shares so receivable upon exercise
of a Right shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the
Preferred Stock contained in Sections 11(a), 11(b),
11(c), 11(e), 11(h), 11(i) and 11(m) and the provisions
of Sections 7, 9, 10, 13 and 14 hereof with respect to
the Preferred Stock shall apply on like terms to any such
other shares.
(g) All Rights originally issued by the Company
subsequent to any adjustment made to the Purchase Price
hereunder shall evidence the right to purchase, at the
adjusted Purchase Price, the number of one one-hundredths
of a share of Preferred Stock purchasable from time to
time hereunder upon exercise of the Rights, all subject
to further adjustment as provided herein.
(h) Unless the Company shall have exercised
its election as provided in Section 11(i), upon each
adjustment of the Purchase Price as a result of the
calculations made in Sections 11(b) and (c), each Right
outstanding immediately prior to the making of such
adjustment shall thereafter evidence the right to
purchase, at the adjusted Purchase Price, that number of
one one-hundredths of a share of Preferred Stock (cal-
culated to the nearest one ten- thousandth of a share of
Preferred Stock) obtained by (i) multiplying (x) the
number of one one-hundredths of a share covered by a
Right immediately prior to such adjustment by (y) the
Purchase Price in effect immediately prior to such
adjustment of the Purchase Price and (ii) dividing the
product so obtained by the Purchase Price in effect
immediately after such adjustment of the Purchase Price.
(i) The Company may elect on or after the date
of any adjustment of the Purchase Price to adjust the
number of Rights, in substitution for any adjustment in
the number of one one-hundredths of a share of Preferred
Stock purchasable upon the exercise of a Right. Each of
the Rights outstanding after such adjustment of the
number of Rights shall be exercisable for the number of
one one-hundredths of a share of Preferred Stock for
which a Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such
adjustment of the number of Rights shall become that
number of Rights (calculated to the nearest one
ten-thousandth) obtained by dividing the Purchase Price
in effect immediately prior to adjustment of the Purchase
Price by the Purchase Price in effect immediately after
adjustment of the Purchase Price. The Company shall make
a public announcement of its election to adjust the
number of Rights, indicating the record date for the
adjustment, and, if known at the time, the amount of the
adjustment to be made. This record date may be the date
on which the Purchase Price is adjusted or any day
thereafter, but, if the Right Certificates have been
issued, shall be at least 10 days later than the date of
the public announcement. If Right Certificates have been
issued, upon each adjustment of the number of Rights
pursuant to this Section 11(i), the Company may, as
promptly as practicable, cause to be distributed to
holders of record of Right Certificates on such record
date Right Certificates evidencing, subject to Section 14
hereof, the additional Rights to which such holders shall
be entitled as a result of such adjustment, or, at the
option of the Company, shall cause to be distributed to
such holders of record in substitution and replacement
for the Right Certificates held by such holders prior to
the date of adjustment, and upon surrender thereof, if
required by the Company, new Right Certificates
evidencing all the Rights to which such holders shall be
entitled after such adjustment. Right Certificates so to
be distributed shall be issued, executed and
countersigned in the manner provided for herein and shall
be registered in the names of the holders of record of
Right Certificates on the record date specified in the
public announcement.
(j) Irrespective of any adjustment or change in
the Purchase Price or the number of one one-hundredths of
a share of Preferred Stock issuable upon the exercise of
the Rights, the Right Certificates theretofore and
thereafter issued may continue to express the Purchase
Price and the number of one one-hundredths of a share of
Preferred Stock which were expressed in the initial Right
Certificates issued hereunder.
(k) Before taking any action that would cause an
adjustment reducing the Purchase Price below the then par
value, if any, of the Preferred Stock or other shares of
capital stock issuable upon exercise of the Rights, the
Company shall take any corporate action which may, in the
opinion of its counsel, be necessary in order that the
Company may validly and legally issue fully paid and
nonassessable shares of Preferred Stock or other such
shares at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall
require that an adjustment in the Purchase Price be made
effective as of a record date for a specified event, the
Company may elect to defer until the occurrence of such
event the issuing to the holder of any Right exercised
after such record date of the Preferred Stock and other
capital stock or securities of the Company, if any,
issuable upon such exercise over and above the Preferred
Stock and other capital stock or securities of the
Company, if any, issuable upon such exercise on the basis
of the Purchase Price in effect prior to such adjustment;
provided, however, that the Company shall deliver to such
holder a due bill or other appropriate instrument
evidencing such holder's right to receive such additional
shares upon the occurrence of the event requiring such
adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make
such reductions in the Purchase Price, in addition to
those adjustments expressly required by this Section 11,
as and to the extent that it in its sole discretion shall
determine to be advisable in order that any consolidation
or subdivision of the Preferred Stock, issuance wholly
for cash of any shares of Preferred Stock at less than
the current market price, issuance wholly for cash or
Preferred Stock or securities which by their terms are
convertible into or exchangeable for Preferred Stock,
dividends on Preferred Stock payable in shares of
Preferred Stock or issuance of rights, options or
warrants referred to hereinabove in Section 11(b),
hereafter made by the Company to holders of its Preferred
Stock shall not be taxable to such stockholders.
(n) Anything in this Agreement to the contrary
notwithstanding, in the event that at any time after the
date of this Agreement and prior to the Distribution
Date, the Company shall (i) declare or pay any dividend
on the Common Stock payable in Common Stock or (ii)
effect a subdivision, combination or consolidation of the
Common Stock (by reclassification or otherwise than by
payment of a dividend payable in Common Stock) into a
greater or lesser number of Common Stock, then in any
such case, the number of Rights associated with each
share of Common Stock then outstanding, or issued or
delivered thereafter, shall be proportionately adjusted
so that the number of Rights thereafter associated with
each share of Common Stock following any such event shall
equal the result obtained by multiplying the number of
Rights associated with each share of Common Stock
immediately prior to such event by a fraction the
numerator of which shall be the total number of shares of
Common Stock outstanding immediately prior to the
occurrence of the event and the denominator of which
shall be the total number of shares of Common Stock
outstanding immediately following the occurrence of such
event.
(o) The Company agrees that, after the earlier
of the Distribution Date or the Stock Acquisition Date,
it will not, except as permitted by Sections 23, 24 or 27
hereof, take (or permit any Subsidiary to take) any
action if at the time such action is taken it is
reasonably foreseeable that such action will diminish
substantially or eliminate the benefits intended to be
afforded by the Rights.
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 Stock or the Preferred Stock 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 (if so required
under Section 25 hereof). The Rights Agent shall be fully
protected in relying on any such certificate and on any
adjustment therein contained and shall not be deemed to have
knowledge of any such adjustment unless and until it shall have
received such certificate.
Section 13. Consolidation, Merger or Sale or Transfer of
Assets or Earnings Power. (a) In the event, directly or
indirectly, at any time after any Person has become an Acquiring
Person, (i) the Company shall merge with and into any other
Person, (ii) any Person shall consolidate with the Company, or
any Person shall merge with and into the Company and the Company
shall be the continuing or surviving corporation of such merger
and, in connection with such merger, all or part of the Common
Stock shall be changed into or exchanged for stock or other
securities of any other Person (or of the Company) or cash or
any other property, or (iii) the Company shall sell or otherwise
transfer (or one or more of its Subsidiaries shall sell or
otherwise transfer), in one or more transactions, assets or
earning power aggregating 50% or more of the assets or earning
power of the Company and its Subsidiaries (taken as a whole) to
any other Person (other than the Company or one or more of its
wholly-owned Subsidiaries), then upon the first occurrence of
such event, proper provision shall be made so that: (A) each
holder of record of a Right (other than Rights which have become
void pursuant to Section 11(a)(ii)) shall thereafter have the
right to receive, upon the exercise thereof at a price equal to
the then current Purchase Price multiplied by the number of one
one-hundredths of a share of Preferred Stock for which a Right
was exercisable (whether or not such Right was then exercisable)
immediately prior to the time that any Person first became an
Acquiring Person (each as subsequently adjusted thereafter
pursuant to Sections 11(a)(i), 11(b), 11(c), 11(h), 11(i) and
11(m)), in accordance with the terms of this Agreement and in
lieu of Preferred Stock, such number of validly issued, fully
paid and non-assessable and freely tradeable shares of Common
Stock of the Principal Party (as defined herein) not subject to
any liens, encumbrances, rights of first refusal or other
adverse claims, as shall be equal to the result obtained by (1)
multiplying the then current Purchase Price by the number of one
one-hundredths of a share of Preferred Stock for which a Right
was exercisable immediately prior to the time that any Person
first became an Acquiring Person (as subsequently adjusted
thereafter pursuant to Sections 11(a)(i), 11(b), 11(c), 11(h),
11(i) and 11(m)) and (2) dividing that product by 50% of the
then current per share market price of the Common Stock of such
Principal Party (determined pursuant to Section 11(d)(i) hereof)
on the date of consummation of such consolidation, merger, sale
or transfer; provided that the Purchase Price and the number of
shares of Common Stock of such Principal Party issuable upon
exercise of each Right shall be further adjusted as provided in
Section 11(f) of this Agreement to reflect any events occurring
in respect of such Principal Party after the date of the such
consolidation, merger, sale or transfer; (B) such Principal
Party shall thereafter be liable for, and shall assume, by
virtue of such consolidation, merger, sale or transfer, all the
obligations and duties of the Company pursuant to this
Agreement; (C) the term "Company" shall thereafter be deemed to
refer to such Principal Party; and (D) such Principal Party
shall take such steps (including, but not limited to, the
reservation of a sufficient number of its shares of Common Stock
in accordance with Section 9 hereof) in connection with such
consummation of any such transaction as may be necessary to
assure that the provisions hereof shall thereafter be ap-
plicable, as nearly as reasonably may be, in relation to the
shares of its Common Stock thereafter deliverable upon the
exercise of the Rights; provided that, upon the subsequent
occurrence of any consolidation, merger, sale or transfer of
assets or other extraordinary transaction in respect of such
Principal Party, each holder of a Right shall thereupon be
entitled to receive, upon exercise of a Right and payment of the
Purchase Price as provided in this Section 13(a), such cash,
shares, rights, warrants and other property which such holder
would have been entitled to receive had such holder, at the time
of such transaction, owned the Common Stock of the Principal
Party receivable upon the exercise of a Right pursuant to this
Section 13(a), and such Principal Party shall take such steps
(including, but not limited to, reservation of shares of stock)
as may be necessary to permit the subsequent exercise of the
Rights in accordance with the terms hereof for such cash,
shares, rights, warrants and other property.
(b) "Principal Party" shall mean
(i) in the case of any transaction described
in (i) or (ii) of the first sentence of Section 13(a)
hereof: (A) the Person that is the issuer of the
securities into which the shares of Common Stock are
converted in such merger or consolidation, or, if there
is more than one such issuer, the issuer the shares of
Common Stock of which have the greatest aggregate market
value of shares outstanding, or (B) if no securities are
so issued, (x) the Person that is the other party to the
merger, if such Person survives said merger, or, if there
is more than one such Person, the Person the shares of
Common Stock of which have the greatest aggregate market
value of shares outstanding or (y) if the Person that is
the other party to the merger does not survive the
merger, the Person that does survive the merger
(including the Company if it survives) or (z) the Person
resulting from the consolidation; and
(ii) in the case of any transaction described
in (iii) of the first sentence in Section 13(a) hereof,
the Person that is the party receiving the greatest
portion of the assets or earning power transferred
pursuant to such transaction or transactions, or, if each
Person that is a party to such transaction or
transactions receives the same portion of the assets or
earning power so transferred or if the Person receiving
the greatest portion of the assets or earning power
cannot be determined, whichever of such Persons as is the
issuer of Common Stock having the greatest aggregate
market value of shares outstanding; provided, however,
that in any such case described in the foregoing clause
(b)(i) or (b)(ii), if the Common Stock of such Person is
not at such time or has not been continuously over the
preceding 12-month period registered under Section 12 of
the Exchange Act, then (1) if such Person is a direct or
indirect Subsidiary of another Person the Common Stock of
which is and has been so registered, the term "Principal
Party" shall refer to such other Person, or (2) if such
Person is a Subsidiary, directly or indirectly, of more
than one Person, and the Common Stocks of all of such
persons have been so registered, the term "Principal
Party" shall refer to whichever of such Persons is the
issuer of Common Stock having the greatest aggregate
market value of shares outstanding, or (3) if such Person
is owned, directly or indirectly, by a joint venture
formed by two or more Persons that are not owned,
directly or indirectly, by the same Person, the rules set
forth in clauses (1) and (2) above shall apply to each of
the owners having an interest in the venture as if the
Person owned by the joint venture was a Subsidiary of
both or all of such joint venturers, and the Principal
Party in each such case shall bear the obligations set
forth in this Section 13 in the same ratio as its
interest in such Person bears to the total of such
interests.
(c) The Company shall not consummate any consolidation,
merger, sale or transfer referred to in Section 13(a) hereof
unless prior thereto the Company and the Principal Party
involved therein shall have executed and delivered to the Rights
Agent an agreement confirming that the requirements of Sections
13(a) and (b) hereof shall promptly be performed in accordance
with their terms and that such consolidation, merger, sale or
transfer of assets shall not result in a default by the
Principal Party under this Agreement as the same shall have been
assumed by the Principal Party pursuant to Sections 13(a) and
(b) hereof and providing that, as soon as practicable after
executing such agreement pursuant to this Section 13, the
Principal Party will:
(i) prepare and file a registration statement
under the Securities Act, if necessary, with respect to
the Rights and the securities purchasable upon exercise
of the Rights on an appropriate form, use its best
efforts to cause such registration statement to become
effective as soon as practicable after such filing and
use its best efforts to cause such registration statement
to remain effective (with a prospectus at all times
meeting the requirements of the Securities Act) until the
Final Expiration Date, and similarly comply with
applicable state securities laws;
(ii) use its best efforts, if the Common Stock of
the Principal Party shall be listed or admitted to
trading on the New York Stock Exchange or on another
national securities exchange, to list or admit to trading
(or continue the listing of) the Rights and the
securities purchasable upon exercise of the Rights on the
New York Stock Exchange or such securities exchange, or,
if the Common Stock of the Principal Party shall not be
listed or admitted to trading on the New York Stock
Exchange or a national securities exchange, to cause the
Rights and the securities receivable upon exercise of the
Rights to be reported by such other system then in use;
(iii) deliver to holders of the Rights historical
financial statements for the Principal Party which comply
in all respects with the requirements for registration on
Form 10 (or any successor form) under the Exchange Act;
and
(iv) obtain waivers of any rights of first
refusal or preemptive rights in respect of the Common
Stock of the Principal Party subject to purchase upon
exercise of outstanding Rights.
(d) In case the Principal Party has provision in any of
its authorized securities or in its certificate of incorporation
or by-laws or other instrument governing its corporate affairs,
which provision would have the effect of (i) causing such
Principal Party to issue (other than to holders of Rights
pursuant to this Section 13), in connection with, or as a
consequence of, the consummation of a transaction referred to in
this Section 13, shares of Common Stock of such Principal Party
at less than the then current market price per share thereof
(determined pursuant to Section 11(d) hereof) or securities
exercisable for, or convertible into, Common Stock of such
Principal Party at less than such then current market price, or
(ii) providing for any special payment, tax or similar provision
in connection with the issuance of the Common Stock of such
Principal Party pursuant to the provisions of Section 13, then,
in such event, the Company hereby agrees with each holder of
Rights that it shall not consummate any such transaction unless
prior thereto the Company and such Principal Party shall have
executed and delivered to the Rights Agent a supplemental
agreement providing that the provision in question of such
Principal Party shall have been cancelled, waived or amended, or
that the authorized securities shall be redeemed, so that the
applicable provision will have no effect in connection with, or
as a consequence of, the consummation of the proposed
transaction.
(e) The Company covenants and agrees that it shall not,
at any time after a Person first becomes an Acquiring Person
enter into any transaction of the type contemplated by (i) -
(iii) of Section 13(a) hereof if (x) at the time of or
immediately after such consolidation, merger, sale, transfer or
other transaction there are any rights, warrants or other
instruments or securities outstanding or agreements in effect
which would substantially diminish or otherwise eliminate the
benefits intended to be afforded by the Rights, (y) prior to,
simultaneously with or immediately after such consolidation,
merger, sale, transfer of other transaction, the stockholders of
the Person who constitutes, or would constitute, the Principal
Party for purposes of Section 13(a) hereof shall have received
a distribution of Rights previously owned by such Person or any
of its Affiliates or Associates or (z) the form or nature of
organization of the Principal Party would preclude or limit the
exercisability of the Rights.
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 (except prior to the Distribution Date in
accordance with Section 11(n) hereof). 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 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 Preferred Stock (other than fractions which are integral
multiples of one one-hundredth of a share of Preferred Stock)
upon exercise of the Rights or to distribute certificates which
evidence fractional shares of Preferred Stock (other than
fractions which are integral multiples of one one-hundredth of
a share of Preferred Stock). Interests in fractions of
Preferred Stock in integral multiples of one one-hundredth of a
share of Preferred Stock may, at the election of the Company, be
evidenced by depositary receipts, pursuant to an appropriate
agreement between the Company and a depositary selected by it;
provided, that such agreement shall provide that the holders of
such depositary receipts shall have all the rights, privileges
and preferences to which they are entitled as beneficial owners
of the Preferred Stock represented by such depositary receipts.
In lieu of fractional shares of Preferred Stock that are not
integral multiples of one one-hundredth of a share of Preferred
Stock, the Company 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 share of Preferred Stock. For the
purposes of this Section 14(b), the current market value of a
share of Preferred Stock shall be the closing price of a share
of Preferred Stock (as determined pursuant to Section 11(d)(i)
hereof) for the Trading Day immediately prior to the date of
such exercise.
(c) The Company shall not be required to issue fractions
of shares of Common Stock or to distribute certificates which
evidence fractional shares of Common Stock upon the exercise or
exchange of Rights. In lieu of such fractional shares of Common
Stock, the Company shall pay to the registered holders of the
Right Certificates with regard to which such fractional shares
of Common Stock would otherwise be issuable an amount in cash
equal to the same fraction of the current market value of a
whole share of Common Stock (as determined in accordance with
Section 14(a) hereof) for the Trading Day immediately prior to
the date of such exercise or exchange.
(d) 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).
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 Stock); and any registered holder of any Right
Certificate (or, prior to the Distribution Date, of the Common
Stock), without the consent of the Rights Agent or of the holder
of any other Right Certificate (or, prior to the Distribution
Date, of the Common Stock), on his own behalf and for his own
benefit, may enforce, and may institute and maintain any suit,
action or proceeding against the Company to enforce, or
otherwise act in respect of, his right to exercise the Rights
evidenced by such Right Certificate (or, prior to the
Distribution Date, such Common Stock) 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 Stock;
(b) after the Distribution Date, the Right Certificates
are transferable only on the registry books of the Rights
Agent if surrendered at the office or agency of the
Rights Agent designated for such purpose, duly endorsed
or accompanied by a proper instrument of transfer; and
(c) the Company and the Rights Agent may deem and treat
the Person in whose name the Right Certificate (or, prior
to the Distribution Date, the Common Stock certificate)
is registered as the absolute owner thereof and of the
Rights evidenced thereby (notwithstanding any notations
of ownership or writing on the Right Certificates or the
Common Stock certificate made by anyone other than the
Company or the Rights Agent) for all purposes whatsoever,
and neither the Company nor the Rights Agent 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 Preferred Stock or any other
securities of the Company which may at any time be issuable on
the exercise of the Rights represented thereby, nor shall
anything contained herein or in any Right Certificate be
construed to confer upon the holder of any Right Certificate, as
such, any of the rights of a stockholder of the Company or any
right to vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice
of meetings or other actions affecting stockholders (except as
provided in this Agreement), or to receive dividends or
subscription rights, or otherwise, until the Rights evidenced by
such Right Certificate shall have been exercised in accordance
with the provisions hereof.
Section 18. Concerning the Rights Agent. (a) The
Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from
time to time, on demand of the Rights Agent, its reasonable
expenses and counsel fees and other disbursements incurred in
the administration and execution of this Agreement and the
exercise and performance of its duties hereunder. The Company
also agrees to indemnify the Rights Agent for, and to hold it
harmless against, any loss, liability or expense, incurred
without negligence, bad faith or willful misconduct on the part
of the Rights Agent, for anything done or omitted by the Rights
Agent in connection with the acceptance and administration of
this Agreement, including the costs and expenses of defending
against any claim of liability arising therefrom, directly or
indirectly.
(b) The Rights Agent shall be protected and shall incur
no liability for, or in respect of any action taken, suffered or
omitted by it in connection with, its administration of this
Agreement in reliance upon any Right Certificate or certificate
for the Preferred Stock or Common Stock or for other securities
of the Company, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction,
consent, certificate, statement, or other paper or document
believed by it to be genuine and to be signed, executed and,
where necessary, verified or acknowledged, by the proper Person
or Persons, or otherwise upon the advice of counsel as set forth
in Section 20 hereof.
Section 19. Merger or Consolidation or Change of Name of
Rights Agent. (a) Any corporation into which the Rights Agent
or any successor Rights Agent may be merged or with which it may
be consolidated, or any corporation resulting from any merger or
consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any corporation succeeding to the
stock transfer or corporate trust powers of the Rights Agent or
any successor Rights Agent, shall be the successor to the Rights
Agent under this Agreement without the execution or filing of
any paper or any further act on the part of any of the parties
hereto; provided, that such corporation would be eligible for
appointment as a successor Rights Agent under the provisions of
Section 21 hereof. In case at the time such successor Rights
Agent shall succeed to the agency created by this Agreement, any
of the Right Certificates shall have been countersigned but not
delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver
such Right Certificates so countersigned; and in case at that
time any of the Right Certificates shall not have been
countersigned, any successor Rights Agent may countersign such
Right Certificates either in the name of the predecessor Rights
Agent or in the name of the successor Rights Agent; and in all
such cases such Right Certificates shall have the full force
provided in the Right Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent
shall be changed and at such time any of the Right Certificates
shall have been countersigned but not delivered the Rights Agent
may adopt the countersignature under its prior name and deliver
Right Certificates so countersigned; and in case at that time
any of the Right Certificates shall not have been countersigned,
the Rights Agent may countersign such Right Certificates either
in its prior name or in its changed name and in all such cases
such Right Certificates shall have the full force provided in
the Right Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations imposed by this Agreement
upon the following terms and conditions, by all of which the
Company and the holders of Right Certificates, by their
acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal
counsel (who may be legal counsel for the Company), and
the opinion of such counsel shall be full and complete
authorization and protection to the Rights Agent as to
any action taken or omitted by it in good faith and in
accordance with such opinion.
(b) Whenever in the performance of its duties
under this Agreement the Rights Agent shall deem it
necessary or desirable that any fact or matter be proved
or established by the Company prior to taking or
suffering any action hereunder, such fact or matter
(unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by any one
of the Chairman of the Board of Directors, the President,
any Vice President, the Treasurer, the Controller 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 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 wilful misconduct.
(d) The Rights Agent shall not be liable for or
by reason of any of the statements of fact or recitals
contained in this Agreement or in the Right Certificates
(except its countersignature thereof) or be required to
verify the same, but all such statements and recitals are
and shall be deemed to have been made by the Company
only.
(e) The Rights Agent shall not be under any
responsibility in respect of the validity of this
Agreement or the execution and delivery hereof (except
the due execution hereof by the Rights Agent) or in
respect of the validity or execution of any Right
Certificate (except its countersignature thereof); nor
shall it be responsible for any breach by the Company of
any covenant or condition contained in this Agreement or
in any Right Certificate; nor shall it be responsible for
any change in the exercisability of the Rights (including
the Rights becoming void pursuant to Section 11(a)(ii)
hereof) or any adjustment in the terms of the Rights
(including the manner, method or amount thereof) provided
for in Sections 3, 11, 13, 23 and 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 receipt
of a certificate furnished pursuant to Section 12,
describing such change or adjustment); nor shall it by
any act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any
shares of Preferred Stock or other securities to be
issued pursuant to this Agreement or any Right
Certificate or as to whether any shares of Preferred
Stock or other securities will, when issued, be validly
authorized and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, ex-
ecute, 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 person
reasonably believed by the Rights Agent to be one of the
Chairman of the Board of Directors, the President, the
Chief Financial Officer or the Secretary of the Company,
and to apply to such officers for advice or instructions
in connection with its duties, and it shall not be liable
for any action taken or suffered by it in good faith in
accordance with instructions of any such officer or for
any delay in acting while waiting for those instructions.
Any application by the Rights Agent for written
instructions from the Company may, at the option of the
Rights Agent, set forth in writing any action proposed to
be taken or omitted by the Rights Agent under this
Agreement and the date on and/or after which such action
shall be taken or such omission shall be effective. The
Rights Agent shall not be liable for any action taken by,
or omission of, the Rights Agent in accordance with a
proposal included in any such application on or after the
date specified in such application (which date shall not
be less than five Business Days after the date any
officer of the Company actually receives such
application, unless any such officer shall have consented
in writing to an earlier date) unless, prior to taking
any such action (or the effective date in the case of an
omission), the Rights Agent shall have received written
instructions in response to such application specifying
the action to be taken or omitted.
(h) The Rights Agent and any stockholder, direc-
tor, officer or employee of the Rights Agent may buy,
sell or deal in any of the Rights or other securities of
the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or
contract with or lend money to the Company or otherwise
act as fully and freely as though it were not Rights
Agent under this Agreement. Nothing herein shall
preclude the Rights Agent from acting in any other
capacity for the Company or for any other legal entity.
(i) The Rights Agent may execute and exercise
any of the rights or powers hereby vested in it or
perform any duty hereunder either itself or by or through
its attorneys or agents, and the Rights Agent shall not
be answerable or accountable for any act, default,
neglect or misconduct of any such attorneys or agents or
for any loss to the Company resulting from any such act,
default, neglect or misconduct, provided reasonable care
was exercised in the selection and continued employment
thereof.
(j) If, with respect to any Rights Certificate
surrendered to the Rights Agent for exercise or transfer,
the certificate contained in the form of assignment or
the form of election to purchase set forth on the reverse
thereof, as the case may be, has not been completed to
certify the holder is not an Acquiring Person (or an
Affiliate or Associate thereof), the Rights Agent shall
not take any further action with respect to such
requested exercise or transfer without first consulting
with the Company.
Section 21. Change of Rights Agent. The Rights Agent or
any successor Rights Agent may resign and be discharged from its
duties under this Agreement upon 30 days' notice in writing
mailed to the Company and to each transfer agent of the Common
Stock or Preferred Stock by registered or certified mail, and,
following the Distribution Date, 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 Stock or Preferred Stock by registered or certified mail,
and, following the Distribution Date, 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 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 any
State thereof, 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
Stock or Preferred Stock, and, following the Distribution Date,
mail a notice thereof in writing to the registered holders of
the Right Certificates. Failure to give any notice provided for
in this Section 21, however, or any defect therein, shall not
affect the legality or validity of the resignation or removal of
the Rights Agent or the appointment 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 forms 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 pur-
chasable under the Right Certificates made in accordance with
the provisions of this Agreement. In addition, in connection
with the issuance or sale of Common Stock following the
Distribution Date and prior to the earlier of the Redemption
Date and the Final Expiration Date, the Company may with respect
to shares of Common Stock so issued or sold pursuant to (i) the
exercise of stock options, (ii) under any employee plan or
arrangement, (iii) upon the exercise, conversion or exchange of
securities, notes or debentures issued by the Company or (iv) a
contractual obligation of the Company in each case existing
prior to the Distribution Date, issue Rights Certificates
representing the appropriate number of Rights in connection with
such issuance or sale.
Section 23. Redemption. (a) The Board of Directors of
the Company may, at any time prior to such time as any Person
first 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 transaction occurring after the date
hereof (the redemption price being hereinafter referred to as
the "Redemption Price"). The redemption of the Rights may be
made effective at such time, on such basis and with such con-
ditions as the Board of Directors in its sole discretion may
establish. The Company may, at its option, pay the Redemption
Price in cash, shares of Common Stock (based on the current
market price of the Common Stock at the time of redemption) or
any other form of consideration deemed appropriate by the Board
of Directors.
(b) Immediately upon the action of the Board of
Directors ordering the redemption of the Rights pursuant to
paragraph (a) of this Section 23 (or at such later time as the
Board of Directors may establish for the effectiveness of such
redemption), and without any further action and without any
notice, the right to exercise the Rights will terminate and the
only right thereafter of the holders of Rights shall be to
receive the Redemption Price. The Company shall promptly give
public notice of any such redemption; provided, however, that
the failure to give, or any defect in, any such notice shall not
affect the validity of such redemption. Within 10 days after
such action of the Board of Directors ordering the redemption of
the Rights (or such later time as the Board of Directors may
establish for the effectiveness of such redemption), 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 Dis-
tribution Date, on the registry books of the transfer agent for
the Common Stock. Any notice which is mailed in the manner
herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of redemption shall state
the method by which the payment of the Redemption Price will be
made.
Section 24. Exchange. (a) The Board of Directors of
the Company may, at its option, at any time after any Person
first becomes an Acquiring Person, exchange all or part of the
then outstanding and exercisable Rights (which shall not include
Rights that have not become effective or that have become void
pursuant to the provisions of Section 11(a)(ii) hereof) for
shares of Common Stock at an exchange ratio of one share of
Common Stock per Right, appropriately adjusted to reflect any
stock split, stock dividend or similar transaction occurring
after the date hereof (such amount per Right 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 (1) after any Person (other
than an Exempt Person), together with all Affiliates and
Associates of such Person, becomes the Beneficial Owner of
shares of Common Stock aggregating 50% or more of the shares of
Common Stock then outstanding. From and after the occurrence of
an event specified in Section 13(a) hereof, any Rights that
theretofore have not been exchanged pursuant to this Section
24(a) shall thereafter be exercisable only in accordance with
Section 13 and may not be exchanged pursuant to this Section
24(a). The exchange 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 effectiveness of the action of
the Board of Directors of the Company ordering the exchange of
any Rights pursuant to paragraph (a) of this Section 24 and
without any further action and without any notice, the right to
exercise such Rights shall terminate and the only right
thereafter of a holder of such Rights shall be to receive that
number of shares of Common Stock equal to the number of such
Rights held by such holder multiplied by the Exchange Ratio.
The Company shall promptly give public notice of any such
exchange; provided, however, that the failure to give, or any
defect in, such notice shall not affect the validity of such
exchange. The Company shall promptly mail a notice of any such
exchange to all of the holders of the Rights so exchanged at
their last addresses as they appear upon the registry books of
the Rights Agent. Any notice which is mailed in the manner
herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of exchange will state
the method by which the exchange of the shares of Common Stock
for Rights will be effected and, in the event of any partial
exchange, the number of Rights which will be exchanged. Any
partial exchange shall be effected pro rata based on the number
of Rights (other than Rights which have become void pursuant to
the provisions of Section 11(a)(ii) hereof) held by each holder
of Rights.
(c) The Company may at its option and in the event that
there shall not be sufficient shares of Common Stock issued but
not outstanding or authorized but unissued to permit an exchange
of Rights as contemplated in accordance with this Section 24,
the Company shall substitute to the extent of such
insufficiency, for each share of Common Stock that would
otherwise be issuable upon exchange of a Right, a number of
shares of Preferred Stock or fraction thereof (or equivalent
preferred shares as such term is defined in Section 11(b)) such
that the current per share market price (determined pursuant to
Section 11(d) hereof) of one share of Preferred Stock (or
equivalent preferred share) multiplied by such number or
fraction is equal to the current per share market price of one
share of Common Stock (determined pursuant to Section 11(d)
hereof) as of the date of such exchange.
Section 25. Notice of Certain Events. (a) In case the
Company shall at any time after the earlier of the Distribution
Date or the Stock Acquisition Date propose (i) to pay any
dividend payable in stock of any class to the holders of its
Preferred Stock or to make any other distribution to the holders
of its Preferred Stock (other than a regular quarterly cash
dividend), (ii) to offer to the holders of its Preferred Stock
rights or warrants to subscribe for or to purchase any
additional shares of Preferred Stock or shares of stock of any
class or any other securities, rights or options, (iii) to
effect any reclassification of its Preferred Stock (other than
a reclassification involving only the subdivision or combination
of outstanding Preferred Stock), (iv) to effect the liquidation,
dissolution or winding up of the Company, or (v) to declare or
pay any dividend on the Common Stock payable in Common Stock or
to effect a subdivision, combination or consolidation of the
Common Stock (by reclassification or otherwise than by payment
of dividends in Common Stock), then, in each such case, the
Company shall give to each holder of a Right Certificate, in
accordance with Section 26 hereof, a notice of such proposed
action, which shall specify the record date for the purposes of
such stock dividend, or distribution of rights or warrants, or
the date on which such liquidation, dissolution or winding up is
to take place and the date of participation therein by the
holders of the Common Stock and/or Preferred Stock, if any such
date is to be fixed, and such notice shall be so given in the
case of any action covered by clause (i) or (ii) above at least
10 days prior to the record date for determining holders of the
Preferred Stock 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 Stock and/or Preferred
Stock, whichever shall be the earlier.
(b) In case any event described in Section 11(a)(ii) or
Section 13 shall occur then the Company shall as soon as
practicable thereafter give to each holder of a Right
Certificate (or if occurring prior to the Distribution Date, the
holders of the Common Stock) in accordance with Section 26
hereof, a notice of the occurrence of such event, which notice
shall describe such event and the consequences of such event to
holders of Rights under Section 11(a)(ii) and Section 13 hereof.
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:
Kerr-McGee Corporation
P.O. Box 25861
Oklahoma City, Oklahoma 73125
Attention: General Counsel
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:
Liberty Bank and Trust Company
of Oklahoma City, N.A.
100 North Broadway
Oklahoma City, Oklahoma 73102
Attention: Stock Transfer Department
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.
Section 27. Supplements and Amendments. Except as
otherwise provided in this Section 27, for so long as the Rights
are then redeemable, the Company may in its sole and absolute
discretion, and the Rights Agent shall if the Company so
directs, supplement or amend any provision of this Agreement in
any respect without the approval of any holders of the Rights.
At any time when the Rights are no longer redeemable, except as
otherwise provided in this Section 27, the Company may, and the
Rights Agent shall, if the Company so directs, supplement or
amend this Agreement without the approval of any holders of
Rights Certificates in order to (i) cure any ambiguity, (ii)
correct or supplement any provision contained herein which may
be defective or inconsistent with any other provisions herein,
(iii) shorten or lengthen any time period hereunder, or (iv)
change or supplement the provisions hereunder in any manner
which the Company may deem necessary or desirable; provided that
no such supplement or amendment shall adversely affect the
interests of the holders of Rights as such (other than an
Acquiring Person or an Affiliate or Associate of an Acquiring
Person), and no such amendment may cause the rights again to
become redeemable or cause the Agreement again to become
amendable other than in accordance with this sentence.
Notwithstanding anything contained in this Agreement to the
contrary, no supplement or amendment shall be made which
decreases the Redemption Price. Upon the delivery of a
certificate from an appropriate officer of the Company which
states that the proposed supplement or amendment is in
compliance with the terms of this Section 27, the Rights Agent
shall execute such supplement or amendment.
Section 28. Successors. All the covenants and
provisions of this Agreement by or for the benefit of the
Company or the Rights Agent shall bind and inure to the benefit
of their respective successors and assigns hereunder.
Section 29. Benefits of this Agreement. Nothing in this
Agreement shall be construed to give to any Person other than
the Company, the Rights Agent and the registered holders of the
Right Certificates (and, prior to the Distribution Date, the
Common Stock) any legal or equitable right, remedy or claim
under this Agreement; but this Agreement shall be for the sole
and exclusive benefit of the Company, the Rights Agent and the
registered holders of the Right Certificates (and, prior to the
Distribution Date, the Common Stock).
Section 30. Determinations and Actions by the Board of
Directors. The Board of Directors of the Company shall have the
exclusive power and authority to administer this Agreement and
to exercise the rights and powers specifically granted to the
Board of Directors of the Company or to the Company, or as may
be necessary or advisable in the administration of this
Agreement, including, without limitation, the right and power to
(i) interpret the provisions of this Agreement and (ii) make all
determinations deemed necessary or advisable for the
administration of this Agreement (including, without limitation,
a determination to redeem or not redeem the Rights or to amend
this Agreement). All such actions, calculations,
interpretations and determinations (including, for purposes of
clause (y) below, all omissions with respect to the foregoing)
that are done or made by the Board of Directors of the Company
in good faith, shall (x) be final, conclusive and binding on the
Company, the Rights Agent, the holders of the Rights, as such,
and all other parties, and (y) not subject the Board of
Directors to any liability to the holders of the Rights.
Section 31. Severability. If any term, provision,
covenant or restriction of this Agreement or applicable to this
Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no
way be affected, impaired or invalidated.
Section 32. Governing Law. This Agreement and each
Right Certificate issued hereunder shall be deemed to be a
contract made under the laws of the State of Delaware and for
all purposes shall be governed by and construed in accordance
with the laws of such State applicable to contracts to be made
and performed entirely within such State.
Section 33. Counterparts. This Agreement may be
executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute but one and
the same instrument.
Section 34. Descriptive Headings. Descriptive headings
of the several Sections of this Agreement are inserted for
convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and attested, all as of the day
and year first above written.
Attest: KERR-MCGEE CORPORATION
By (TOM McDANIEL) By (FRANK A. McPHERSON)
Name: Tom McDaniel Name: Frank A. McPherson
Title: Secretary Title: Chairman of the
Board and Chief
Executive Officer
LIBERTY BANK AND TRUST
COMPANY OF OKLAHOMA CITY,
N.A.
Attest:
By (E. SCHULER) By (JOHN H. BROWN)
Name: E. Schuler Name: John H. Brown
Title: Assistant Vice Title: Senior Vice
President President
<PAGE>
Exhibit A
FORM
OF
CERTIFICATE OF DESIGNATION
OF
SERIES B JUNIOR PARTICIPATING PREFERRED STOCK
OF
KERR-MCGEE CORPORATION
(Pursuant to Section 151 of the
General Corporation Law of the State of Delaware)
Kerr-McGee Corporation, a corporation organized and
existing under the General Corporation Law of the State of
Delaware (hereinafter called the "Company"), hereby certifies
that the following resolution was duly adopted by the Board of
Directors of the Company as required by Section 151 of the
General Corporation Law of the State of Delaware at a meeting
duly called and held on July 9, 1996:
RESOLVED, that pursuant to the authority granted to and
vested in the Board of Directors of the Company (hereinafter
called the "Board of Directors" or the "Board") in accordance
with the provisions of the Company's Certificate of
Incorporation, as amended to date (hereinafter called the
"Certificate of Incorporation"), the Board of Directors hereby
creates a series of Preferred Stock, without par value, of the
Company and hereby states the designation and number of shares,
and fixes the relative rights, powers and preferences thereof,
and the limitations thereof, as follows:
Section 1. Designation and Amount. The shares of such
series shall be designated as "Series B Junior Participating
Preferred Stock" (the "Series B Preferred Stock") and the number
of shares constituting the Series B Preferred Stock shall be
1,000,000. Such number of shares may be increased or decreased
by resolution of the Board of Directors; provided, that no
decrease shall reduce the number of shares of Series B Preferred
Stock to a number less than the number of shares then
outstanding plus the number of shares reserved for issuance upon
the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the
Company convertible into Series B Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares
of any series of Preferred Stock of the Company (the "Preferred
Stock") (or any similar stock) ranking prior and superior to the
Series B Preferred Stock with respect to dividends, the holders
of shares of Series B Preferred Stock, in preference to the
holders of Common Stock, par value $1.00 per share of the
Company (the "Common Stock") and of any other stock of the
Company ranking junior to the Series B Preferred Stock, shall be
entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose,
quarterly dividends payable in cash on the last day of January,
April, July, and October in each year (each such date being
referred to herein as a "Dividend Payment Date"), commencing on
the first Dividend Payment Date after the first issuance of a
share or fraction of a share of Series B Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the
greater of (a) $1 or (b) subject to the provision for adjustment
hereinafter set forth, 100 times the aggregate per share amount
of all cash dividends, and 100 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other
distributions other than a dividend payable in shares of Common
Stock, declared on the Common Stock since the immediately
preceding Dividend Payment Date or, with respect to the first
Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series B Preferred Stock. In the event
the Company shall at any time after July 9, 1996 declare or pay
any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification
or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the amount to which holders of
shares of Series B Preferred Stock were entitled immediately
prior to such event under clause (b) of the preceding sentence
shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) The Company shall declare a dividend or distribution
on the Series B Preferred Stock as provided in paragraph (A) of
this Section immediately after it declares a dividend or
distribution on the Common Stock (other than a dividend payable
in shares of Common Stock); provided that, in the event no
dividend or distribution shall have been declared on the Common
Stock during the period between any Dividend Payment Date and
the next subsequent Dividend Payment Date, a dividend of $1 per
share on the Series B Preferred Stock shall nevertheless be
payable, when, as and if declared, on such subsequent Dividend
Payment Date.
(C) Dividends shall begin to accrue and be cumulative,
whether or not earned or declared, on outstanding shares of
Series B Preferred Stock from the Dividend Payment Date next
preceding the date of issue of such shares, unless the date of
issue of such shares is prior to the record date for the first
Dividend Payment Date, in which case dividends on such shares
shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Dividend Payment Date or is a date
after the record date for the determination of holders of shares
of Series B Preferred Stock entitled to receive a quarterly
dividend and before such Dividend Payment Date, in either of
which events such dividends shall begin to accrue and be
cumulative from such Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares
of Series B Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such
shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders
of shares of Series B Preferred Stock entitled to receive
payment of a dividend or distribution declared thereon, which
record date shall be not more than 60 days prior to the date
fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of
Series B Preferred Stock shall have the following voting rights;
(A) Subject to the provision for adjustment
hereinafter set forth and except as otherwise provided in
the Certificate of Incorporation or required by law, each
share of Series B Preferred Stock shall entitle the
holder thereof to 100 votes on all matters upon which the
holders of the Common Stock of the Company are entitled
to vote. In the event the Company shall at any time
after July 9, 1996 declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect
a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification
or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares
of Common Stock, then in each such case the number of
votes per share to which holders of shares of Series B
Preferred Stock were entitled immediately prior to such
event shall be adjusted by multiplying such number by a
fraction, the numerator of which is the number of shares
of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to
such event.
(B) Except as otherwise provided herein, in the
Certificate of Incorporation or in any other Certificate
of Designations creating a series of Preferred Stock or
any similar stock, and except as otherwise required by
law, the holders of shares of Series B Preferred Stock
and the holders of shares of Common Stock and any other
capital stock of the Company having general voting rights
shall vote together as one class on all matters submitted
to a vote of stockholders of the Company.
(C) Except as set forth herein, or as otherwise
provided by law, holders of Series B Preferred Stock
shall have no special voting rights and their consent
shall not be required (except to the extent they are
entitled to vote with holders of Common Stock as set
forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other divi-
dends or distributions payable on the Series B Preferred
Stock as provided in Section 2 are in arrears, thereafter
and until all accrued and unpaid dividends and
distributions, whether or not earned or declared, on
shares of Series B Preferred Stock outstanding shall have
been paid in full, the Company shall not:
(i) declare or pay dividends, or make any
other distributions, on any shares of stock ranking
junior (as to dividends) to the Series B Preferred
Stock;
(ii) declare or pay dividends, or make any
other distributions, on any shares of stock ranking
on a parity (as to dividends) with the Series B
Preferred Stock, except dividends paid ratably on
the Series B Preferred Stock and all such parity
stock on which dividends are payable or in arrears
in proportion to the total amounts to which the
holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire
for consideration shares of any stock ranking
junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series B
Preferred Stock, provided that the Company may at
any time redeem, purchase or otherwise acquire
shares of any such junior stock in exchange for
shares of any stock of the Company ranking junior
(as to dividends and upon dissolution, liquidation
or winding up) to the Series B Preferred Stock or
rights, warrants or options to acquire such junior
stock;
(iv) redeem or purchase or otherwise acquire
for consideration any shares of Series B Preferred
Stock, or any shares of stock ranking on a parity
(either as to dividends or upon liquidation, dis-
solution or winding up) with the Series B Preferred
Stock, except in accordance with a purchase offer
made in writing or by publication (as determined by
the Board of Directors) to all holders of such
shares upon such terms as the Board of Directors,
after consideration of the respective annual
dividend rates and other relative rights and
preferences of the respective series and classes,
shall determine in good faith will result in fair
and equitable treatment among the respective series
or classes.
(B) The Company shall not permit any subsidiary of
the Company to purchase or otherwise acquire for
consideration any shares of stock of the Company unless
the Company could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time
and in such manner.
Section 5. Reacquired Shares. Any shares of Series
B Preferred Stock purchased or otherwise acquired by the Company
in any manner whatsoever shall be retired and cancelled promptly
after the acquisition thereof. All such shares shall upon their
retirement become authorized but unissued shares of Preferred
Stock and may be reissued as part of a new series of Preferred
Stock to be created by resolution or resolutions of the Board of
Directors, subject to any conditions and restrictions on
issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up.
Upon any liquidation, dissolution or winding up of the Company,
no distribution shall be made (A) to the holders of the Common
Stock or of shares of any other stock of the Company ranking
junior, upon liquidation, dissolution or winding up, to the
Series B Preferred Stock unless, prior thereto, the holders of
shares of Series B Preferred Stock shall have received $100 per
share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not earned or declared, to the
date of such payment, provided that the holders of shares of
Series B Preferred Stock shall be entitled to receive an
aggregate amount per share, subject to the provision for ad-
justment hereinafter set forth, equal to 100 times the
aggregate amount to be distributed per share to holders of
shares of Common Stock, or (B) to the holders of shares of stock
ranking on a parity upon liquidation, dissolution or winding up
with the Series B Preferred Stock, except distributions made
ratably on the Series B Preferred Stock and all such parity
stock in proportion to the total amounts to which the holders of
all such shares are entitled upon such liquidation, dissolution
or winding up. In the event, however, that there are not
sufficient assets available to permit payment in full of the
Series B liquidation preference and the liquidation preferences
of all other classes and series of stock of the Company, if any,
that rank on a parity with the Series B Preferred Stock in
respect thereof, then the assets available for such distribution
shall be distributed ratably to the holders of the Series B
Preferred Stock and the holders of such parity shares in the
proportion to their respective liquidation preferences. In the
event the Company shall at any time after July 9, 1996 declare
or pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the aggregate
amount to which holders of shares of Series B Preferred Stock
were entitled immediately prior to such event under the proviso
in clause (A) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior
to such event.
Section 7. Consolidation, Merger, etc. In case the
Company shall enter into any consolidation, merger, combination
or other transaction in which the shares of Common Stock are
converted into, exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such
case each share of Series B Preferred Stock shall at the same
time be similarly converted into, exchanged for or changed into
an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 100 times the aggregate amount
of stock, securities, cash and/or any other property (payable in
kind), as the case may be, into which or for which each share of
Common Stock is converted, exchanged or converted. In the event
the Company shall at any time after July 9, 1996 declare or pay
any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification
or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the amount set forth in the
preceding sentence with respect to the conversion, exchange or
change of shares of Series B Preferred Stock shall be adjusted
by multiplying such amount by a fraction, the numerator of which
is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior
to such event.
Section 8. No Redemption. The shares of Series B
Preferred Stock shall not be redeemable from any holder.
Section 9. Rank. The Series B Preferred Stock shall
rank, with respect to the payment of dividends and the
distribution of assets upon liquidation, dissolution or winding
up of the Company, junior to all other series of Preferred Stock
and senior to the Common Stock.
Section 10. Amendment. If any proposed amendment to
the Certificate of Incorporation (including this Certificate of
Designations) would alter, change or repeal any of the
preferences, powers or special rights given to the Series B
Preferred Stock so as to affect the Series B Preferred Stock
adversely, then the holders of the Series B Preferred Stock
shall be entitled to vote separately as a class upon such
amendment, and the affirmative vote of two-thirds of the
outstanding shares of the Series B Preferred Stock, voting
separately as a class, shall be necessary for the adoption
thereof, in addition to such other vote as may be required by
the General Corporation Law of the State of Delaware.
Section 11. Fractional Shares. Series B Preferred
Stock may be issued in fractions of a share that shall entitle
the holder, in proportion to such holder's fractional shares, to
exercise voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights of
holders of Series B Preferred Stock.
IN WITNESS WHEREOF, this Certificate of Designations is
executed on behalf of the Company by its Chairman of the Board
of Directors and attested by its Secretary this _____ day of
____________, 1996.
__________________
Frank A. McPherson
Chairman of the Board
and Chief Executive Officer
Attest:
____________
Tom McDaniel
Secretary
<PAGE>
Exhibit B
Form of Right Certificate
Certificate No. R- ____ ___ Rights
NOT EXERCISABLE AFTER July 22, 2006 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. UNDER CERTAIN
CIRCUMSTANCES, AS SET FORTH IN THE RIGHTS AGREEMENT,
RIGHTS OWNED BY OR TRANSFERRED TO ANY PERSON WHO BECOMES
AN ACQUIRING PERSON (AS DEFINED IN THE RIGHTS AGREEMENT)
AND CERTAIN TRANSFEREES THEREOF WILL BECOME NULL AND VOID
AND WILL NO LONGER BE TRANSFERABLE.
Right Certificate
KERR-MCGEE CORPORATION
This certifies that ___________ or registered assigns, is
the registered owner of the number of Rights set forth above,
each of which entitles the owner thereof, subject to the terms,
provisions and conditions of the Rights Agreement, dated as of
July 9, 1996 as the same may be amended from time to time (the
"Rights Agreement"), between Kerr-McGee Corporation, a Delaware
corporation (the "Company"), and The Liberty Bank and Trust
Company of Oklahoma City, N.A. (the "Rights Agent"), to purchase
from the Company at any time after the Distribution Date (as
such term is defined in the Rights Agreement) and prior to 5:00
P.M., New York City time, on July 22, 2006 at the office or
agency of the Rights Agent designated for such purpose, or of
its successor as Rights Agent, one one-hundredth of a fully paid
non-assessable share of Series B Junior Participating Preferred
Stock, without par value (the "Preferred Stock"), of the
Company, at a purchase price of $215.00 per one one-hundredth of
a share of Preferred Stock (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 Rights Certificate (and the number of
one one-hundredths of a share of Preferred Stock 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 July 9, 1996 based on the Preferred Stock as
constituted at such date. As provided in the Rights Agreement,
the Purchase Price, the number of one one-hundredths of a share
of Preferred Stock (or other securities or property) which may
be purchased upon the exercise of the Rights and the number of
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 office or agency of the Rights Agent. The
Company will mail to the holder of this Right Certificate a copy
of the Rights Agreement without charge after receipt of a
written request therefor.
This Right Certificate, with or without other Right
Certificates, upon surrender at the office or agency of the
Rights Agent designated for such purpose, 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 shares of Preferred Stock 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 shares of Preferred Stock or
shares of the Company's Common Stock, no par value ($1 per share
stated value).
No fractional shares of Preferred Stock or Common Stock
will be issued upon the exercise or exchange of any Right or
Rights evidenced hereby (other than fractions of Preferred Stock
which are integral multiples of one one-hundredth of a share of
Preferred Stock, which may, at the election of the Company, be
evidenced by depositary receipts), but in lieu thereof a cash
payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any
purpose the holder of the Preferred Stock or of any other
securities of the Company which may at any time be issuable on
the exercise or exchange hereof, nor shall anything contained in
the Rights Agreement or herein be construed to confer upon the
holder hereof, as such, any of the rights of a stockholder of
the Company or any right to vote for the election of directors
or upon any matter submitted to stockholders at any meeting
thereof, or to give or withhold consent to any corporate action,
or to receive notice of meetings or other actions affecting
stockholders (except as provided in the Rights Agreement) or to
receive dividends or subscription rights, or otherwise, until
the Right or Rights evidenced by this Right certificate shall
have been exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory
for any purpose until it shall have been countersigned by the
Rights Agent.
WITNESS the facsimile signature of the proper officers of
the Company and its corporate seal. Dated as of _____________.
ATTEST: KERR-MCGEE CORPORATION
By By
Countersigned:
as Rights Agent
By
Authorized Signature
<PAGE>
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 transfer unto ___________________________
____________________________________________________________
(Please print name and address of transferee)
____________________________________________________________
Rights represented by this Right Certificate, together with all
right, title and interest therein, and does hereby irrevocably
constitute and appoint ___________________ Attorney, to transfer
said Rights on the books of the within-named Company, with full
power of substitution.
Dated:
Signature
Signature Guaranteed:
Signatures must be guaranteed by a bank, trust company,
broker, dealer or other eligible institution participating in a
recognized signature guarantee medallion program
- ------------------------------------------------------------
(To be completed)
The undersigned hereby certifies that the Rights
evidenced by this Right Certificate are not beneficially owned
by, were not acquired by the undersigned from, and are not being
assigned to, an Acquiring Person or an Affiliate or Associate
thereof (as defined in the Rights Agreement).
Signature
<PAGE>
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 Rights Certificate)
To Kerr-McGee Corporation:
The undersigned hereby irrevocably elects to
exercise __________________ Rights represented by this Right
Certificate to purchase the shares of Preferred Stock (or other
securities or property) issuable upon the exercise of such
Rights and requests that certificates for such shares of
Preferred Stock (or such other securities) be issued in the name
of:
(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 delivery to:
Please insert social security
or other identifying number
(Please print name and address)
Dated:
Signature
(Signature must conform to holder specified on Right
Certificate)
Signature Guaranteed:
Signature must be guaranteed by bank, trust company,
broker, dealer or other eligible institution participating in a
recognized signature guarantee medallion program.
<PAGE>
Form of Reverse Side of Right Certificate -- continued
(To be completed)
The undersigned certifies that the Rights evidenced by
this Right Certificate are not beneficially owned by, and were
not acquired by the undersigned from, 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, such Assignment or Election
to Purchase will not be honored.
<PAGE>
Exhibit C
UNDER CERTAIN CIRCUMSTANCES, AS SET FORTH IN THE RIGHTS
AGREEMENT, RIGHTS OWNED BY OR TRANSFERRED TO ANY PERSON
WHO BECOMES AN ACQUIRING PERSON (AS DEFINED IN THE RIGHTS
AGREEMENT) AND CERTAIN TRANSFEREES THEREOF WILL BECOME
NULL AND VOID AND WILL NO LONGER BE TRANSFERABLE.
SUMMARY OF RIGHTS TO PURCHASE
Shares of Preferred Stock
On July 9, 1996 the Board of Directors of Kerr-McGee
Corporation (the "Company") declared a dividend of one preferred
share purchase right (a "Right") for each outstanding share of
common stock, par value $1.00 per share, of the Company (the
"Common Stock"). The dividend is payable on July 22, 1996 (the
"Record Date") to the stockholders of record on that date. Each
Right entitles the registered holder to purchase from the
Company one one-hundredth of a share of Series B Junior
Participating Preferred Stock, without par value (the "Preferred
Stock") of the Company at a price of $215.00 per one one-
hundredth of a share of Preferred Stock (the "Purchase Price"),
subject to adjustment. The description and terms of the Rights
are set forth in a Rights Agreement dated as of July 9, 1996 as
the same may be amended from time to time (the "Rights
Agreement"), between the Company and The Liberty Bank and Trust
Company of Oklahoma City, N.A., as Rights Agent (the "Rights
Agent").
Until the earlier to occur of (i) 10 days following
a public announcement that a person or group of affiliated or
associated persons (with certain exceptions an "Acquiring
Person") have acquired beneficial ownership of 15% or more of
the outstanding shares of Common Stock or (ii) 10 business days
(or such later date as may be determined by action of the Board
of Directors prior to such time as any person or group of
affiliated persons becomes an Acquiring Person) following the
commencement of, or announcement of an intention to make, a
tender offer or exchange offer the consummation of which would
result in the beneficial ownership by a person or group of 15%
or more of the outstanding shares of Common Stock (the earlier
of such dates being called the "Distribution Date"), the Rights
will be evidenced, with respect to any of the Common Stock
certificates outstanding as of the Record Date, by such Common
Stock certificate together with a copy of this Summary of
Rights.
The Rights Agreement provides that, until the
Distribution Date (or earlier redemption or expiration of the
Rights), the Rights will be transferred with and only with the
Common Stock. Until the Distribution Date (or earlier
redemption or expiration of the Rights), new Common Stock
certificates issued after the Record Date upon transfer or new
issuances of Common Stock will contain a notation incorporating
the Rights Agreement by reference. Until the Distribution Date
(or earlier redemption or expiration of the Rights), the
surrender for transfer of any certificates for shares of Common
Stock outstanding as of the Record Date, even without such
notation or a copy of this Summary of Rights, will also
constitute the transfer of the Rights associated with the shares
of Common Stock represented by such certificate. As soon as
practicable following the Distribution Date, separate
certificates evidencing the Rights ("Right Certificates") will
be mailed to holders of record of the Common Stock as of the
close of business on the Distribution Date and such separate
Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribu-
tion Date. The Rights will expire on July 22, 2006 (the "Final
Expiration Date"), unless the Final Expiration Date is advanced
or extended or unless the Rights are earlier redeemed or ex-
changed by the Company, in each case as described below.
The Purchase Price payable, and the number of shares
of Preferred Stock or other securities or property issuable,
upon exercise of the Rights are subject to adjustment from time
to time to prevent dilution (i) in the event of a stock dividend
on, or a subdivision, combination or reclassification of, the
Preferred Stock, (ii) upon the grant to holders of the Preferred
Stock of certain rights or warrants to subscribe for or purchase
Preferred Stock at a price, or securities convertible into
Preferred Stock with a conversion price, less than the
then-current market price of the Preferred Stock or (iii) upon
the distribution to holders of the Preferred Stock of evidences
of indebtedness or assets (excluding regular periodic cash
dividends or dividends payable in Preferred Stock) or of
subscription rights or warrants (other than those referred to
above).
The number of outstanding Rights are also subject to
adjustment in the event of a stock split of the Common Stock or
a stock dividend on the Common Stock payable in shares of Common
Stock or subdivisions, consolidations or combinations of the
Common Stock occurring, in any such case, prior to the
Distribution Date.
Shares of Preferred Stock purchasable upon exercise
of the Rights will not be redeemable. Each share of Preferred
Stock will be entitled, when, as and if declared, to a minimum
preferential quarterly dividend payment of $1 per share but will
be entitled to an aggregate dividend of 100 times the dividend
declared per share of Common Stock. In the event of
liquidation, dissolution or winding up of the Company, the
holders of the Preferred Stock will be entitled to a minimum
preferential liquidation payment of $100 per share (plus any
accrued but unpaid dividends) but will be entitled to an
aggregate payment of 100 times the payment made per share of
Common Stock. Each share of Preferred Stock will have 100
votes, voting together with the Common Stock. Finally, in the
event of any merger, consolidation or other transaction in which
shares of Common Stock are converted or exchanged, each share of
Preferred Stock will be entitled to receive 100 times the amount
received per share of Common Stock. These rights are protected
by customary antidilution provisions.
Because of the nature of the Preferred Stock's
dividend, liquidation and voting rights, the value of the one
one-hundredth interest in a share of Preferred Stock purchasable
upon exercise of each Right should approximate the value of one
share of Common Stock.
In the event that any person or group of affiliated
or associated persons becomes an Acquiring Person, each holder
of a Right, other than Rights beneficially owned by the
Acquiring Person (which will thereupon become void), will
thereafter have the right to receive upon exercise of a Right at
the then current exercise price of the Right, that number of
shares of Common Stock having a market value of two times the
exercise price of the Right.
In the event that, after a person or group has be-
come an Acquiring Person, the Company is acquired in a merger or
other business combination transaction or 50% or more of its
consolidated assets or earning power are sold, proper provision
will be made so that each holder of a Right (other than Rights
beneficially owned by an Acquiring Person which will have become
void) will thereafter have the right to receive, upon the
exercise thereof at the then current exercise price of the
Right, that number of shares of common stock of the person with
whom the Company has engaged in the foregoing transaction (or
its parent), which number of shares at the time of such
transaction will have a market value of two times the exercise
price of the Right.
At any time after any person or group becomes an
Acquiring Person and prior to the acquisition by such person or
group of 50% or more of the outstanding shares of Common Stock
or the occurrence of an event described in the prior paragraph,
the Board of Directors of the Company may exchange the Rights
(other than Rights owned by such person or group which will have
become void), in whole or in part, at an exchange ratio of one
share of Common Stock, or one one-hundredth of a share of
Preferred Stock (or of a share of a class or series of the
Company's preferred stock having equivalent rights, preferences
and privileges), per Right (subject to adjustment).
With certain exceptions, no adjustment in the Pur-
chase Price will be required until cumulative adjustments
require an adjustment of at least 1% in such Purchase Price. No
fractional shares of Preferred Stock will be issued (other than
fractions which are integral multiples of one one-hundredth of
a share of Preferred Stock, which may, at the election of the
Company, be evidenced by depositary receipts) and in lieu there-
of, an adjustment in cash will be made based on the market price
of the Preferred Stock on the last trading day prior to the date
of exercise.
At any time prior to the time an Acquiring Person
becomes such, the Board of Directors of the Company may redeem
the Rights in whole, but not in part, at a price of $.01 per
Right (the "Redemption Price"). The redemption of the Rights
may be made effective at such time, on such basis and with such
conditions as the Board of Directors in its sole discretion may
establish. Immediately upon any redemption of the Rights, the
right to exercise the Rights will terminate and the only right
of the holders of Rights will be to receive the Redemption
Price.
For so long as the Rights are then redeemable, the
Company may, except with respect to the redemption price, amend
the Rights in any manner. After the Rights are no longer
redeemable, the Company may, except with respect to the
redemption price, amend the Rights in any manner that does not
adversely affect the interests of holders of the Rights.
Until a Right is exercised, the holder thereof, as
such, will have no rights as a stockholder of the Company,
including, without limitation, the right to vote or to receive
dividends.
A copy of the Rights Agreement has been filed with
the Securities and Exchange Commission as an Exhibit to a
Registration Statement on Form 8-A dated July 9, 1996. A copy
of the Rights Agreement is available free of charge from the
Company. This summary description of the Rights does not
purport to be complete and is qualified in its entirety by
reference to the Rights Agreement, as the same may be amended
from time to time, which is hereby incorporated herein by
reference.
CONTACT: Dow Dozier
(405) 270-2877
KERR-McGEE ADOPTS NEW STOCKHOLDERS RIGHTS PLAN
OKLAHOMA CITY (July 9, 1996) -- At its regularly
scheduled meeting today, the board of directors of Kerr-McGee
Corp. (NYSE:KMG) declared a dividend distribution of one common
share purchase right for each outstanding share of Kerr-McGee
common stock. This new rights plan replaces Kerr-McGee's
expiring plan.
"These rights contain provisions to protect Kerr-McGee's
stockholders from certain abusive takeover tactics," said Frank
A. McPherson, Kerr-McGee chairman of the board and chief
executive officer. "They do not prevent a takeover but should
encourage anyone interested in acquiring Kerr-McGee to negotiate
with the board."
McPherson continued, "The board's action is not in
response to any specific effort to acquire control of Kerr-
McGee, and the board is not aware of any such effort. The
rights plan is similar to plans adopted by many public companies
and should provide a sound and reasonable means of safeguarding
the interests of all stockholders if an effort is made to
acquire the company at a price not reflective of its fair
value."
The distribution of the rights will be made on July 22,
1996, payable to stockholders of record at the close of business
on that date. The rights will expire on July 22, 2006. The
rights distribution is not taxable to stockholders.
Details of the rights distribution are contained in a
summary that is being mailed to all Kerr-McGee stockholders.
Kerr-McGee is an Oklahoma City-based energy and chemical
company with worldwide operations and assets of $3.2 billion.
###
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