SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
F O R M 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 17, 1995
MARK IV INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation)
1-8862 23-1733979
(Commission File Number) (IRS Employer Identification No.)
501 John James Audubon Parkway, Amherst, New York 14226-0810
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(716-689-4972)
________________________________________________________________
(Former name or former address, if changed since last report)
<PAGE>
Item 5. Other Events
On May 17, 1995, the Board of Directors of Mark IV
Industries, Inc., a Delaware corporation, (the "Company")
declared a dividend of one Right for each outstanding share of
the Company's Common Stock, par value $.01 per share (the
"Common Stock"), to stockholders of record at the close of
business on June 2, 1995. Each Right entitles the registered
holder to purchase from the Company a unit consisting of one
one-hundredth of a share of Series A Junior Participating
Preferred Stock, par value $.01 per share (the "Preferred
Stock"), at a Purchase Price of $80.00 per unit of one
one-hundredth of a share, subject to adjustment. The
description and terms of the Rights are set forth in a Rights
Agreement (the "Rights Agreement") between the Company and
American Stock Transfer & Trust Company, as Rights Agent.
Initially, the Rights will be attached to all Common
Stock certificates representing shares then outstanding, and no
separate Rights Certificates will be distributed. A
Distribution Date will occur and the Rights will separate from
the Common Stock upon the earliest of (i) 10 days following a
public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") has acquired, or
obtained the right to acquire, beneficial ownership of 20% or
more of the shares of Common Stock then outstanding (the "Stock
Acquisition Date"), or (ii) 10 business days following the
commencement of a tender offer or exchange offer that would
result in a person or group beneficially owning 20% or more of
such outstanding shares of Common Stock (unless such tender
offer or exchange offer is an offer for all outstanding shares
of Common Stock which a majority of the unaffiliated Directors
who are not officers of the Company determine to be fair to and
otherwise in the best interests of the Company and its
stockholders).
Until the Distribution Date, (i) the Rights will be
evidenced by the Common Stock certificates and will be
transferred with and only with such Common Stock certificates,
(ii) new Common Stock certificates issued after June 2, 1995
will contain a notation incorporating the Rights Agreement by
reference, and (iii) the surrender for transfer of any
certificates for Common Stock outstanding will also constitute
the transfer of the Rights associated with the Common Stock
represented by such certificate.
The Rights are not exercisable until the Distribution
Date and will expire at the close of business on June 2, 2005,
unless earlier redeemed by the Company as described below.
As soon as practicable after the Distribution Date,
Rights Certificates will be mailed to holders of record of the
Common Stock as of the close of business on the Distribution
Date and, thereafter, the separate Rights Certificates alone
will represent the Rights. Except (i) with respect to certain
shares of Common Stock issued or sold pursuant to the exercise
of stock options or under any employee plan or arrangement, or
upon the exercise, conversion or exchange of certain securities
of the Company, or (ii) as otherwise determined by the Board of
Directors, only shares of Common Stock issued prior to the
Distribution Date will be issued with Rights.
In the event that a person becomes the beneficial
owner of 20% or more of the then outstanding shares of Common
Stock (except pursuant to an offer for all outstanding shares of
Common Stock which a majority of the Directors who are not
officers of the Company and who are not affiliates or associates
of such person determine to be fair to and otherwise in the best
interests of the Company and its stockholders) (such event, a
"Flip-in Event"), each holder of a Right will thereafter have
the right to receive, upon payment of the Purchase Price, Common
Stock (or, in certain circumstances, cash, property or other
securities of the Company) having a value (based on a formula
set forth in the Rights Agreement) equal to two times the
Purchase Price of the Right. Notwithstanding any of the
foregoing, following the occurrence of the Flip-in Event, all
Rights that are, or (under certain circumstances specified in
the Rights Agreement) were, beneficially owned by an Acquiring
Person (or by certain related parties) will be null and void.
However, Rights are not exercisable following the occurrence of
the Flip-in Event until such time as the Rights are no longer
redeemable by the Company as set forth below.
For example, at a Purchase Price of $80.00 per Right,
each Right not owned by an Acquiring Person (or by certain
related parties) following a Flip-in-Event would entitle its
holder to purchase $160.00 worth of Common Stock (or other
consideration, as noted above) determined pursuant to a formula
set forth in the Rights Agreement, for $80.00. Assuming that
the Common Stock had a per share value of $20.00 at such time
(as determined pursuant to such formula), the holder of each
valid Right would be entitled to purchase eight shares of Common
Stock for $80.00.
In the event that, at any time following the Stock
Acquisition Date (i) the Company is acquired in a merger or
other business combination transaction in which the Company is
not the surviving corporation or in which it is the surviving
corporation but its Common Stock is changed or exchanged (other
than a merger meeting certain conditions which follows an offer
for all outstanding shares of Common Stock which a majority of
the unaffiliated Directors who are not officers of the Company
determine to be fair to and otherwise in the best interests of
the Company and its stockholders), or (ii) 50% or more of the
Company's assets, earning power or cash flow is sold or
transferred, each holder of a Right (except Rights which
previously have been voided as set forth above) shall thereafter
have the right to receive, upon payment of the Purchase Price,
common stock of the acquiring company having a value equal to
two times the exercise price of the Right. The events set forth
in this paragraph and the Flip-in Event described in the second
preceding paragraph are referred to as the "Triggering Events."
The Purchase Price payable, and the number of units of
one one-hundredths of a share of Preferred Stock or other
securities or property issuable, upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution (i)
in the event of a stock dividend on, or a subdivision,
combination or reclassification of, the Preferred Stock, (ii) if
holders of the Preferred Stock are granted certain rights or
warrants to subscribe for Preferred Stock or convertible
securities at less than the current market price of the
Preferred Stock, or (iii) upon the distribution to holders of
the Preferred Stock of evidences of indebtedness or assets
(excluding cash dividends not in excess of 200% of regular
quarterly cash dividends) or of subscription rights
or warrants (other than those referred to above).
With certain exceptions, no adjustment in the Purchase
Price will be required until cumulative adjustments amount to at
least 1% of the Purchase Price. No fractional shares of
Preferred Stock (other than fractions of one one-hundredth of a
share, or integral multiples thereof) will be issued and, in
lieu thereof, an adjustment in cash will be made based on the
market price of the Preferred Stock on the last trading date
prior to the date of exercise.
At any time until ten days following the Stock
Acquisition Date, the Company may redeem the Rights in whole,
but not in part, at a price of $.01 per Right (payable in cash,
Common Stock or other consideration deemed appropriate by the
Board of Directors). Under certain circumstances set forth in
the Rights Agreement, the decision to redeem shall require the
concurrence of a majority of the Continuing Directors (as
defined below) who are not officers of the Company. Immediately
upon the action of the Board of Directors ordering redemption of
the Rights, with, where required, the concurrence of such
Continuing Directors, the Rights will terminate and the only
right of the holders of Rights will be to receive the $.01
redemption price.
The term "Continuing Director" means any member of the
Board of Directors of the Company who was a member of the Board
prior to the date of the Rights Agreement, and any person who is
subsequently elected to the Board if such person is recommended
or approved by a majority of the Continuing Directors, but shall
not include an Acquiring Person or an affiliate or associate of
such person, or representative of any of the foregoing.
Until a Right is exercised, the holder thereof, as
such, will have no rights as a stockholder of the Company,
including, without limitation, the right to vote or to receive
dividends. While the distribution of the Rights will not be
taxable to stockholders or to the Company, stockholders may,
depending upon the circumstances, recognize taxable income in
the event that the Rights become exercisable for Common Stock
(or other consideration) of the Company or for common stock of
the acquiring company as set forth above, or are redeemed as
provided in the second preceding paragraph.
Other than certain provisions relating to the
principal economic terms of the Rights, any of the provisions of
the Rights Agreement may be amended by the Board of Directors of
the Company prior to the Distribution Date. After the
Distribution Date, the provisions of the Rights Agreement may be
amended by the Board (in certain circumstances, with the
concurrence of the Continuing Directors) in order to cure any
ambiguity, to make changes which do not adversely affect the
interests of holders of Rights (other than an Acquiring Person
or an affiliate or associate thereof), or to shorten or lengthen
any time period under the Rights Agreement; provided, however,
that no amendment to adjust the time period governing redemption
shall be made at such time as the Rights are not redeemable.
The Rights have certain anti-takeover effects.
Exercise of the Rights will cause substantial dilution to a
person or group that attempts to acquire the Company on terms
not approved by the Company's Board of Directors. The existence
of Rights, however, should not affect an offer at a fair price
and otherwise in the best interests of the Company and its
stockholders as determined by the Board of Directors. The
Rights should not interfere with any merger or other business
combination approved by the Board of Directors since the Board
of Directors may, at its option, at any time until ten days
following the Stock Acquisition Date redeem all but not less
than all of the then outstanding Rights at the $.01 redemption
price.
The Rights Agreement between the Company and the
Rights Agent specifying the terms of the Rights, which includes
as Exhibit B the Form of Rights Certificate, the press release
announcing the declaration of the Rights and a letter to the
holders of the Company's Common Stock (together with a summary
of the Rights attached thereto) are attached hereto as exhibits
and are incorporated herein by reference. The foregoing
description of the Rights does not purport to be complete and is
qualified in its entirety by reference to such exhibits.
<PAGE>
Item 7. Exhibits
Exhibit Number Description
4* Rights Agreement, dated as of May 17, 1995,
between Mark IV Industries, Inc. and
American Stock Transfer & Trust Company, as
Rights Agent
20* Letter to the holders of Mark IV Industries,
Inc. Common Stock, dated May 24, 1995
(including Summary of Rights)
99* Press Release, dated May 17, 1995
* Filed herewith by direct transmissionpursuant to the EDGAR
Program.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the Registrant has duly caused this report
to be signed on its behalf by the undersigned hereunto duly
authorized.
MARK IV INDUSTRIES, INC.
By:/s/ Richard L. Grenolds
Richard L. Grenolds
Vice President and Chief
Accounting Officer
Dated: May 24, 1995
<PAGE>
EXHIBIT INDEX
Exhibit Number Description Page
4* Rights Agreement, dated as of May 17,
1995, between Mark IV Industries, Inc.
and American Stock Transfer & Trust
Company, as Rights Agent
20* Letter to the holders of Mark IV
Industries, Inc. Common Stock, dated May
24, 1995 (including Summary of Rights)
99* Press Release, dated May 17, 1995
* Filed herewith by direct transmission pursuant to the EDGAR
Program.
MARK IV INDUSTRIES, INC.
and
AMERICAN STOCK TRANSFER & TRUST COMPANY
Rights Agent
Rights Agreement
Dated as of May 17, 1995
<PAGE>
Table of Contents
Section Page
1 Certain Definitions . . . . . . . . . . . . . . . 1
2 Appointment of Rights Agent . . . . . . . . . . . 4
3 Issue of Rights Certificates. . . . . . . . . . . 4
4 Form of Rights Certificates . . . . . . . . . . . 6
5 Countersignature and Registration . . . . . . . . 7
6 Transfer, Split Up, Combination and
Exchange of Rights Certificates;
Mutilated, Destroyed, Lost or
Stolen Rights Certificates. . . . . . . . . . . 8
7 Exercise of Rights; Purchase
Price; Expiration Date of Rights. . . . . . . . 9
8 Cancellation and Destruction of
Rights Certificates . . . . . . . . . . . . . . 11
9 Reservation and Availability of
Capital Stock . . . . . . . . . . . . . . . . . 12
10 Preferred Stock Record Date . . . . . . . . . . . 13
11 Adjustment of Purchase Price,
Number and Kind of Shares or
Number of Rights. . . . . . . . . . . . . . . . 14
12 Certificate of Adjusted Purchase
Price or Number of Shares . . . . . . . . . . . 24
13 Consolidation, Merger or Sale
or Transfer of Assets, Cash Flow
or Earning Power. . . . . . . . . . . . . . . . 24
14 Fractional Rights and Fractional
Shares. . . . . . . . . . . . . . . . . . . . . 27
15 Rights of Action. . . . . . . . . . . . . . . . . 28
16 Agreement of Rights Holders . . . . . . . . . . . 29
17 Rights Certificate Holder Not Deemed
a Stockholder . . . . . . . . . . . . . . . . . 29
18 Concerning the Rights Agent . . . . . . . . . . . 30
19 Merger or Consolidation or Change of
Name of Rights Agent. . . . . . . . . . . . . . 30
20 Duties of Rights Agent. . . . . . . . . . . . . . 31
21 Change of Rights Agent. . . . . . . . . . . . . . 33
22 Issuance of New Rights Certificates . . . . . . . 34
23 Redemption and Termination. . . . . . . . . . . . 35
24 Notice of Certain Events. . . . . . . . . . . . . 36
25 Notices . . . . . . . . . . . . . . . . . . . . . 37
26 Supplements and Amendments. . . . . . . . . . . . 38
27 Successors. . . . . . . . . . . . . . . . . . . . 39
28 Determinations and Actions
by the Board of Directors, etc. . . . . . . . . 39
29 Benefits of this Agreement. . . . . . . . . . . . 39
30 Severability. . . . . . . . . . . . . . . . . . . 40
31 Governing Law . . . . . . . . . . . . . . . . . . 40
32 Counterparts. . . . . . . . . . . . . . . . . . . 40
33 Descriptive Headings. . . . . . . . . . . . . . . 40
Exhibit A -- Certificate of Amendment of Restated Certificate of
Incorporation of Mark IV Industries, Inc.
Exhibit B -- Form of Rights Certificate
Exhibit C -- Form of Summary of Rights
<PAGE>
RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of May 17, 1995 (the
"Agreement"), between Mark IV Industries, Inc., a Delaware
corporation (the "Company"), and American Stock Transfer & Trust
Company, a New York banking corporation (the "Rights Agent").
W I T N E S S E T H
WHEREAS, on May 17, 1995 (the "Rights Dividend
Declaration Date"), the Board of Directors of the Company
authorized and declared a dividend distribution of one Right for
each share of common stock, par value $.01 per share, of the
Company (the "Common Stock") outstanding at the close of
business on June 2, 1995 (the "Record Date"), and has authorized
the issuance of one Right (as such number may hereinafter be
adjusted pursuant to the provisions of Section 11(p) hereof) for
each share of Common Stock of the Company issued between the
Record Date (whether originally issued or delivered from the
Company's treasury) and the Distribution Date, each Right
initially representing the right to purchase one one-hundredth
of a share of Series A Junior Participating Preferred Stock of
the Company having the rights, powers and preferences set forth
in the form of Certificate of Designation, Preferences and
Rights attached hereto as Exhibit A, upon the terms and subject
to the conditions hereinafter set forth (the "Rights");
NOW, THEREFORE, in consideration of the premises and
the mutual agreements herein set forth, the parties hereby agree
as follows:
Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who
or which, together with all Affiliates and Associates of such
Person, shall be the Beneficial Owner of 20% or more of the
shares of Common Stock then outstanding, but shall not include
the Company, any Subsidiary of the Company, any employee benefit
plan of the Company or of any Subsidiary of the Company, or any
Person or entity organized, appointed or established by the
Company for or pursuant to the terms of any such plan. For
purposes of the foregoing and all other provisions of this
Agreement, in computing the percentage of the shares of Common
Stock outstanding at any time which are beneficially owned by a
Person and its Affiliates and Associates, the shares of Common
Stock then outstanding shall be deemed to include all shares of
Common Stock beneficially owned by such Person and its
Affiliates and Associates but not actually then outstanding,
including the shares of Common Stock, if any, then issuable to
such Person and its Affiliates and Associates upon the exercise
of conversion rights, exchange rights, rights, warrants or
options.
(b) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act
of 1934, as amended and in effect on the date of this Agreement
(the "Exchange Act").
(c) A Person shall be deemed the "Beneficial
Owner" of, and shall be deemed to "beneficially own," any
securities:
(i) which such Person or any of such
Person's Affiliates or Associates, directly or indirectly, has
the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding (whether or not in
writing) or upon the exercise of conversion rights, exchange
rights, rights, warrants or options, or otherwise; provided,
however, that a Person shall not be deemed the "Beneficial
Owner" of, or to "beneficially own," (A) securities
tendered pursuant to a tender or exchange offer made by such
Person or any of such Person's Affiliates or Associates until
such tendered securities are accepted for purchase or exchange,
or (B) securities issuable upon exercise of Rights at any time
prior to the occurrence of a Triggering Event, or (C) securities
issuable upon exercise of Rights from and after the occurrence
of a Triggering Event which Rights were acquired by such Person
or any of such Person's Affiliates or Associates prior to the
Distribution Date or pursuant to Section 3(a) or Section 22
hereof (the "Original Rights") or pursuant to Section 11(i)
hereof in connection with an adjustment made with respect to any
Original Rights;
(ii) which such Person or any of such
Person's Affiliates or Associates, directly or indirectly, has
the right to vote or dispose of or has "beneficial ownership" of
(as determined pursuant to Rule 13d-3 of the General Rules and
Regulations under the Exchange Act), including pursuant to any
agreement, arrangement or understanding, whether or not in
writing; provided, however, that a Person shall not be deemed
the "Beneficial Owner" of, or to "beneficially own," any
security under this subparagraph (ii) as a result of an
agreement, arrangement or understanding to vote such
security if such agreement, arrangement or understanding: (A)
arises solely from a revocable proxy given in response to a
public proxy or consent solicitation made pursuant to, and in
accordance with, the applicable provisions of the General Rules
and Regulations under the Exchange Act, and (B) is not also then
reportable by such Person on Schedule 13D under the Exchange Act
(or any comparable or successor report); or
(iii) which are beneficially owned, directly
or indirectly, by any other Person (or any Affiliate or
Associate thereof) with which such Person (or any of such
Person's Affiliates or Associates) has any agreement,
arrangement or understanding (whether or not in writing), for
the purpose of acquiring, holding, voting (except pursuant to a
revocable proxy as described in the proviso to subparagraph (ii)
of this paragraph (c)) or disposing of any voting securities of
the Company; provided, however, that nothing in this paragraph
(c) shall cause a person engaged in business as an underwriter
of securities to be the "Beneficial Owner" of, or to
"beneficially own," any securities acquired through such
person's participation in good faith in a firm commitment
underwriting until the expiration of forty days after
the date of such acquisition.
(d) "Business Day" shall mean any day other than
a Saturday, Sunday or a day on which banking institutions in the
State of New York are authorized or obligated by law or
executive order to close.
(e) "Close of business" on any given date shall
mean 5:00 P.M., New York City time, on such date; provided,
however, that if such date is not a Business Day it shall mean
5:00 P.M., New York City time, on the next succeeding Business
Day.
(f) "Common Stock" shall mean the common stock,
par value $.01 per share, of the Company, except that "Common
Stock" when used with reference to any Person other than the
Company shall mean the capital stock of such Person with the
greatest voting power, or the equity securities or other equity
interest having power to control or direct the management, of
such Person.
(g) "Continuing Director" shall mean (i) any
member of the Board of Directors of the Company, while such
Person is a member of the Board, who is not an Acquiring Person,
or an Affiliate or Associate of an Acquiring Person, or a
representative of an Acquiring Person or any such Affiliate or
Associate, and was a member of the Board prior to the date of
this Agreement, or (ii) any Person who subsequently becomes a
member of the Board, while such Person is a member of the Board,
who is not an Acquiring Person, or an Affiliate or Associate of
an Acquiring Person, or a representative of an Acquiring Person
or any such Affiliate or Associate, if such Person's nomination
for election or election to the Board is recommended or approved
by a majority of the Continuing Directors.
(h) "Person" shall mean any individual, firm
corporation, partnership or other entity.
(i) "Preferred Stock" shall mean shares of
Series A Junior Participating Preferred Stock, par value $.01
per share, of the Company, and, to the extent that there are not
a sufficient number of shares of Series A Junior Participating
Preferred Stock authorized to permit the full exercise of the
Rights, any other series of Preferred Stock, par value $.01 per
share, of the Company designated for such purpose containing
terms substantially similar to the terms of the Series A Junior
Participating Preferred Stock.
(j) "Section 11(a)(ii) Event" shall mean
the event described in Section 11(a)(ii) hereof.
(k) "Section 13 Event" shall mean any event
described in clauses (x), (y) or (z) of Section 13(a) hereof.
(l) "Stock Acquisition Date" shall mean the
first date of public announcement (which, for purposes of this
definition, shall include, without limitation, a report filed
pursuant to Section 13(d) under the Exchange Act) by the Company
or an Acquiring Person that an Acquiring Person has become such.
(m) "Subsidiary" shall mean, with reference to
any Person, any corporation of which an amount of voting
securities sufficient to elect at least a majority of the
directors of such corporation is beneficially owned, directly or
indirectly, by such Person, or otherwise controlled by such
Person.
(n) "Triggering Event" shall mean any Section
11(a)(ii) Event or any Section 13 Event.
Section 2. Appointment of Rights Agent. The Company
hereby appoints the Rights Agent to act as agent for the Company
and the holders of the Rights (who, in accordance with Section 3
hereof, shall prior to the Distribution Date (as defined below)
also be the holders of the Common Stock) in accordance with the
terms and conditions hereof, and the Rights Agent hereby accepts
such appointment. The Company may from time to time appoint
such Co-Rights Agents as it may deem necessary or desirable.
Section 3. Issue of Rights Certificates. (a) Until
the earliest of (i) the close of business on the tenth day after
the Stock Acquisition Date (or, if the tenth day after the Stock
Acquisition Date occurs before the Record Date, the close of
business on the Record Date), and (ii) the close of business on
the tenth Business Day (or such later date as the Board shall
determine) after the date that a tender or exchange offer by any
Person (other than the Company, any Subsidiary of the Company,
any employee benefit plan of the Company or of any Subsidiary of
the Company, or any Person or entity organized, appointed or
established by the Company for or pursuant to the terms of any
such plan) is first published or sent or given within the
meaning of Rule 14d-2(a) of the General Rules and Regulations
under the Exchange Act, if upon consummation thereof, such
Person would be the Beneficial Owner of 20% or more of the
shares of Common Stock then outstanding (the earliest of (i) and
(ii) being herein referred to as the "Distribution Date"), (x)
the Rights will be evidenced (subject to the provisions of
paragraph (b) of this Section 3) by the certificates for the
Common Stock registered in the names of the holders of the
Common Stock (which certificates for Common Stock shall be
deemed also to be certificates for Rights) and not by separate
certificates, and (y) the Rights will be transferable only in
connection with the transfer of the underlying shares of Common
Stock (including a transfer to the Company). As soon as
practicable after the Distribution Date, the Rights Agent will
send by first-class, insured, postage prepaid mail, to each
record holder of the Common Stock as of the close of
business on the Distribution Date, at the address of such holder
shown on the records of the Company, one or more right
certificates, in substantially the form of Exhibit B hereto (the
"Rights Certificates"), evidencing one Right for each share of
Common Stock so held, subject to adjustment as provided herein.
In the event that an adjustment in the number of Rights per
share of Common Stock has been made pursuant to Section 11(p)
hereof, at the time of distribution of the Right Certificates,
the Company shall make the necessary and appropriate rounding
adjustments (in accordance with Section 14(a) hereof) so that
Rights Certificates representing only whole numbers of Rights
are distributed and cash is paid in lieu of any fractional
Rights. As of and after the Distribution Date, the Rights will
be evidenced solely by such Rights Certificates.
(b) As promptly as practicable following the
Record Date, the Company will send a copy of a Summary of
Rights, in substantially the form attached hereto as Exhibit C
(the "Summary of Rights"), by first-class, postage prepaid mail,
to each record holder of the Common Stock as of the close of
business on the Record Date, at the address of such holder shown
on the records of the Company. With respect to certificates for
the Common Stock outstanding as of the Record Date, until the
Distribution Date, the Rights will be evidenced by such
certificates for the Common Stock and the registered holders of
the Common Stock shall also be the registered holders of the
associated Rights. Until the earlier of the Distribution Date
or the Expiration Date (as such term is defined in Section 7
hereof), the transfer of any certificates representing shares of
Common Stock in respect of which Rights have been issued shall
also constitute the transfer of the Rights associated with such
shares of Common Stock.
(c) Rights shall be issued in respect of all
shares of Common Stock which are issued (whether originally
issued or from the Company's treasury) after the Record Date but
prior to the earlier of the Distribution Date or the Expiration
Date. Certificates representing such shares of Common Stock
shall also be deemed to be certificates for Rights, and shall
bear the following legend:
This certificate also evidences and entitles the
holder hereof to certain Rights as set forth in the
Rights Agreement between Mark IV Industries, Inc. (the
"Company") and American Stock Transfer & Trust Company
dated as of May 17, 1995 (the "Rights Agreement"), the
terms of which are hereby incorporated herein by
reference and a copy of which is on file at the principal
offices of the Company. Under certain circumstances, as
set forth in the Rights Agreement, such Rights will be
evidenced by separate certificates and will no longer be
evidenced by this certificate. The Company will mail to
the holder of this certificate a copy of the Rights
Agreement, as in effect on the date of mailing, without
charge promptly after receipt of a written request
therefor. Under certain circumstances set forth in the
Rights Agreement, Rights issued to, or held by, any
Person who is, was or becomes an Acquiring Person, or any
Affiliate or Associate thereof (as such terms are defined
in the Rights Agreement), whether currently held by or on
behalf of such Person or by any subsequent holder, may
become null and void.
With respect to such certificates containing the foregoing
legend, until the earlier of (i) the Distribution Date or (ii)
the Expiration Date (as defined below), the Rights associated
with the Common Stock represented by such certificates shall be
evidenced by such certificates alone and registered holders of
Common Stock shall also be the registered holders of the
associated Rights, and the transfer of any of such certificates
shall also constitute the transfer of the Rights associated with
the Common Stock represented by such certificates.
Section 4. Form of Rights Certificates. (a) The
Rights Certificates (and the forms of election to purchase and
of assignment to be printed on the reverse thereof) shall each
be substantially in the form set forth in Exhibit B hereto and
may have such marks of identification or designation and such
legends, summaries or endorsements printed thereon as the
Company may deem appropriate and as are not inconsistent with
the provisions of this Agreement, or as may be required to
comply with any applicable law or with any rule or regulation
made pursuant thereto or with any rule or regulation of any
stock exchange on which the Rights may from time to time be
listed, or to conform to usage. Subject to the provisions of
Section 11 and Section 22 hereof, the Rights Certificates,
whenever distributed, shall be dated as of the Record
Date and on their face shall entitle the holders thereof to
purchase such number of one one-hundredths of a share of
Preferred Stock as shall be set forth therein at the price set
forth therein (such exercise price per one one-hundredth of a
share, the "Purchase Price"), but the amount and type of
securities purchasable upon the exercise of each Right and the
Purchase Price thereof shall be subject to adjustment as
provided herein.
(b) Any Rights Certificate issued pursuant to
Section 3(a) or Section 22 hereof that represents Rights
beneficially owned by: (i) an Acquiring Person or any Associate
or Affiliate of an Acquiring Person, (ii) a transferee of an
Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee after the Acquiring Person becomes such, or
(iii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person becoming such and
receives such Rights pursuant to either (A) a transfer (whether
or not for consideration) from the Acquiring Person to holders
of equity interests in such Acquiring Person or to any Person
with whom such Acquiring Person has any continuing agreement,
arrangement or understanding regarding the transferred Rights or
(B) a transfer which the Board of Directors of the Company has
determined is part of a plan, arrangement or understanding which
has as a primary purpose or effect avoidance of Section 7(e)
hereof, and any Rights Certificate issued pursuant to Section 6
or Section 11 hereof upon transfer, exchange, replacement or
adjustment of any other Rights Certificate referred to in this
sentence, shall contain (to the extent feasible) the following
legend:
The Rights represented by this Rights Certificate are or
were beneficially owned by a Person who was or became an
Acquiring Person or an Affiliate or Associate of an
Acquiring Person (as such terms are defined in the Rights
Agreement). Accordingly, this Rights Certificate and the
Rights represented hereby may become null and void in the
circumstances specified in Section 7(e) of such
Agreement.
Section 5. Countersignature and Registration. (a)
The Rights Certificates shall be executed on behalf of the
Company by its Chairman of the Board, its President or any Vice
President, either manually or by facsimile signature, and shall
have affixed thereto the Company's seal or a facsimile thereof
which shall be attested by the Secretary or an Assistant
Secretary of the Company, either manually or by facsimile
signature. The Rights Certificates shall be manually
countersigned by the Rights Agent and shall not be valid for any
purpose unless so countersigned. In case any officer of the
Company who shall have signed any of the Rights Certificates
shall cease to be such officer of the Company before
countersignature by the Rights Agent and issuance and delivery
by the Company, such Rights Certificates, nevertheless, may be
countersigned by the Rights Agent and issued and delivered by
the Company with the same force and effect as though the person
who signed such Rights Certificates had not ceased to be such
officer of the Company; and any Rights Certificates may be
signed on behalf of the Company by any person who, at the actual
date of the execution of such Rights Certificate, shall be a
proper officer of the Company to sign such Rights Certificate,
although at the date of the execution of this Rights Agreement
any such person was not such an officer.
(b) Following the Distribution Date, the Rights
Agent will keep or cause to be kept, at its principal office or
offices designated as the appropriate place for surrender of
Rights Certificates upon exercise or transfer, books for
registration and transfer of the Rights Certificates issued
hereunder. Such books shall show the names and addresses of the
respective holders of the Rights Certificates, the number of
Rights evidenced on its face by each of the Rights Certificates
and the date of each of the Rights Certificates.
Section 6. Transfer, Split Up, Combination and
Exchange of Rights Certificates; Mutilated, Destroyed, Lost or
Stolen Rights Certificates. (a) Subject to the provisions of
Section 4(b), Section 7(e) and Section 14 hereof, at any time
after the close of business on the Distribution Date, and at or
prior to the close of business on the Expiration Date, any
Rights Certificate or Certificates may be transferred, split up,
combined or exchanged for another Rights Certificate or
Certificates, entitling the registered holder to purchase a like
number of one one-hundredths of a share of Preferred Stock (or,
following a Triggering Event, Common Stock, other securities,
cash or other assets, as the case may be) as the Rights
Certificate or Certificates surrendered then entitled such
holder (or former holder in the case of a transfer) to purchase.
Any registered holder desiring to transfer, split up, combine or
exchange any Rights Certificate or Certificates shall make such
request in writing delivered to the Rights Agent, and
shall surrender the Rights Certificate or Certificates to be
transferred, split up, combined or exchanged at the principal
office or offices of the Rights Agent designated for such
purpose. Neither the Rights Agent nor the Company shall be
obligated to take any action whatsoever with respect to the
transfer of any such surrendered Rights Certificate until the
registered holder shall have completed and signed the
certificate contained in the form of assignment on the reverse
side of such Rights Certificate and shall have provided such
additional evidence of the identity of the Beneficial Owner (or
former Beneficial Owner) or Affiliates or Associates thereof as
the Company shall reasonably request. Thereupon the Rights
Agent shall, subject to Section 4(b), Section 7(e) and Section
14 hereof, countersign and deliver to the Person entitled
thereto a Rights Certificate or Rights Certificates, as
the case may be, as so requested. The Company may require
payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer,
split up, combination or exchange of Rights Certificates.
(b) Upon receipt by the Company and the Rights
Agent of evidence reasonably satisfactory to them of the loss,
theft, destruction or mutilation of a Rights Certificate, and,
in case of loss, theft or destruction, of indemnity or security
reasonably satisfactory to them, and reimbursement to the
Company and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent and
cancellation of the Rights Certificate if mutilated, the Company
will execute and deliver a new Rights Certificate of like tenor
to the Rights Agent for countersignature and delivery to the
registered owner in lieu of the Rights Certificate so lost,
stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights. (a) Subject to Section 7(e) hereof,
the registered holder of any Rights Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein
including, without limitation, the restrictions on
exercisability set forth in Section 9(c), Section 11(a)(iii) and
Section 23(a) hereof) in whole or in part at any time after the
Distribution Date upon surrender of the Rights Certificate, with
the form of election to purchase and the certificate on the
reverse side thereof duly executed, to the Rights Agent at the
principal office or offices of the Rights Agent designated for
such purpose, together with payment of the aggregate Purchase
Price with respect to the total number of one one-hundredths of
a share (or other securities, cash or other assets, as the case
may be) as to which such surrendered Rights are then
exercisable, at or prior to the earlier of (i) the close of
business on June 2, 2005 (the "Final Expiration Date"), or (ii)
the time at which the Rights are redeemed as provided in Section
23 hereof (the earlier of (i) and (ii) being herein referred to
as the "Expiration Date").
(b) The Purchase Price for each one
one-hundredth of a share of Preferred Stock pursuant to the
exercise of a Right shall initially be $80.00, and shall be
subject to adjustment from time to time as provided in Sections
11 and 13(a) hereof and shall be payable in accordance with
paragraph (c) below.
(c) Upon receipt of a Rights Certificate
representing exercisable Rights, with the form of election to
purchase and the certificate duly executed, accompanied by
payment, with respect to each Right so exercised, of the
Purchase Price per one one-hundredth of a share of Preferred
Stock (or other shares, securities, cash or other assets, as the
case may be) to be purchased as set forth below and an amount
equal to any applicable transfer tax, the Rights Agent shall,
subject to Section 20(k) hereof, thereupon promptly (i) (A)
requisition from any transfer agent of the shares of Preferred
Stock (or make available, if the Rights Agent is the transfer
agent for such shares) certificates for the total number of one
one-hundredths of a share of Preferred Stock to be purchased and
the Company hereby irrevocably authorizes its transfer agent to
comply with all such requests, or (B) if the Company shall have
elected to deposit the total number of shares of Preferred Stock
issuable upon exercise of the Rights hereunder with
a depositary agent, requisition from the depositary agent
depositary receipts representing such number of one
one-hundredths of a share of Preferred Stock as are to be
purchased (in which case certificates for the shares of
Preferred Stock represented by such receipts shall be deposited
by the transfer agent with the depositary agent) and the Company
will direct the depositary agent to comply with such request,
(ii) requisition from the Company the amount of cash, if any, to
be paid in lieu of fractional shares in accordance with Section
14 hereof, (iii) after receipt of such certificates or
depositary receipts, cause the same to be delivered
to or upon the order of the registered holder of such Rights
Certificate, registered in such name or names as may be
designated by such holder, and (iv) after receipt thereof,
deliver such cash, if any, to or upon the order of the
registered holder of such Rights Certificate. The payment of
the Purchase Price (as such amount may be reduced pursuant to
Section 11(a)(iii) hereof) shall be made in cash, or by
certified check or official bank check payable to the order of
the Company. In the event that the Company is obligated to
issue other securities (including Common Stock) of
the Company, pay cash and/or distribute other property pursuant
to Section 11(a) hereof, the Company will make all arrangements
necessary so that such other securities, cash and/or other
property are available for distribution by the Rights Agent, if
and when appropriate. The Company reserves the right to require
prior to the occurrence of a Triggering Event that, upon any
exercise of Rights, a number of Rights be exercised so that only
whole shares of Preferred Stock would be issued.
(d) In case the registered holder of any Rights
Certificate shall exercise less than all the Rights evidenced
thereby, a new Rights Certificate evidencing Rights equivalent
to the Rights remaining unexercised shall be issued by the
Rights Agent and delivered to, or upon the order of, the
registered holder of such Rights Certificate, registered in such
name or names as may be designated by such holder, subject to
the provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement
to the contrary, from and after the first occurrence of a
Section 11(a)(ii) Event, any Rights beneficially owned by (i) an
Acquiring Person or an Associate or Affiliate of an Acquiring
Person, (ii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee after the
Acquiring Person becomes such, or (iii) a transferee of an
Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee prior to or concurrently with the Acquiring
Person becoming such and receives such Rights pursuant to either
(A) a transfer (whether or not for consideration) from the
Acquiring Person to holders of equity interests in such
Acquiring Person or to any Person with whom the Acquiring Person
has any continuing agreement, arrangement or understanding
regarding the transferred Rights or (B) a transfer
which the Board of Directors of the Company has determined is
part of a plan, arrangement or understanding which has as a
primary purpose or effect the avoidance of this Section 7(e),
shall become null and void without any further action and no
holder of such Rights shall have any rights whatsoever with
respect to such Rights, whether under any provision of this
Agreement or otherwise. The Company shall use all reasonable
efforts to insure that the provisions of this Section 7(e) and
Section 4(b) hereof are complied with, but shall have no
liability to any holder of Rights Certificates or other Person
as a result of its failure to make any determinations with
respect to an Acquiring Person or its Affiliates, Associates or
transferees hereunder.
(f) Notwithstanding anything in this Agreement
to the contrary, neither the Rights Agent nor the Company shall
be obligated to undertake any action with respect to a
registered holder upon the occurrence of any purported exercise
as set forth in this Section 7 unless such registered holder
shall have (i) completed and signed the certificate contained in
the form of election to purchase set forth on the reverse side
of the Rights Certificate surrendered for such exercise, and
(ii) provided such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) or Affiliates or
Associates thereof as the Company shall reasonably request.
Section 8. Cancellation and Destruction of Rights
Certificates. All Rights Certificates surrendered for the
purpose of exercise, transfer, split up, combination or exchange
shall, if surrendered to the Company or any of its agents, be
delivered to the Rights Agent for cancellation or in cancelled
form, or, if surrendered to the Rights Agent, shall be cancelled
by it, and no Rights Certificates shall be issued in lieu
thereof except as expressly permitted by any of the provisions
of this Agreement. The Company shall deliver to the Rights
Agent for cancellation and retirement, and the Rights Agent
shall so cancel and retire, any other Rights Certificate
purchased or acquired by the Company otherwise than upon the
exercise thereof. The Rights Agent shall deliver all cancelled
Rights Certificates to the Company, or shall, at the written
request of the Company, destroy such cancelled Rights
Certificates, and in such case shall deliver a certificate
of destruction thereof to the Company.
Section 9. Reservation and Availability of Capital
Stock. (a) The Company covenants and agrees that it will cause
to be reserved and kept available out of its authorized and
unissued shares of Preferred Stock (and, following the
occurrence of a Triggering Event, out of its authorized and
unissued shares of Common Stock and/or other securities or out
of its authorized and issued shares held in its treasury), the
number of shares of Preferred Stock (and, following the
occurrence of a Triggering Event, Common Stock and/or other
securities) that, as provided in this Agreement including
Section 11(a)(iii) hereof, will be sufficient to permit the
exercise in full of all outstanding Rights.
(b) So long as the shares of Preferred Stock
(and, following the occurrence of a Triggering Event, Common
Stock and/or other securities) issuable and deliverable upon the
exercise of the Rights may be listed on any national securities
exchange, the Company shall use its best efforts to cause, from
and after such time as the Rights become exercisable, all shares
reserved for such issuance to be listed on such exchange upon
official notice of issuance upon such exercise.
(c) The Company shall use its best efforts to
(i) file, as soon as practicable following the earliest date
after the first occurrence of a Section 11(a)(ii) Event on which
the consideration to be delivered by the Company upon exercise
of the Rights has been determined in accordance with Section
11(a)(iii) hereof, a registration statement under the Securities
Act of 1933 (the "Act"), with respect to the securities
purchasable upon exercise of the Rights on an appropriate form,
(ii) cause such registration statement to become effective as
soon as practicable after such filing, and (iii) cause such
registration statement to remain effective (with a prospectus at
all times meeting the requirements of the Act) until the earlier
of (A) the date as of which the Rights are no longer exercisable
for such securities, and (B) the date of the expiration of the
Rights. The Company will also take such action as may be
appropriate under, or to ensure compliance with, the securities
or "blue sky" laws of the various states in connection with the
exercisability of the Rights. The Company may temporarily
suspend, for a period of time not to exceed ninety (90) days
after the date set forth in clause (i) of the first sentence of
this Section 9(c), the exercisability of the Rights in order to
prepare and file such registration statement and permit it to
become effective. Upon any such suspension, the Company shall
issue a public announcement stating that the exercisability of
the Rights has been temporarily suspended, as well as a public
announcement at such time as the suspension is no longer in
effect. In addition, if the Company shall determine that
a registration statement is required following the Distribution
Date, the Company may temporarily suspend the exercisability of
the Rights until such time as a registration statement has been
declared effective. Notwithstanding any provision of this
Agreement to the contrary, the Rights shall not be exercisable
in any jurisdiction if the requisite qualification in such
jurisdiction shall not have been obtained, the exercise thereof
shall not be permitted under applicable law or a registration
statement shall not have been declared effective.
(d) The Company covenants and agrees that it
will take all such action as may be necessary to ensure that all
one one-hundredths of a share of Preferred Stock (and, following
the occurrence of a Triggering Event, Common Stock and/or other
securities) delivered upon exercise of Rights shall, at the time
of delivery of the certificates for such shares (subject to
payment of the Purchase Price), be duly and validly authorized
and issued and fully paid and nonassessable.
(e) The Company further covenants and agrees
that it will pay when due and payable any and all federal and
state transfer taxes and charges which may be payable in respect
of the issuance or delivery of the Rights Certificates and of
any certificates for a number of one one-hundredths of a share
of Preferred Stock (or Common Stock and/or other securities, as
the case may be) upon the exercise of Rights. The Company shall
not, however, be required to pay any transfer tax which may be
payable in respect of any transfer or delivery of Rights
Certificates to a Person other than, or the issuance or delivery
of a number of one one-hundredths of a share of Preferred Stock
(or Common Stock and/or other securities, as the case may be) in
respect of a name other than that of, the registered holder of
the Rights Certificates evidencing Rights surrendered for
exercise or to issue or deliver any certificates for a number of
one one-hundredths of a share of Preferred Stock (or Common
Stock and/or other securities, as the case may be) in a name
other than that of the registered holder upon the exercise of
any Rights until such tax shall have been paid (any such tax
being payable by the holder of such Rights Certificate at the
time of surrender) or until it has been established to the
Company's satisfaction that no such tax is due.
Section 10. Preferred Stock Record Date. Each person
in whose name any certificate for a number of one one-hundredths
of a share of Preferred Stock (or Common Stock and/or other
securities, as the case may be) is issued upon the exercise of
Rights shall for all purposes be deemed to have become the
holder of record of such fractional shares of Preferred Stock
(or Common Stock and/or other securities, as the case may be)
represented thereby on, and such certificate shall be dated, the
date upon which the Rights Certificate evidencing such Rights
was duly surrendered and payment of the Purchase Price (and all
applicable transfer taxes) was made; provided, however, that if
the date of such surrender and payment is a date upon which the
Preferred Stock (or Common Stock and/or other securities, as the
case may be) transfer books of the Company are closed, such
Person shall be deemed to have become the record holder of such
shares (fractional or otherwise) on, and such certificate shall
be dated, the next succeeding Business Day on which the
Preferred Stock (or Common Stock and/or other securities,
as the case may be) transfer books of the Company are open.
Prior to the exercise of the Rights evidenced thereby, the
holder of a Rights Certificate shall not be entitled to any
rights of a stockholder of the Company with respect to shares
for which the Rights shall be exercisable, including, without
limitation, the right to vote, to receive dividends or other
distributions or to exercise any preemptive rights, and shall
not be entitled to receive any notice of any proceedings of the
Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number and
Kind of Shares or Number of Rights. The Purchase Price, the
number and kind of shares covered by each Right and the number
of Rights outstanding are subject to adjustment from time to
time as provided in this Section 11.
(a) (i) In the event the Company shall at any
time after the date of this Agreement (A) declare a dividend on
the Preferred Stock payable in shares of Preferred Stock, (B)
subdivide the outstanding Preferred Stock, (C) combine the
outstanding Preferred Stock into a smaller number of shares, or
(D) issue any shares of its capital stock in a reclassification
of the Preferred Stock (including any such reclassification in
connection with a consolidation or merger in which the Company
is the continuing or surviving corporation), except as otherwise
provided in this Section 11(a) and Section 7(e) hereof, the
Purchase Price in effect at the time of the record date for such
dividend or of the effective date of such subdivision,
combination or reclassification, and the number and kind of
shares of Preferred Stock or capital stock, as the case may be,
issuable on such date, shall be proportionately adjusted so that
the holder of any Right exercised after such time shall be
entitled to receive, upon payment of the Purchase Price then in
effect, the aggregate number and kind of shares of Preferred
Stock or capital stock, as the case may be, which, if such Right
had been exercised immediately prior to such date and at a time
when the Preferred Stock transfer books of the Company were
open, he would have owned upon such exercise and been entitled
to receive by virtue of such dividend, subdivision, combination
or reclassification. If an event occurs which would require an
adjustment under both this Section 11(a)(i) and Section
11(a)(ii) hereof, the adjustment provided for in this
Section 11(a)(i) shall be in addition to, and shall be made
prior to, any adjustment required pursuant to Section 11(a)(ii)
hereof.
(ii) In the event any Person (other than the
Company, any Subsidiary of the Company, any employee benefit
plan of the Company or of any Subsidiary of the Company, or any
Person or entity organized, appointed or established by the
Company for or pursuant to the terms of any such plan), alone or
together with its Affiliates and Associates, shall, at any time
after the Rights Dividend Declaration Date, become the
Beneficial Owner of 20% or more of the shares of Common Stock
then outstanding, unless the event causing the 20% threshold to
be crossed is a transaction set forth in Section 13(a) hereof,
or is an acquisition of shares of Common Stock pursuant to a
tender offer or an exchange offer for all outstanding shares of
Common Stock at a price and on terms determined by at least a
majority of the members of the Board of Directors who are not
officers of the Company and who are not representatives,
nominees, Affiliates or Associates of the Person
making such tender or exchange offer, after receiving advice
from one or more investment banking firms, to be (a) at a price
which is fair to stockholders (taking into account all factors
which such members of the Board deem relevant including, without
limitation, prices which could reasonably be achieved if the
Company or its assets were sold on an orderly basis designed to
realize maximum value) and (b) otherwise in the best interests
of the Company and its stockholders, then, promptly following
the occurrence of such event, proper provision shall be made so
that each holder of a Right (except as provided below and in
Section 7(e) hereof) shall thereafter have the right to receive,
upon exercise thereof at the then current Purchase Price in
accordance with the terms of this Agreement, in lieu of a number
of one one-hundredths of a share of Preferred Stock, such number
of shares of Common Stock of the Company as shall equal the
result obtained by (x) multiplying the then current Purchase
Price by the then number of one one-hundredths of a share of
Preferred Stock for which a Right was exercisable immediately
prior to the first occurrence of a Section 11(a)(ii) Event, and
(y) dividing that product (which, following such first
occurrence, shall thereafter be referred to as the
"Purchase Price" for each Right and for all purposes of this
Agreement) by 50% of the Current Market Price (determined
pursuant to Section 11(d) hereof) per share of Common Stock on
the date of such first occurrence (such number of shares, the
"Adjustment Shares").
(iii) In the event that the number of shares
of Common Stock which are authorized by the Company's
certificate of incorporation but not outstanding or reserved for
issuance for purposes other than upon exercise of the Rights is
not sufficient to permit the exercise in full of the Rights in
accordance with the foregoing subparagraph (ii) of this Section
11(a), the Company shall (A) determine the value of the
Adjustment Shares issuable upon the exercise of a Right (the
"Current Value"), and (B) with respect to each Right (subject to
Section 7(e) hereof), make adequate provision to substitute for
the Adjustment Shares, upon the exercise of a Right and payment
of the applicable Purchase Price, (1) cash, (2) a reduction in
the Purchase Price, (3) Common Stock or other equity securities
of the Company (including, without limitation, shares, or units
of shares, of preferred stock, such as the Preferred Stock,
which the Board has deemed to have essentially the same value or
economic rights as shares of Common Stock (such shares of
preferred stock being referred to as "Common Stock
Equivalents")), (4) debt securities of the Company, (5) other
assets, or (6) any combination of the foregoing, having an
aggregate value equal to the Current Value (less the amount of
any reduction in the Purchase Price), where such aggregate value
has been determined by the Board based upon the advice of a
nationally recognized investment banking firm selected by the
Board; provided, however, that if the Company shall not have
made adequate provision to deliver value pursuant to clause (B)
above within thirty (30) days following the later of (x) the
first occurrence of a Section 11(a)(ii) Event and (y) the date
on which the Company's right of redemption pursuant to Section
23(a) expires (the later of (x) and (y) being referred to herein
as the "Section 11(a)(ii) Trigger Date"), then the Company shall
be obligated to deliver, upon the surrender for exercise of a
Right and without requiring payment of the Purchase Price,
shares of Common Stock (to the extent available) and then, if
necessary, cash, which shares and/or cash have an aggregate
value equal to the Spread. For purposes of the preceding
sentence, the term "Spread" shall mean the excess of (i)
the Current Value over (ii) the Purchase Price. If the Board
determines in good faith that it is likely that sufficient
additional shares of Common Stock could be authorized for
issuance upon exercise in full of the Rights, the thirty (30)
day period set forth above may be extended to the extent
necessary, but not more than ninety (90) days after the Section
11(a)(ii) Trigger Date, in order that the Company may seek
shareholder approval for the authorization of such additional
shares (such thirty (30) day period, as it may be extended, is
herein called the "Substitution Period"). To the extent that
action is to be taken pursuant to the first and/or third
sentences of this Section 11(a)(iii), the Company (1) shall
provide, subject to Section 7(e) hereof, that such action shall
apply uniformly to all outstanding Rights, and
(2) may suspend the exercisability of the Rights until the
expiration of the Substitution Period in order to seek such
shareholder approval for such authorization of additional shares
and/or to decide the appropriate form of distribution to be made
pursuant to such first sentence and to determine the value
thereof. In the event of any such suspension, the Company shall
issue a public announcement stating that the exercisability of
the Rights has been temporarily suspended, as well as a public
announcement at such time as the suspension is no longer in
effect. For purposes of this Section 11(a)(iii), the value of
each Adjustment Share shall be the Current Market Price per
share of the Common Stock on the Section 11(a)(ii) Trigger Date
and the per share or per unit value of any Common Stock
Equivalent shall be deemed to equal the Current Market Price per
share of the Common Stock on such date.
(b) In case the Company shall fix a record date
for the issuance of rights, options or warrants to all holders
of Preferred Stock entitling them to subscribe for or purchase
(for a period expiring within forty-five (45) calendar days
after such record date) Preferred Stock (or shares having the
same rights, privileges and preferences as the shares of
Preferred Stock ("equivalent preferred stock")) or securities
convertible into Preferred Stock or equivalent preferred stock
at a price per share of Preferred Stock or per share of
equivalent preferred stock (or having a conversion price per
share, if a security convertible into Preferred Stock or
equivalent preferred stock) less than the Current Market Price
(as determined pursuant to Section 11(d) hereof) per share of
Preferred Stock on such record date, the Purchase Price to be in
effect after such record date shall be determined by multiplying
the Purchase Price in effect immediately prior to such record
date by a fraction, the numerator of which shall be the number
of shares of Preferred Stock outstanding on such record date,
plus the number of shares of Preferred Stock which the aggregate
offering price of the total number of shares of Preferred Stock
and/or equivalent preferred stock so to be offered
(and/or the aggregate initial conversion price of the
convertible securities so to be offered) would purchase at such
Current Market Price, and the denominator of which shall be the
number of shares of Preferred Stock outstanding on such record
date, plus the number of additional shares of Preferred Stock
and/or equivalent preferred stock to be offered for subscription
or purchase (or into which the convertible securities so to be
offered are initially convertible). In case such subscription
price may be paid by delivery of consideration part or all of
which may be in a form other than cash, the value of such
consideration shall be as determined in good faith by the Board
of Directors of the Company, whose determination shall be
described in a statement filed with the Rights Agent and shall
be binding on the Rights Agent and the holders of the Rights.
Shares of Preferred Stock owned by or held for the account of
the Company shall not be deemed outstanding for the purpose of
any such computation. Such adjustment shall be made
successively whenever such a record date is fixed, and in the
event that such rights or warrants are not so issued, the
Purchase Price shall be adjusted to be the Purchase Price which
would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date
for a distribution to all holders of Preferred Stock (including
any such distribution made in connection with a consolidation or
merger in which the Company is the continuing corporation) of
evidences of indebtedness, cash (other than a cash dividend out
of the earnings or retained earnings of the Company not in
excess of 200% of the regular quarterly cash dividend), assets
(other than a dividend payable in Preferred Stock, but including
any dividend payable in stock other than Preferred Stock) or
subscription rights or warrants (excluding those referred to in
Section 11(b) hereof), the Purchase Price to be in effect after
such record date shall be determined by multiplying the Purchase
Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the Current Market
Price (as determined pursuant to Section 11(d) hereof) per share
of Preferred Stock on such record date, less the fair market
value (as determined in good faith by the Board of Directors of
the Company, whose determination shall be described in a
statement filed with the Rights Agent) of the portion of the
cash, assets or evidences of indebtedness so to be
distributed or of such subscription rights or warrants
applicable to a share of Preferred Stock and the denominator of
which shall be such current market price (as determined pursuant
to Section 11(d) hereof) per share of Preferred Stock. Such
adjustments shall be made successively whenever such a record
date is fixed, and in the event that such distribution is not so
made, the Purchase Price shall be adjusted to be the Purchase
Price which would have been in effect if such record date had
not been fixed.
(d) (i) For the purpose of any computation
hereunder, other than computations made pursuant to Section
11(a)(iii) hereof, the "Current Market Price" per share of
Common Stock on any date shall be deemed to be the average of
the daily closing prices per share of such Common Stock for the
thirty (30) consecutive Trading Days immediately prior to such
date, and for purposes of computations made pursuant to Section
11(a)(iii) hereof, the "Current Market Price" per share of
Common Stock on any date shall be deemed to be the average of
the daily closing prices per share of such Common Stock for the
ten (10) consecutive Trading Days immediately following such
date; provided, however, that in the event that the Current
Market Price per share of the Common Stock is determined during
a period following the announcement by the issuer of such Common
Stock of (A) a dividend or distribution on such Common Stock
payable in shares of such Common Stock or securities convertible
into shares of such Common Stock (other than the Rights), or (B)
any subdivision, combination or reclassification of such Common
Stock, and the ex-dividend date for such dividend or
distribution, or the record date for such subdivision,
combination or reclassification shall not have occurred prior to
the commencement of the requisite thirty (30) Trading Day or ten
(10) Trading Day period, as set forth above, then, and in each
such case, the Current Market Price shall be properly adjusted
to take into account ex-dividend trading. The closing price for
each day shall be the last sale price, regular way, or, in case
no such sale takes place on such day, the average of the closing
bid and asked prices, regular way, in either case as reported in
the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the New
York Stock Exchange or, if the shares of Common Stock are not
listed or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting
system with respect to securities listed on the principal
national securities exchange on which the shares of Common Stock
are listed or admitted to trading or, if the shares of Common
Stock are not listed or admitted to trading on any national
securities exchange, the last quoted price or, if not so quoted,
the average of the high bid and low asked prices in the
over-the-counter market, as reported by the National Association
of Securities Dealers, Inc. Automated Quotation System
("NASDAQ") or such other system then in use, or,
if on any such date the shares of Common Stock are not quoted by
any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a
market in the Common Stock selected by the Board. If on any
such date no market maker is making a market in the Common
Stock, the fair value of such shares on such date as determined
in good faith by the Board shall be used. The term "Trading
Day" shall mean a day on which the principal national securities
exchange on which the shares of Common Stock are listed or
admitted to trading is open for the transaction of business or,
if the shares of Common Stock are not listed or admitted to
trading on any national securities exchange, a Business Day. If
the Common Stock is not publicly held or not so listed or
traded, Current Market Price per share shall mean the fair value
per share as determined in good faith by the Board, whose
determination shall be described in a statement filed
with the Rights Agent and shall be conclusive for all purposes.
(ii) For the purpose of any computation
hereunder, the "Current Market Price" per share of Preferred
Stock shall be determined in the same manner as set forth above
for the Common Stock in clause (i) of this Section 11(d) (other
than the last sentence thereof). If the Current Market Price
per share of Preferred Stock cannot be determined in the manner
provided above or if the Preferred Stock is not publicly held or
listed or traded in a manner described in clause (i) of this
Section 11(d), the Current Market Price per share of Preferred
Stock shall be conclusively deemed to be an amount equal to 100
(as such number may be appropriately adjusted for such events as
stock splits, stock dividends and recapitalizations with respect
to the Common Stock occurring after the date of this Agreement)
multiplied by the Current Market Price per share of the Common
Stock. If neither the Common Stock nor the Preferred Stock is
publicly held or so listed or traded, Current Market Price per
share of the Preferred Stock shall mean the fair value per share
as determined in good faith by the Board, whose determination
shall be described in a statement filed with the Rights Agent
and shall be conclusive for all purposes.
(e) Anything herein to the contrary notwith-
standing, no adjustment in the Purchase Price shall be required
unless such adjustment would require an increase or decrease of
at least one percent (1%) in the Purchase Price; provided,
however, that any adjustments which by reason of this Section
11(e) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All
calculations under this Section 11 shall be made to the nearest
cent or to the nearest ten-thousandth of a share of Common Stock
or other share or one-millionth of a share of Preferred Stock,
as the case may be. Notwithstanding the first sentence of this
Section 11(e), any adjustment required by this Section 11 shall
be made no later than the earlier of (i) three (3) years from
the date of the transaction which mandates such adjustment, or
(ii) the Expiration Date.
(f) If as a result of an adjustment made
pursuant to Section 11(a)(ii) or Section 13(a) hereof, the
holder of any Right thereafter exercised shall become entitled
to receive any shares of capital stock other than Preferred
Stock, thereafter the number of such other shares so receivable
upon exercise of any Right and the Purchase Price thereof shall
be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with
respect to the Preferred Stock contained in Sections 11(a), (b),
(c), (e), (g), (h), (i), (j), (k) and (m), and the provisions of
Sections 7, 9, 10, 13 and 14 hereof with respect to the
Preferred Stock shall apply on like terms to any such other
shares.
(g) All Rights originally issued by the Company
subsequent to any adjustment made to the Purchase Price
hereunder shall evidence the right to purchase, at the adjusted
Purchase Price, the number of one one-hundredths of a share of
Preferred Stock purchasable from time to time hereunder upon
exercise of the Rights, all subject to further adjustment as
provided herein.
(h) Unless the Company shall have exercised its
election as provided in Section 11(i), upon each adjustment of
the Purchase Price as a result of the calculations made in
Sections 11(b) and (c), each Right outstanding immediately prior
to the making of such adjustment shall thereafter evidence the
right to purchase, at the adjusted Purchase Price, that number
of one one-hundredths of a share of Preferred Stock (calculated
to the nearest one-millionth) obtained by (i) multiplying (x)
the number of one one-hundredths of a share covered by a Right
immediately prior to this adjustment, by (y) the Purchase Price
in effect immediately prior to such adjustment of the Purchase
Price, and (ii) dividing the product so obtained by the Purchase
Price in effect immediately after such adjustment of the
Purchase Price.
(i) The Company may elect on or after the date
of any adjustment of the Purchase Price to adjust the number of
Rights, in lieu of any adjustment in the number of one
one-hundredths of a share of Preferred Stock purchasable upon
the exercise of a Right. Each of the Rights outstanding after
the adjustment in the number of Rights shall be exercisable for
the number of one one-hundredths of a share of Preferred Stock
for which a Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such adjustment
of the number of Rights shall become that number of Rights
(calculated to the nearest one-ten-thousandth) obtained by
dividing the Purchase Price in effect immediately prior to
adjustment of the Purchase Price by the Purchase Price in effect
immediately after adjustment of the Purchase Price. The Company
shall make a public announcement of its election to adjust the
number of Rights, indicating the record date for the adjustment,
and, if known at the time, the amount of the adjustment to be
made. This record date may be the date on which the Purchase
Price is adjusted or any day thereafter, but, if
the Rights Certificates have been issued, shall be at least ten
(10) days later than the date of the public announcement. If
Rights Certificates have been issued, upon each adjustment of
the number of Rights pursuant to this Section 11(i), the Company
shall, as promptly as practicable, cause to be distributed to
holders of record of Rights Certificates on such record date
Rights Certificates evidencing, subject to Section 14 hereof,
the additional Rights to which such holders shall be entitled as
a result of such adjustment, or, at the option of the Company,
shall cause to be distributed to such holders of record in
substitution and replacement for the Rights Certificates held by
such holders prior to the date of adjustment, and upon surrender
thereof, if required by the Company, new Rights Certificates
evidencing all the Rights to which such holders shall be
entitled after such adjustment. Rights Certificates so to be
distributed shall be issued, executed and countersigned in the
manner provided for herein (and may bear, at the option of the
Company, the adjusted Purchase Price) and shall be registered in
the names of the holders of record of Rights Certificates on the
record date specified in the public announcement.
(j) Irrespective of any adjustment or change in
the Purchase Price or the number of one one-hundredths of a
share of Preferred Stock issuable upon the exercise of the
Rights, the Rights Certificates theretofore and thereafter
issued may continue to express the Purchase Price per one
one-hundredth of a share and the number of one one-hundredth of
a share which were expressed in the initial Rights Certificates
issued hereunder.
(k) Before taking any action that would cause an
adjustment reducing the Purchase Price below the then stated
value, if any, of the number of one one-hundredths of a share of
Preferred Stock issuable upon exercise of the Rights, the
Company shall take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Company
may validly and legally issue fully paid and nonassessable such
number of one one-hundredths of a share of Preferred Stock at
such adjusted Purchase Price.
(l) In any case in which this Section 11 shall
require that an adjustment in the Purchase Price be made
effective as of a record date for a specified event, the Company
may elect to defer until the occurrence of such event the
issuance to the holder of any Right exercised after such record
date the number of one one-hundredths of a share of Preferred
Stock and other capital stock or securities of the Company, if
any, issuable upon such exercise over and above the number of
one one-hundredths of a share of Preferred Stock and other
capital stock or securities of the Company, if any, issuable
upon such exercise on the basis of the Purchase Price in effect
prior to such adjustment; provided, however, that the Company
shall deliver to such holder a due bill or other appropriate
instrument evidencing such holder's right to receive such
additional shares (fractional or otherwise) or
securities upon the occurrence of the event requiring such
adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to the
extent that in their good faith judgment the Board of Directors
of the Company shall determine to be advisable in order that any
(i) consolidation or subdivision of the Preferred Stock, (ii)
issuance wholly for cash of any shares of Preferred Stock at
less than the Current Market Price, (iii) issuance wholly for
cash of shares of Preferred Stock or securities which by their
terms are convertible into or exchangeable for shares of
Preferred Stock, (iv) stock dividends or (v) issuance of rights,
options or warrants referred to in this Section 11, hereafter
made by the Company to holders of its Preferred Stock shall not
be taxable to such stockholders.
(n) The Company covenants and agrees that it
shall not, at any time after the Distribution Date, (i)
consolidate with any other Person (other than a Subsidiary of
the Company in a transaction which complies with Section 11(o)
hereof), (ii) merge with or into any other Person (other than a
Subsidiary of the Company in a transaction which complies with
Section 11(o) hereof), or (iii) sell or transfer (or permit any
Subsidiary to sell or transfer), in one transaction, or a series
of related transactions, assets, cash flow or earning power
aggregating more than 50% of the assets, cash flow or earning
power of the Company and its Subsidiaries (taken as a whole) to
any other Person or Persons (other than the Company and/or any
of its Subsidiaries in one or more transactions each of which
complies with Section 11(o) hereof), if (x) at the time of or
immediately after such consolidation, merger or sale there are
any rights, warrants or other instruments or securities
outstanding or agreements in effect which would substantially
diminish or otherwise eliminate the benefits intended to be
afforded by the Rights or (y) prior to, simultaneously with or
immediately after such consolidation, merger or sale, the
shareholders of the Person who constitutes, or would
constitute, the "Principal Party" for purposes of Section 13(a)
hereof shall have received a distribution of Rights previously
owned by such Person or any of its Affiliates and Associates.
(o) The Company covenants and agrees that, after
the Distribution Date, it will not, except as permitted by
Section 23 or Section 26 hereof, take (or permit any Subsidiary
to take) any action if at the time such action is taken it is
reasonably foreseeable that such action will diminish
substantially or otherwise eliminate the benefits intended to be
afforded by the Rights.
(p) Anything in this Agreement to the contrary
notwithstanding, in the event that the Company shall at any time
after the Rights Dividend Declaration Date and prior to the
Distribution Date (i) declare a dividend on the outstanding
shares of Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding shares of Common Stock, or (iii)
combine the outstanding shares of Common Stock into a smaller
number of shares, the number of Rights associated with each
share of Common Stock then outstanding, or issued or delivered
thereafter but prior to the Distribution Date, shall be
proportionately adjusted so that the number of Rights thereafter
associated with each share of Common Stock following any such
event shall equal the result obtained by multiplying the number
of Rights associated with each share of Common Stock immediately
prior to such event by a fraction the numerator which shall be
the total number of shares of Common Stock outstanding
immediately prior to the occurrence of the event and the
denominator of which shall be the total number of shares of
Common Stock outstanding immediately following the occurrence of
such event.
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares. Whenever an adjustment is made as provided in
Section 11 and Section 13 hereof, the Company shall (a) promptly
prepare a certificate setting forth such adjustment and a brief
statement of the facts accounting for such adjustment, (b)
promptly file with the Rights Agent, and with each transfer
agent for the Preferred Stock and the Common Stock, a copy of
such certificate, and (c) mail a brief summary thereof to each
holder of a Rights Certificate (or, if prior to the Distribution
Date, to each holder of a certificate representing shares of
Common Stock) in accordance with Section 25 hereof. The Rights
Agent shall be fully protected in relying on any such
certificate and on any adjustment therein contained.
Section 13. Consolidation, Merger or Sale or Transfer
of Assets, Cash Flow or Earning Power. (a) In the event that,
following the Stock Acquisition Date, directly or indirectly,
(x) the Company shall consolidate with, or merge with and into,
any other Person (other than a Subsidiary of the Company in a
transaction which complies with Section 11(o) hereof), and the
Company shall not be the continuing or surviving corporation of
such consolidation or merger, (y) any Person (other than a
Subsidiary of the Company in a transaction which complies with
Section 11(o) hereof) shall consolidate with, or merge with or
into, the Company, and the Company shall be the continuing or
surviving corporation of such consolidation or merger and, in
connection with such consolidation or merger, all or part of the
outstanding shares of Common Stock shall be changed into or
exchanged for stock or other securities of any other Person or
cash or any other property, or (z) the Company shall sell or
otherwise transfer (or one or more of its Subsidiaries shall
sell or otherwise transfer), in one transaction or a series of
related transactions, assets, cash flow or earning power
aggregating more than 50% of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to any Person or
Persons (other than the Company or any Subsidiary of the Company
in one or more transactions each of which complies with Section
11(o) hereof), then, and in each such case (except as may be
contemplated by Section 13(d) hereof), proper provision shall be
made so that: (i) each holder of a Right, except as provided in
Section 7(e) hereof, shall thereafter have the right to receive,
upon the exercise thereof at the then current Purchase Price in
accordance with the terms of this Agreement, such number of
validly authorized and issued, fully paid, non-assessable and
freely tradeable shares of Common Stock of the Principal Party
(as such term is hereinafter defined), not subject to any liens,
encumbrances, rights of first refusal or other adverse claims,
as shall be equal to the result obtained by (1) multiplying the
then current Purchase Price by the number of one one-hundredths
of a share of Preferred Stock for which a Right is exercisable
immediately prior to the first occurrence of a Section 13 Event
(or, if a Section 11(a)(ii) Event has occurred prior to the
first occurrence of a Section 13 Event, multiplying the number
of such one one-hundredths of a share for which a Right was
exercisable immediately prior to the first occurrence of a
Section 11(a)(ii) Event by the Purchase Price in
effect immediately prior to such first occurrence), and dividing
that product (which, following the first occurrence of a Section
13 Event, shall be referred to as the "Purchase Price" for each
Right and for all purposes of this Agreement) by (2) 50% of the
Current Market Price (determined pursuant to Section 11(d)(i)
hereof) per share of the Common Stock of such Principal Party on
the date of consummation of such Section 13 Event; (ii) such
Principal Party shall thereafter be liable for, and shall
assume, by virtue of such Section 13 Event, all the obligations
and duties of the Company pursuant to this Agreement; (iii) the
term "Company" shall thereafter be deemed to refer to such
Principal Party, it being specifically intended that the
provisions of Section 11 hereof shall apply only to such
Principal Party following the first occurrence of a Section 13
Event; (iv) such Principal Party shall take such steps
(including, but not limited to, the reservation of
a sufficient number of shares of its Common Stock) in connection
with the consummation of any such transaction as may be
necessary to assure that the provisions hereof shall thereafter
be applicable, as nearly as reasonably may be, in relation to
its shares of Common Stock thereafter deliverable upon the
exercise of the Rights; and (v) the provisions of Section
11(a)(ii) hereof shall be of no effect following the first
occurrence of any Section 13 Event.
(b) "Principal Party" shall mean
(i) in the case of any transaction
described in clause (x) or (y) of the first sentence of Section
13(a), the Person that is the issuer of any securities into
which shares of Common Stock of the Company are converted in
such merger or consolidation, and if no securities are so
issued, the Person that is the other party to such merger or
consolidation; and
(ii) in the case of any transaction
described in clause (z) of the first sentence of Section 13(a),
the Person that is the party receiving the greatest portion of
the assets, cash flow or earning power transferred pursuant to
such transaction or transactions;
provided, however, that in any such case, (1) if the Common
Stock of such Person is not at such time and has not been
continuously over the preceding twelve (12) month period
registered under Section 12 of the Exchange Act, and such Person
is a direct or indirect Subsidiary of another Person the Common
Stock of which is and has been so registered, "Principal Party"
shall refer to such other Person; and (2) in case such Person is
a Subsidiary, directly or indirectly, of more than one Person,
the Common Stocks of two or more of which are and have been so
registered, "Principal Party" shall refer to whichever of such
Persons is the issuer of the Common Stock having the greatest
aggregate market value.
(c) The Company shall not consummate any such
consolidation, merger, sale or transfer unless the Principal
Party shall have a sufficient number of authorized shares of its
Common Stock which have not been issued or reserved for issuance
to permit the exercise in full of the Rights in accordance with
this Section 13 and unless prior thereto the Company and such
Principal Party shall have executed and delivered to the Rights
Agent a supplemental agreement providing for the terms set forth
in paragraphs (a) and (b) of this Section 13 and further
providing that, as soon as practicable after the date of any
consolidation, merger or sale of assets, cash flow or earnings
power mentioned in paragraph (a) of this Section 13, the
Principal Party will
(i) prepare and file a registration
statement under the Act, with respect to the Rights and the
securities purchasable upon exercise of the Rights on an
appropriate form, and will use its best efforts to cause such
registration statement to (A) become effective as soon as
practicable after such filing and (B) remain effective (with a
prospectus at all times meeting the requirements of the Act)
until the Expiration Date; and
(ii) will deliver to holders of the Rights
historical financial statements for the Principal Party and each
of its Affiliates which comply in all respects with the
requirements for registration on Form 10 under the Exchange Act.
The provisions of this Section 13 shall similarly apply to
successive mergers or consolidations or sales or other
transfers. In the event that a Section 13 Event shall occur at
any time after the occurrence of a Section 11(a)(ii) Event, the
Rights which have not theretofore been exercised shall
thereafter become exercisable in the manner described in Section
13(a).
(d) Notwithstanding anything in this Agreement
to the contrary, Section 13 shall not be applicable to a
transaction described in subparagraphs (x) and (y) of Section
13(a) if (i) such transaction is consummated with a Person or
Persons who acquired shares of Common Stock pursuant to a tender
offer or exchange offer for all outstanding shares of Common
Stock which complies with the provisions of Section 11(a)(ii)
hereof (or a wholly owned subsidiary of any such Person or
Persons), (ii) the price per share of Common Stock offered in
such transaction is not less than the price per share of Common
Stock paid to all holders of shares of Common Stock whose shares
were purchased pursuant to such tender offer or exchange offer
and (iii) the form of consideration being offered to the
remaining holders of shares of Common Stock pursuant
to such transaction is the same as the form of consideration
paid pursuant to such tender offer or exchange offer. Upon
consummation of any such transaction contemplated by this
Section 13(d), all Rights hereunder shall expire.
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of
Rights, except prior to the Distribution Date as provided in
Section 11(p) hereof, or to distribute Rights Certificates which
evidence fractional Rights. In lieu of such fractional Rights,
there shall be paid to the registered holders of the Rights
Certificates with regard to which such fractional Rights would
otherwise be issuable, an amount in cash equal to the same
fraction of the current market value of a whole Right. For
purposes of this Section 14(a), the current market value of a
whole Right shall be the closing price of the Rights for the
Trading Day immediately prior to the date on which such
fractional Rights would have been otherwise issuable. The
closing price of the Rights for any day shall be the last sale
price, regular way, or, in case no such sale takes place on such
day, the average of the closing bid and asked prices, regular
way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed
or admitted to trading on the New York Stock Exchange or, if the
Rights are not listed or admitted to trading on the New York
Stock Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities listed
on the principal national securities exchange on which the
Rights are listed or admitted to trading, or if the
Rights are not listed or admitted to trading on any national
securities exchange, the last quoted price or, if not so quoted,
the average of the high bid and low asked prices in the
over-the-counter market, as reported by NASDAQ or such other
system then in use or, if on any such date the Rights are not
quoted by any such organization, the average of the closing bid
and asked prices as furnished by a professional market maker
making a market in the Rights selected by the Board of Directors
of the Company. If on any such date no such market maker is
making a market in the Rights the fair value of the Rights on
such date as determined in good faith by the Board of Directors
of the Company shall be used.
(b) The Company shall not be required to issue
fractions of shares of Preferred Stock (other than fractions
which are integral multiples of one one-hundredth of a share of
Preferred Stock) upon exercise of the Rights or to distribute
certificates which evidence fractional shares of Preferred Stock
(other than fractions which are integral multiples of one
one-hundredth of a share of Preferred Stock). In lieu of
fractional shares of Preferred Stock that are not integral
multiples of one one-hundredth of a share of Preferred Stock,
the Company may pay to the registered holders of Rights
Certificates at the time such Rights are exercised as herein
provided an amount in cash equal to the same fraction of the
current market value of one one-hundredth of a share of
Preferred Stock. For purposes of this Section 14(b),
the current market value of one one-hundredth of a share of
Preferred Stock shall be one one-hundredth of the closing price
of a share of Preferred Stock (as determined pursuant to Section
11(d)(ii) hereof) for the Trading Day immediately prior to the
date of such exercise.
(c) Following the occurrence of a Triggering
Event, the Company shall not be required to issue fractions of
shares of Common Stock upon exercise of the Rights or to
distribute certificates which evidence fractional shares of
Common Stock. In lieu of fractional shares of Common Stock, the
Company may pay to the registered holders of Rights Certificates
at the time such Rights are exercised as herein provided an
amount in cash equal to the same fraction of the current market
value of one (1) share of Common Stock. For purposes of this
Section 14(c), the current market value of one share of Common
Stock shall be the closing price of one share of Common Stock
(as determined pursuant to Section 11(d)(i) hereof) for the
Trading Day immediately prior to the date of such exercise.
(d) The holder of a Right by the acceptance of
the Rights expressly waives his right to receive any fractional
Rights or any fractional shares upon exercise of a Right, except
as permitted by this Section 14.
Section 15. Rights of Action. All rights of action
in respect of this Agreement are vested in the respective
registered holders of the Rights Certificates (and, prior to the
Distribution Date, the registered holders of the Common Stock);
and any registered holder of any Rights Certificate (or, prior
to the Distribution Date, of the Common Stock), without the
consent of the Rights Agent or of the holder of any other Rights
Certificate (or, prior to the Distribution Date, of the Common
Stock), may, in his own behalf and for his own benefit, enforce,
and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise act in respect of,
his right to exercise the Rights evidenced by such Rights
Certificate in the manner provided in such Rights Certificate
and in this Agreement. Without limiting the foregoing or any
remedies available to the holders of Rights, it is specifically
acknowledged that the holders of Rights would not have an
adequate remedy at law for any breach of this Agreement
and shall be entitled to specific performance of the obligations
hereunder and injunctive relief against actual or threatened
violations of the obligations hereunder of any Person subject to
this Agreement.
Section 16. Agreement of Rights Holders. Every
holder of a Right by accepting the same consents and agrees with
the Company and the Rights Agent and with every other holder of
a Right that:
(a) prior to the Distribution Date, the Rights
will be transferable only in connection with the transfer of
Common Stock;
(b) after the Distribution Date, the Rights
Certificates are transferable only on the registry books of the
Rights Agent if surrendered at the principal office or offices
of the Rights Agent designated for such purposes, duly endorsed
or accompanied by a proper instrument of transfer and with the
appropriate forms and certificates fully executed;
(c) subject to Section 6(a) and Section 7(f)
hereof, the Company and the Rights Agent may deem and treat the
person in whose name a Rights Certificate (or, prior to the
Distribution Date, the associated Common Stock certificate) is
registered as the absolute owner thereof and of the Rights
evidenced thereby (notwithstanding any notations of ownership or
writing on the Rights Certificates or the associated Common
Stock certificate made by anyone other than the Company or the
Rights Agent) for all purposes whatsoever, and neither the
Company nor the Rights Agent, subject to the last sentence of
Section 7(e) hereof, shall be required to be affected by any
notice to the contrary; and
(d) notwithstanding anything in this Agreement
to the contrary, neither the Company nor the Rights Agent shall
have any liability to any holder of a Right or other Person as a
result of its inability to perform any of its obligations under
this Agreement by reason of any preliminary or permanent
injunction or other order, decree or ruling issued by a court of
competent jurisdiction or by a governmental, regulatory or
administrative agency or commission, or any statute, rule,
regulation or executive order promulgated or enacted by any
governmental authority, prohibiting or otherwise restraining
performance of such obligation; provided, however, the Company
must use its best efforts to have any such order, decree or
ruling lifted or otherwise overturned as soon as possible.
Section 17. Rights Certificate Holder Not Deemed a
Stockholder. No holder, as such, of any Rights Certificate
shall be entitled to vote, receive dividends or be deemed for
any purpose the holder of the number of one one-hundredths of a
share of Preferred Stock or any other securities of the Company
which may at any time be issuable on the exercise of the Rights
represented thereby, nor shall anything contained herein or in
any Rights Certificate be construed to confer upon the holder of
any Rights Certificate, as such, any of the rights of a
stockholder of the Company or any right to vote for the election
of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate
action, or to receive notice of meetings or other actions
affecting stockholders (except as provided in Section 24
hereof), or to receive dividends or subscription rights, or
otherwise, until the Right or Rights evidenced by such Rights
Certificate shall have been exercised in accordance with the
provisions hereof.
Section 18. Concerning the Rights Agent. (a) The
Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from
time to time, on demand of the Rights Agent, its reasonable
expenses and counsel fees and disbursements and other
disbursements incurred in the administration and execution of
this Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights
Agent for, and to hold it harmless against, any loss, liability,
or expense, incurred without negligence, bad faith or willful
misconduct on the part of the Rights Agent, for anything done or
omitted by the Rights Agent in connection with the
acceptance and administration of this Agreement, including the
costs and expenses of defending against any claim of liability
in the premises.
(b) The Rights Agent shall be protected and
shall incur no liability for or in respect of any action taken,
suffered or omitted by it in connection with its administration
of this Agreement in reliance upon any Rights Certificate or
certificate for Common Stock or for other securities of the
Company, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction,
consent, certificate, statement, or other paper or document
believed by it to be genuine and to be signed, executed and,
where necessary, verified or acknowledged, by the proper Person
or Persons.
Section 19. Merger or Consolidation or Change of Name
of Rights Agent. (a) Any corporation into which the Rights
Agent or any successor Rights Agent may be merged or with which
it may be consolidated, or any corporation resulting from any
merger or consolidation to which the Rights Agent or any
successor Rights Agent shall be a party, or any corporation
succeeding to the corporate trust business of the Rights Agent
or any successor Rights Agent, shall be the successor to the
Rights Agent under this Agreement without the execution or
filing of any paper or any further act on the part of any of the
parties hereto; provided, however, that such corporation would
be eligible for appointment as a successor Rights Agent under
the provisions of Section 21 hereof. In case at the time such
successor Rights Agent shall succeed to the agency created by
this Agreement, any of the Rights Certificates shall have been
countersigned but not delivered, any such successor Rights Agent
may adopt the countersignature of a predecessor Rights Agent and
deliver such Rights Certificates so countersigned; and in case
at that time any of the Rights Certificates shall not have been
countersigned, any successor Rights Agent may countersign such
Rights Certificates either in the name of the predecessor or in
the name of the successor Rights Agent; and in all such cases
such Rights Certificates shall have the full force provided in
the Rights Certificates and in this Agreement.
(b) In case at any time the name of the Rights
Agent shall be changed and at such time any of the Rights
Certificates shall have been countersigned but not delivered,
the Rights Agent may adopt the countersignature under its prior
name and deliver Rights Certificates so countersigned; and in
case at that time any of the Rights Certificates shall not have
been countersigned, the Rights Agent may countersign such Rights
Certificates either in its prior name or in its changed name;
and in all such cases such Rights Certificates shall have the
full force provided in the Rights Certificates and in this
Agreement.
Section 20. Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations imposed by this Agreement
upon the following terms and conditions, by all of which the
Company and the holders of Rights Certificates, by their
acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal
counsel (who may be legal counsel for the Company), and the
opinion of such counsel shall be full and complete authorization
and protection to the Rights Agent as to any action taken or
omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties
under this Agreement the Rights Agent shall deem it necessary or
desirable that any fact or matter (including, without
limitation, the identity of any Acquiring Person and the
determination of "current market price") be proved or
established by the Company prior to taking or suffering any
action hereunder, such fact or matter (unless other evidence in
respect thereof be herein specifically prescribed) may be deemed
to be conclusively proved and established by a certificate
signed by the Chairman of the Board, the President, any Vice
President, the Treasurer, any Assistant Treasurer, the Secretary
or any Assistant Secretary of the Company and delivered to the
Rights Agent; and such certificate shall be full authorization
to the Rights Agent for any action taken or suffered in good
faith by it under the provisions of this Agreement in reliance
upon such certificate.
(c) The Rights Agent shall be liable hereunder
only for its own negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or
by reason of any of the statements of fact or recitals contained
in this Agreement or in the Rights Certificates or be required
to verify the same (except as to its countersignature on such
Rights Certificates), but all such statements and recitals are
and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any
responsibility in respect of the validity of this Agreement or
the execution and delivery hereof (except the due execution
hereof by the Rights Agent) or in respect of the validity or
execution of any Rights Certificate (except its countersignature
thereof); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement
or in any Rights Certificate; nor shall it be responsible for
any adjustment required under the provisions of Section 11 or
Section 13 hereof or responsible for the manner, method or
amount of any such adjustment or the ascertaining of the
existence of facts that would require any such
adjustment (except with respect to the exercise of Rights
evidenced by Rights Certificates after actual notice of any such
adjustment); nor shall it by any act hereunder be deemed to make
any representation or warranty as to the authorization or
reservation of any shares of Common Stock or Preferred Stock to
be issued pursuant to this Agreement or any Rights Certificate
or as to whether any shares of Common Stock or Preferred Stock
will, when so issued, be validly authorized and issued, fully
paid and nonassessable.
(f) The Company agrees that it will perform,
execute, acknowledge and deliver or cause to be performed,
executed, acknowledged and delivered all such further and other
acts, instruments and assurances as may reasonably be required
by the Rights Agent for the carrying out or performing by the
Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and
directed to accept instructions with respect to the performance
of its duties hereunder from the Chairman of the Board, the
President, any Vice President, the Secretary, any Assistant
Secretary, the Treasurer or any Assistant Treasurer of the
Company, and to apply to such officers for advice or
instructions in connection with its duties, and it shall not be
liable for any action taken or suffered to be taken by it in
good faith in accordance with instructions of any such officer.
(h) The Rights Agent and any stockholder,
director, officer or employee of the Rights Agent may buy, sell
or deal in any of the Rights or other securities of the Company
or become pecuniarily interested in any transaction in which the
Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as though it were
not Rights Agent under this Agreement. Nothing herein shall
preclude the Rights Agent from acting in any other capacity for
the Company or for any other legal entity.
(i) The Rights Agent may execute and exercise
any of the rights or powers hereby vested in it or perform any
duty hereunder either itself or by or through its attorneys or
agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of any
such attorneys or agents or for any loss to the Company
resulting from any such act, default, neglect or misconduct;
provided, however, reasonable care was exercised in the
selection and continued employment thereof.
(j) No provision of this Agreement shall require
the Rights Agent to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its
duties hereunder or in the exercise of its rights if there shall
be reasonable grounds for believing that repayment of such funds
or adequate indemnification against such risk or liability is
not reasonably assured to it.
(k) If, with respect to any Right Certificate
surrendered to the Rights Agent for exercise or transfer, the
certificate attached to the form of assignment or form of
election to purchase, as the case may be, has either not been
completed or indicates an affirmative response to clause l
and/or 2 thereof, the Rights Agent shall not take any further
action with respect to such requested exercise of transfer
without first consulting with the Company.
Section 21. Change of Rights Agent. The Rights Agent
or any successor Rights Agent may resign and be discharged from
its duties under this Agreement upon thirty (30) days' notice in
writing mailed to the Company, and to each transfer agent of the
Common Stock and Preferred Stock, by registered or certified
mail, and to the holders of the Rights Certificates by
first-class mail. The Company may remove the Rights Agent or
any successor Rights Agent upon thirty (30) days' notice in
writing, mailed to the Rights Agent or successor Rights Agent,
as the case may be, and to each transfer agent of the Common
Stock and Preferred Stock, by registered or certified mail, and
to the holders of the Rights Certificates by first-class mail.
If the Rights Agent shall resign or be removed or shall
otherwise become incapable of acting, the Company shall appoint
a successor to the Rights Agent. If the Company shall fail to
make such appointment within a period of thirty (30) days after
giving notice of such removal or after it has been notified in
writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the holder of a
Rights Certificate (who shall, with such notice, submit his
Rights Certificate for inspection by the Company), then any
registered holder of any Rights Certificate may apply to any
court of competent jurisdiction for the appointment of a new
Rights Agent. Any successor Rights Agent, whether appointed by
the Company or by such a court, shall be a corporation organized
and doing business under the laws of the United States or of the
State of New York (or of any other state of the United States so
long as such corporation is authorized to do business as a
banking institution in the State of New York), in good standing,
having a principal office in the State of New York, which is
authorized under such laws to exercise corporate trust powers
and is subject to supervision or examination by federal or state
authority and which has at the time of its appointment as Rights
Agent a combined capital and surplus of at least $100,000,000.
After appointment, the successor Rights Agent
shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Rights
Agent without further act or deed; but the predecessor Rights
Agent shall deliver and transfer to the successor Rights Agent
any property at the time held by it hereunder, and execute and
deliver any further assurance, conveyance, act or deed necessary
for the purpose. Not later than the effective date of any such
appointment, the Company shall file notice thereof in writing
with the predecessor Rights Agent and each transfer agent of the
Common Stock and the Preferred Stock, and mail a notice thereof
in writing to the registered holders of the Rights Certificates.
Failure to give any notice provided for in this Section 21,
however, or any defect therein, shall not affect the legality or
validity of the resignation or removal of the Rights Agent or
the appointment of the successor Rights Agent, as the case may
be.
Section 22. Issuance of New Rights Certificates.
Notwithstanding any of the provisions of this Agreement or of
the Rights to the contrary, the Company may, at its option,
issue new Rights Certificates evidencing Rights in such form as
may be approved by its Board of Directors to reflect any
adjustment or change in the Purchase Price and the number or
kind or class of shares or other securities or property
purchasable under the Rights Certificates made in accordance
with the provisions of this Agreement. In addition, in
connection with the issuance or sale of shares of Common Stock
following the Distribution Date and prior to the redemption or
expiration of the Rights, the Company (a) shall,
with respect to shares of Common Stock so issued or sold
pursuant to the exercise of stock options or under any employee
plan or arrangement, granted or awarded as of the Distribution
Date, or upon the exercise, conversion or exchange of securities
issued by the Company prior to the Distribution Date, and (b)
may, in any other case, if deemed necessary or appropriate by
the Board of Directors of the Company, issue Rights Certificates
representing the appropriate number of Rights in connection with
such issuance or sale; provided, however, that (i) no such
Rights Certificate shall be issued if, and to the extent that,
the Company shall be advised by counsel that such issuance would
create a significant risk of material adverse tax consequences
to the Company or the Person to whom such Rights Certificate
would be issued, and (ii) to the extent that any adjustments in
the Company's securities have been made as a result of the
issuance of Rights Certificates (including, without limitation,
adjustments to conversion ratios or other adjustments resulting
from the operation of anti-dilution provisions in convertible
securities, stock options or similar securities), the number of
Rights, or fractions thereof, issuable shall equal, and not
exceed, the number necessary to enable the holder to receive,
upon such conversion, exchange or exercise of such security and
after exercise of such Rights, the number of shares of Common
Stock such holder would have received if it had converted,
exchanged or exercised such security immediately prior
to the Distribution Date and had subsequently exercised the
Rights issuable in respect of such shares.
Section 23. Redemption and Termination. (a) The
Board of Directors of the Company may, at its option, at any
time prior to the earlier of (i) the close of business on the
tenth day following the Stock Acquisition Date (or, if the Stock
Acquisition Date shall have occurred prior to the Record Date,
the close of business on the tenth day following the Record
Date), or (ii) the Final Expiration Date, redeem all but not
less than all the then outstanding Rights at a redemption price
of $.01 per Right, as such amount may be appropriately adjusted
to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such redemption
price being hereinafter referred to as the "Redemption Price");
provided, however, if the Board of Directors of the Company
authorizes redemption of the Rights in either of the
circumstances set forth in clauses (x) and (y) below, then there
must be Continuing Directors then in office and such
authorization shall require the concurrence of a majority of
such Continuing Directors: (x) such authorization occurs on or
after the time a Person becomes an Acquiring Person, or (y) such
authorization occurs on or after the date of a change (resulting
from a proxy or consent solicitation) in a majority of the
directors in office at the commencement of such solicitation if
any Person who is a participant in such solicitation has stated
(or, if upon the commencement of such solicitation, a majority
of the Board of Directors of the Company has determined in good
faith) that such Person (or any of its Affiliates or Associates)
intends to take, or may consider taking, any action which would
result in such Person becoming an Acquiring Person or which
would cause the occurrence of a Triggering Event unless,
concurrent with such solicitation, such Person (or one or more
of its Affiliates or Associates) is making a cash tender offer
pursuant to a Schedule 14D-1 (or any successor form) filed with
the Securities and Exchange Commission for all outstanding
shares of Common Stock not beneficially owned by such
Person (or by its Affiliates or Associates). Notwithstanding
anything contained in this Agreement to the contrary, the Rights
shall not be exercisable after the first occurrence of a Section
11(a)(ii) Event until such time as the Company's right of
redemption hereunder has expired. The Company may, at its
option, pay the Redemption Price in cash, shares of Common Stock
(based on the "current market price", as defined in Section
11(d)(i) hereof, of the Common Stock at the time of redemption)
or any other form of consideration deemed appropriate by the
Board of Directors.
(b) Immediately upon the action of the Board of
Directors of the Company ordering the redemption of the Rights,
evidence of which shall have been filed with the Rights Agent
and without any further action and without any notice, the right
to exercise the Rights will terminate and the only right
thereafter of the holders of Rights shall be to receive the
Redemption Price for each Right so held. Promptly after the
action of the Board of Directors ordering the redemption of the
Rights, the Company shall give notice of such redemption to the
Rights Agent and the holders of the then outstanding Rights by
mailing such notice to all such holders at each holder's last
address as it appears upon the registry books of the Rights
Agent or, prior to the Distribution Date, on the registry books
of the Transfer Agent for the Common Stock. Any notice which is
mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. Each such notice
of redemption will state the method by which the payment of the
Redemption Price will be made.
Section 24. Notice of Certain Events. (a) In case
the Company shall propose, at any time after the Distribution
Date, (i) to pay any dividend payable in stock of any class to
the holders of Preferred Stock or to make any other distribution
to the holders of Preferred Stock (other than a regular
quarterly cash dividend out of earnings or retained earnings of
the Company), or (ii) to offer to the holders of Preferred Stock
rights or warrants to subscribe for or to purchase any
additional shares of Preferred Stock or shares of stock of any
class or any other securities, rights or options, or (iii) to
effect any reclassification of its Preferred Stock (other than a
reclassification involving only the subdivision of outstanding
shares of Preferred Stock), or (iv) to effect any
consolidation or merger into or with any other Person (other
than a Subsidiary of the Company in a transaction which complies
with Section 11(o) hereof), or to effect any sale or other
transfer (or to permit one or more of its Subsidiaries to effect
any sale or other transfer), in one transaction or a series of
related transactions, of more than 50% of the assets, cash flow
or earning power of the Company and its Subsidiaries (taken as a
whole) to any other Person or Persons (other than the Company
and/or any of its Subsidiaries in one or more transactions each
of which complies with Section 11(o) hereof), or (v) to effect
the liquidation, dissolution or winding up of the Company, then,
in each such case, the Company shall give to each holder of a
Rights Certificate, to the extent feasible and in accordance
with Section 25 hereof, a notice of such proposed action, which
shall specify the record date for the purposes of such stock
dividend, distribution of rights or warrants, or the date on
which such reclassification, consolidation, merger, sale,
transfer, liquidation, dissolution, or winding up is to take
place and the date of participation therein by the holders of
the shares of Preferred Stock, if any such date is to be fixed,
and such notice shall be so given in the case of any action
covered by clause (i) or (ii) above at least twenty (20)
days prior to the record date for determining holders of the
shares of Preferred Stock for purposes of such action, and in
the case of any such other action, at least twenty (20) days
prior to the date of the taking of such proposed action or the
date of participation therein by the holders of the shares of
Preferred Stock whichever shall be the earlier.
(b) In case the event set forth in Section
11(a)(ii) hereof shall occur, then, in such case, (i) the
Company shall as soon as practicable thereafter give to each
holder of a Rights Certificate, to the extent feasible and in
accordance with Section 25 hereof, a notice of the occurrence of
such event, which shall specify the event and the consequences
of the event to holders of Rights under Section 11(a)(ii)
hereof, and (ii) all references in the preceding paragraph to
Preferred Stock shall be deemed thereafter to refer to Common
Stock and/or, if appropriate, other securities.
Section 25. Notices. Notices or demands authorized
by this Agreement to be given or made by the Rights Agent or by
the holder of any Rights Certificate to or on the Company shall
be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed (until another address is filed in
writing with the Rights Agent) as follows:
Mark IV Industries, Inc.
501 John James Audubon Parkway
P.O. Box 810
Amherst, New York 14226-0810
Attention: Chairman
Subject to the provisions of Section 21, any notice or demand
authorized by this Agreement to be given or made by the Company
or by the holder of any Rights Certificate to or on the Rights
Agent shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is filed
in writing with the Company) as follows:
American Stock Transfer & Trust Company
40 Wall Street, 46th Floor
New York, New York 10005
Attention: Corporate Trust 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
Rights Certificate (or, if prior to the Distribution Date, to
the holder of certificates representing shares of Common Stock)
shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed to such holder at the address of such
holder as shown on the registry books of the Company.
Section 26. Supplements and Amendments. Prior to the
Distribution Date and subject to the penultimate sentence of
this Section 26, the Company and the Rights Agent shall, if the
Company so directs, supplement or amend any provision of this
Agreement without the approval of any holders of certificates
representing shares of Common Stock. From and after the
Distribution Date and subject to the penultimate sentence of
this Section 26, the Company and the Rights Agent shall, if the
Company so directs, supplement or amend this Agreement without
the approval of any holders of Rights Certificates in order (i)
to cure any ambiguity, (ii) to correct or supplement any
provision contained herein which may be defective or
inconsistent with any other provisions herein, (iii)
to shorten or lengthen any time period hereunder (which
lengthening or shortening, following the first occurrence of an
event set forth in clauses (x) and (y) of the first proviso to
Section 23(a) hereof, shall be effective only if there are
Continuing Directors and shall require the concurrence of a
majority of such Continuing Directors), or (iv) to change or
supplement the provisions hereunder in any manner which the
Company may deem necessary or desirable and which shall not
adversely affect the interests of the holders of Rights
Certificates (other than an Acquiring Person or
an Affiliate or Associate of such Person); provided, this
Agreement may not be supplemented or amended to lengthen,
pursuant to clause (iii) of this sentence, (A) a time period
relating to when the Rights may be redeemed at such time as the
Rights are not then redeemable, or (B) any other time period
unless such lengthening is for the purpose of protecting,
enhancing or clarifying the rights of, and/or the benefits to,
the holders of Rights. Upon the delivery of a certificate from
an appropriate officer of the Company which states that the
proposed supplement or amendment is in compliance with the terms
of this Section 26, the Rights Agent shall execute such
supplement or amendment. Notwithstanding anything contained in
this Agreement to the contrary, no supplement or amendment shall
be made which changes the Redemption Price, the Final Expiration
Date, the Purchase Price or the number of one one-hundredths of
a share of Preferred Stock for which a Right is exercisable.
Prior to the Distribution Date, the interests of the
holders of Rights shall be deemed coincident with the interests
of the holders of Common Stock.
Section 27. Successors. All the covenants and
provisions of this Agreement by or for the benefit of the
Company or the Rights Agent shall bind and inure to the benefit
of their respective successors and assigns hereunder.
Section 28. Determinations and Actions by the Board
of Directors, etc. For all purposes of this Agreement, any
calculation of the number of shares of Common Stock outstanding
at any particular time, including for purposes of determining
the particular percentage of such outstanding shares of Common
Stock of which any Person is the Beneficial Owner, shall be made
in accordance with the last sentence of Rule 13d-3(d)(l)(i) of
the General Rules and Regulations under the Exchange Act. The
Board of Directors of the Company (with, where specifically
provided for herein, the concurrence of the Continuing
Directors) shall have the exclusive power and authority to
administer this Agreement and to exercise all rights and powers
specifically granted to the Board (with, where specifically
provided for herein, the concurrence of the Continuing
Directors) or to the Company, or as may be necessary
or advisable in the administration of this Agreement, including,
without limitation, the right and power to (i) interpret the
provisions of this Agreement, and (ii) make all determinations
deemed necessary or advisable for the administration of this
Agreement (including a determination to redeem or not redeem the
Rights or to amend the Agreement). All such actions,
calculations, interpretations and determinations (including, for
purposes of clause (y) below, all omissions with respect to the
foregoing) which are done or made by the Board (with, where
specifically provided for herein, the concurrence of the
Continuing Directors) in good faith, shall (x) be final,
conclusive and binding on the Company, the Rights Agent, the
holders of the Rights and all other parties, and (y) not subject
the Board or the Continuing Directors to any liability to the
holders of the Rights.
Section 29. Benefits of this Agreement. Nothing in
this Agreement shall be construed to give to any Person other
than the Company, the Rights Agent and the registered holders of
the Rights Certificates (and, prior to the Distribution Date,
registered holders of the Common Stock) any legal or equitable
right, remedy or claim under this Agreement; but this Agreement
shall be for the sole and exclusive benefit of the Company, the
Rights Agent and the registered holders of the Rights
Certificates (and, prior to the Distribution Date, registered
holders of the Common Stock).
Section 30. Severability. If any term, provision,
covenant or restriction of this Agreement is held by a court of
competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force
and effect and shall in no way be affected, impaired or
invalidated; provided, however, that notwithstanding anything in
this Agreement to the contrary, if any such term, provision,
covenant or restriction is held by such court or authority to be
invalid, void or unenforceable and the Board of Directors of the
Company determines in its good faith judgment that severing the
invalid language from this Agreement would adversely affect the
purpose or effect of this Agreement, the right of redemption set
forth in Section 23 hereof shall be reinstated and shall not
expire until the close of business on the tenth day following
the date of such determination by the Board of Directors.
Section 31. Governing Law. This Agreement,
each Right and each Rights Certificate issued hereunder shall be
deemed to be a contract made under the laws of the State of
Delaware and for all purposes shall be governed by and construed
in accordance with the laws of such State applicable to
contracts made and to be performed entirely within such State.
Section 32. Counterparts. This Agreement may be
executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute but one and
the same instrument.
Section 33. Descriptive Headings. Descriptive
headings of the several Sections of this Agreement are inserted
for convenience only and shall not control or affect the meaning
or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and their respective
corporate seals to be hereunto affixed and attested, all as of
the day and year first above written.
Attest: MARK IV INDUSTRIES, INC.
By ______________________ By _______________________
Name: Name:
Title: Title:
Attest: AMERICAN STOCK TRANSFER &
TRUST COMPANY
By ______________________ By _______________________
Name: Name:
Title: Title:
<PAGE>
Exhibit A
FORM OF
CERTIFICATE OF DESIGNATION, PREFERENCES AND
RIGHTS OF SERIES A JUNIOR PARTICIPATING
PREFERRED STOCK
of
MARK IV INDUSTRIES, INC.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
We, Clement R. Arrison, President, and Gerald S.
Lippes, Secretary, of Mark IV Industries, Inc., a corporation
organized and existing under the laws of the State of Delaware
(herein referred to as the "Corporation"), in accordance with
the provisions of Section 103 of the General Corporation Law of
the State of Delaware, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the
Board of Directors of the Corporation by the Certificate of
Incorporation of the Corporation (the "Certificate of
Incorporation"), the Board of Directors of the Corporation on
May 17, 1995, adopted the following resolution creating a series
of Preferred Stock designated as Series A Junior Participating
Preferred Stock:
RESOLVED that pursuant to the authority vested in the
Board of Directors of the Corporation in accordance with the
provisions of the Certificate of Incorporation of the
Corporation, a series of Preferred Stock of the Corporation is
hereby created and that the designation and number of shares
thereof and the voting powers, preferences and relative,
participating, optional and other special rights of the shares
of such series, and the qualifications, limitations and
restrictions thereof are as follows:
Section 1. Designation, Number of Shares. The shares
of such series shall be designated as "Series A Junior
Participating Preferred Stock" ("Series A Junior Participating
Preferred Stock"). The number of shares constituting the Series
A Junior Participating Preferred Stock shall be 1,000,000.
Section 2. Dividends or Distributions. (a) Subject
to the prior and superior rights of the holders of shares of any
other class of capital stock not by its terms ranking on a
parity with, or junior to, the Series A Junior Participating
Preferred Stock with respect to dividends, the holders of Series
A Junior Participating Preferred Stock shall be entitled to
receive, when and as declared by the Board of Directors, out of
the assets of the Corporation legally available therefor,
quarterly dividends payable in cash in an amount per whole share
of Series A Junior Participating Preferred Stock equal to the
greater of (1) 10% of the Purchase Price (the "Purchase Price"),
as adjusted, per unit of one one-hundredth of a share of Series
A Junior Participating Preferred Stock set forth in the Rights
Agreement (the "Rights Agreement") between the Corporation and
American Stock Transfer & Trust Company, as Rights Agent, dated
as of May 17, 1995 (so that if the Purchase Price, as adjusted,
were $80.00, the quarterly dividend amount per whole share of
Series A Junior Participating Preferred Stock would be $8.00),
and (2) dividends payable in cash on the payment date for each
cash dividend (if any) declared on the Common Stock in an amount
per whole share (rounded to the nearest cent) equal to the
Formula Number then in effect times the cash
dividends then to be paid on each outstanding share of Common
Stock, payable on the date declared by the Board of Directors
for the payment of quarterly dividends on the outstanding shares
of Common Stock, par value $.01 per share, of the Corporation
(the "Common Stock") but in no event later than the fifteenth
day of March, June, September and December in each year (each
such date being referred to herein as a "Quarterly Dividend
Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or a fraction
of a share of Series A Junior Participating Preferred Stock,
since the immediately preceding Quarterly Dividend Payment Date
or, with respect to the first Quarterly Dividend Payment Date,
since the first issuance of any share or fraction of a share of
Series A Junior Participating Preferred Stock. In addition, if
the Company shall pay any dividend or make any distribution on
the Common Stock payable in assets, securities or other forms of
noncash consideration (other than dividends or distributions
solely in shares of Common Stock), then, in each such case, the
Company shall simultaneously pay or make on each outstanding
share of Series A Junior Participating Preferred Stock a
dividend or distribution in like kind, of the
Formula Number then in effect times such dividend or
distribution on each share of Common Stock. As used herein, the
"Formula Number" shall be 100; provided however, that if at any
time after May 17, 1995, the Corporation shall (i) declare or
pay any dividend on the Common Stock payable in shares of Common
Stock or make any distribution on the Common Stock in shares of
Common Stock, (ii) subdivide (by a stock split or otherwise) the
outstanding shares of Common Stock into a larger number of
shares of Common Stock or (iii) combine (by a reverse stock
split or otherwise) the outstanding shares of Common Stock into
a smaller number of shares of Common Stock, then in each such
event the Formula Number shall be adjusted to a number
determined by multiplying the Formula Number in effect
immediately prior to such event by a fraction, the
numerator of which is the number of shares of Common Stock that
are outstanding immediately after such event and the denominator
of which is the number of shares that are outstanding
immediately prior to such event (and rounding the result to the
nearest whole number); and provided further that if at any time
after May 17, 1995, the Corporation shall issue any shares of
its capital stock in a reclassification or change of the
outstanding shares of Common Stock (including any such
reclassification or change in connection with a merger in which
the Corporation is the surviving corporation), then in such
event the Formula Number shall be appropriately adjusted to
reflect such reclassification or change.
(b) The Board of Directors shall declare a dividend
or distribution on the Series A Junior Participating Preferred
Stock as provided in paragraph 2(a) immediately prior to or at
the same time it declares a dividend or distribution on the
Common Stock (other than a dividend or distribution solely in
shares of Common Stock). The Board of Directors may fix a
record date for the determination of holders of Series A Junior
Participating Preferred Stock entitled to receive a dividend or
distribution declared thereon, which record date shall be the
same as the record date for any corresponding dividend or
distribution on the Common Stock.
(c) Dividends shall begin to accrue and be cumulative
on outstanding shares of Series A Junior Participating Preferred
Stock from and after the Quarterly Dividend Payment Date next
preceding the date of original issue of such Series A Junior
Participating Preferred Stock; provided, however, that dividends
on such shares which are originally issued after the record date
for the determination of holders of Series A Junior
Participating Preferred Stock entitled to receive a quarterly
dividend and on or prior to the next succeeding Quarterly
Dividend Payment Date shall begin to accrue and be cumulative
from and after such Quarterly Dividend Payment Date.
Notwithstanding the foregoing, dividends on shares
of Series A Junior Participating Preferred Stock which are
originally issued prior to the record date for the first
Quarterly Dividend Payment, shall be calculated as if cumulative
from and after the date (if any) declared by the Board of
Directors for the payment of the quarterly dividend on the
outstanding shares of Common Stock but in no event later than
the fifteenth day of March, June, September and December, as the
case may be, next preceding the date of original issuance of
such shares. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the Series A Junior Participating
Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall
be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding.
(d) So long as any shares of Series A Junior
Participating Preferred Stock are outstanding, no dividends or
other distributions shall be declared, paid or distributed, or
set aside for payment or distribution, on the Common Stock
unless, in each case, the dividend required by this Section 2 to
be declared on the shares of Series A Junior Participating
Preferred Stock shall have been declared, paid or distributed.
(e) The holders of shares of Series A Junior
Participating Preferred Stock shall not be entitled to receive
any dividends or other distributions except as provided herein.
Section 3. Voting Rights. The holders of shares of
Series A Junior Participating Preferred Stock shall have the
following voting rights:
(a) Each holder of shares of Series A Junior
Participating Preferred Stock shall be entitled to a number of
votes equal to the Formula Number then in effect for each share
of Series A Junior Participating Preferred Stock held of record
on all matters on which holders of the Common Stock or
shareholders generally are entitled to vote.
(b) Except as otherwise provided herein or by
applicable law, the holders of shares of Series A Junior
Participating Preferred Stock and the holders of shares of
Common Stock and any other class or series of voting stock shall
vote together as one class for the election of directors of the
Corporation and on all other matters submitted to a vote of
shareholders of the Corporation.
(c) Except as provided herein, in Section 10 hereof
or by applicable law, holders of shares of Series A Junior
Participating Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the
extent they are entitled to vote with holders of shares of
Common Stock and any other class or series of voting stock as
set forth herein) for authorizing or taking any corporate
action.
Section 4. Certain Restrictions. (a) Whenever
quarterly dividends or other dividends or distributions payable
on the Series A Junior Participating Preferred Stock as provided
in Section 2 hereof are in arrears, thereafter and until all
accrued and unpaid dividends and distributions, whether or not
declared, on shares of Series A Junior Participating Preferred
Stock outstanding shall have been paid in full, the Corporation
shall not:
(1) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise
acquire for consideration any shares ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Junior
Participating Preferred Stock;
(2) declare or pay dividends on or make any other
distributions on any shares ranking on a parity (either
as to dividends or upon liquidation, dissolution or
winding up) with the Series A Junior Participating
Preferred Stock, except dividends paid ratably on the
Series A Junior Participating Preferred Stock and all
such parity shares 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;
(3) redeem or purchase or otherwise acquire for
consideration any shares ranking on a parity (either as
to dividends or upon liquidation, dissolution or
winding up) with the Series A Junior Participating
Preferred Stock, provided that the Corporation may at
any time redeem, purchase or otherwise acquire any of
such parity shares in exchange for any shares of the
Corporation ranking junior (either as to dividends or
upon dissolution, liquidation or winding up) to the
Series A Junior Participating Preferred Stock; or
(4) purchase or otherwise acquire for
consideration any Series A Junior Participating
Preferred Stock, or any shares ranking on a parity with
the Series A Junior Participating Preferred Stock,
except in accordance with a purchase offer made in
writing or by publication (as determined by the Board
of Directors) to all holders of such shares upon such
terms as the Board of Directors, after consideration of
the respective annual dividend rates and other relative
rights and preferences of the respective series and
classes, shall determine in good faith will result in
fair and equitable treatment among the respective
series or classes.
(b) The Corporation shall not permit any subsidiary of
the Corporation to purchase or otherwise acquire for
consideration any shares of the Corporation unless the
Corporation could, under paragraph (a) of this Section 4,
purchase or otherwise acquire such shares at such time and in
such manner.
Section 5. Liquidation Rights. Upon the liquidation,
dissolution or winding up of the Corporation, whether voluntary
or involuntary, no distribution shall be made (a) to the holders
of shares ranking junior (either as to dividends or upon
liquidation, dissolution, or winding up) to the Series A Junior
Participating Preferred Stock unless, prior thereto, the holders
of shares of Series A Junior Participating Preferred Stock shall
have received an amount equal to the accrued and unpaid
dividends and distributions thereon, whether or not declared, to
the date of such payment, plus an amount equal to the greater of
(1) 50% of the Purchase Price per unit of one one-hundredth of a
share of Series A Junior Participating Preferred Stock (so that
if the Purchase Price is $80.00, the liquidation amount would be
$40.00 per whole share), or (2) an aggregate amount per share
equal to the Formula Number then in effect times the aggregate
amount to be distributed per share to holders of shares of
Common Stock, or (b) to the holders of shares ranking on a
parity (either as to dividends or upon liquidation, dissolution
or winding up) with the Series A Junior Participating Preferred
Stock, except distributions made ratably on the Series A Junior
Participating Preferred Stock and all other 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.
Section 6. Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger, combin-
ation or other transaction in which the shares of Common Stock
are exchanged for or changed into other stock or securities,
cash or any other property, then in any such case the then
outstanding shares of Series A Junior Participating Preferred
Stock shall at the same time be similarly exchanged or changed
in an amount per share equal to the Formula Number then in
effect times the aggregate amount of stock, securities, cash or
any other property (payable in kind), as the case may be, into
which or for which each share of Common Stock is exchanged or
changed.
Section 7. No Redemption; No Sinking Fund. (a) The
shares of Series A Junior Participating Preferred Stock shall
not be subject to redemption by the Corporation or at the option
of any holder of Series A Junior Participating Preferred Stock;
provided, however, that the Corporation may purchase or
otherwise acquire outstanding shares of Series A Junior
Participating Preferred Stock in the open market or by offer to
any holder or holders of shares of Series A Junior Participating
Preferred Stock.
(b) The Series A Junior Participating Preferred Stock
shall not be subject to or entitled to the operation of a
retirement or sinking fund.
Section 8. Fractional Shares. The Series A Junior
Participating Preferred Stock shall be issuable upon exercise of
the Rights issued pursuant to the Rights Agreement in whole
shares or in any fraction of a share that is one-hundredth
(1/100th) of a share or any integral multiple of such fraction.
At the election of the Corporation prior to the first issuance
of a share or a fraction of a share of Series A Junior Partici-
pating Preferred Stock, either (1) certificates may be issued to
evidence any such authorized fraction of a share of Series A
Junior Participating Preferred Stock, or (2) any such authorized
fraction of a share of Series A Junior Participating Preferred
Stock may be evidenced by depositary receipts pursuant to an
appropriate agreement between the Corporation and a depositary
selected by the Corporation 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 shares of Series A Junior
Participating Preferred Stock.
Section 9. Reacquired Shares. Any shares of Series A
Junior Participating Preferred Stock purchased or otherwise
acquired by the Corporation in any manner whatsoever shall be
retired and cancelled promptly after the acquisition thereof.
All such shares shall upon their cancellation become authorized
but unissued shares of Preferred Stock, without designation as
to series until such shares are once more designated as part of
a particular series by the Board of Directors pursuant to the
provisions of the Certificate of Incorporation.
Section 10. Amendment. None of the relative rights,
preferences and limitations of the Series A Junior Participating
Preferred Stock as provided herein or elsewhere in the
Certificate of Incorporation shall be amended in any manner
which would alter or change the relative rights, preferences and
limitations of the holders of shares of Series A Junior
Participating Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of at least 66-2/3%
of the outstanding shares of Series A Junior Participating
Preferred Stock, voting as though such series was a separate
class.
IN WITNESS WHEREOF, we have executed and subscribed
this Certificate and do affirm the foregoing as true under the
penalties of perjury this ____ day of _______, 1995.
Clement R. Arrison
President
Attest:
Gerald S. Lippes
Secretary
<PAGE>
Exhibit B
[Form of Rights Certificate]
Certificate No. R- _________ Rights
NOT EXERCISABLE AFTER JUNE 2, 2005
OR EARLIER IF REDEEMED BY THE
COMPANY. THE RIGHTS ARE SUBJECT TO
REDEMPTION, AT THE OPTION OF THE
COMPANY, AT $.01 PER RIGHT ON THE
TERMS SET FORTH IN THE RIGHTS
AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES, RIGHTS BENEFICIALLY
OWNED BY AN ACQUIRING PERSON OR AN
AFFILIATE OR ASSOCIATE THEREOF (AS
SUCH TERMS ARE DEFINED IN THE RIGHTS
AGREEMENT) AND ANY SUBSEQUENT HOLDER
OF SUCH RIGHTS MAY BECOME NULL AND
VOID. [THE RIGHTS REPRESENTED BY
THIS RIGHTS CERTIFICATE ARE OR WERE
BENEFICIALLY OWNED BY A PERSON WHO
WAS OR BECAME AN ACQUIRING PERSON OR
AN AFFILIATE OR ASSOCIATE OF AN
ACQUIRING PERSON (AS SUCH TERMS ARE
DEFINED IN THE RIGHTS AGREEMENT).
ACCORDINGLY, THIS RIGHTS CERTIFICATE
AND THE RIGHTS REPRESENTED HEREBY
MAY BECOME NULL AND VOID IN THE
CIRCUMSTANCES SPECIFIED IN SECTION
7(e) OF SUCH AGREEMENT].[FN]
[FN] The portion of the legend in brackets shall be inserted
only if applicable and shall replace the preceding sentence.
Rights Certificate
MARK IV INDUSTRIES, INC.
This certifies that , or
registered assigns, is the registered owner of the number of
Rights set forth above, each of which entitles the owner
thereof, subject to the terms, provisions and conditions of the
Rights Agreement, dated as of May 17, 1995 (the "Rights
Agreement"), between Mark IV Industries, Inc., a Delaware
corporation (the "Company"), and American Stock Transfer & Trust
Company (the "Rights Agent"), to purchase from the Company at
any time prior to 5:00 P.M. (New York City time) on June 2, 2005
at the office or offices of the Rights Agent designated for such
purpose, or its successors as Rights Agent, one one-hundredth of
a fully paid, non-assessable share of Series A Junior
Participating Preferred Stock (the "Preferred Stock") of the
Company, at a purchase price (the "Purchase Price") of $80.00
per unit of one one-hundredth of a share, upon presentation and
surrender of this Rights Certificate with the Form of Election
to Purchase and related Certificate duly executed. The number
of Rights evidenced by this Rights Certificate (and the number
of shares of Preferred Stock which may be purchased upon
exercise thereof) set forth above, and the Purchase Price per
share set forth above, are the number and Purchase Price as of
June 2, 1995, based on the Preferred Stock as constituted at
such date. The Company reserves the right to require prior to
the occurrence of a Triggering Event (as such term is defined in
the Rights Agreement) that a number of Rights be exercised so
that only whole shares of Preferred Stock will be issued.
Upon the occurrence of a Section 11(a)(ii) Event (as
such term is defined in the Rights Agreement), if the Rights
evidenced by this Rights Certificate are beneficially owned by
(i) an Acquiring Person or an Affiliate or Associate of any such
Person (as such terms are defined in the Rights Agreement), (ii)
a transferee of any such Acquiring Person, Associate or
Affiliate, or (iii) under certain circumstances specified in the
Rights Agreement, a transferee of a person who, after such
transfer, became an Acquiring Person or an Affiliate or
Associate of any such Person, such Rights shall become null and
void and no holder hereof shall have any right with respect to
such Rights from and after the occurrence of such Section
11(a)(ii) Event.
As provided in the Rights Agreement, the Purchase Price
and the number and kind of shares of Preferred Stock or other
securities which may be purchased upon the exercise of the
Rights evidenced by this Rights Certificate are subject to
modification and adjustment upon the happening of certain
events, including Triggering Events.
This Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Agreement
reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent, the Company and the holders of
the Rights Certificates, which limitations of rights include the
temporary suspension of the exercisability of such Rights under
the specific circumstances set forth in the Rights Agreement.
Copies of the Rights Agreement are on file at the office of the
Company and are also available upon written request to the
Company.
This Rights Certificate, with or without other Rights
Certificates, upon surrender at the shareholder services office
or offices of the Rights Agent designated for such purpose, may
be exchanged for another Rights Certificate or Rights
Certificates of like tenor and date evidencing rights entitling
the holder to purchase a like aggregate number of one one-
hundredths of a share of Preferred Stock as the Rights evidenced
by the Rights Certificate or Rights Certificates surrendered
shall have entitled such holder to purchase. If this Rights
Certificate shall be exercised in part, the holder shall be
entitled to receive upon surrender hereof another Rights
Certificate or Rights Certificates for the number of whole
Rights not exercised.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate may be redeemed by the
Company at its option at a redemption price of $.01 per Right at
any time prior to the earlier of the close of business on (a)
the tenth day following the Stock Acquisition Date (as such time
period may be extended pursuant to the Rights Agreement), and
(b) the Final Expiration Date. Under certain circumstances set
forth in the Rights Agreement, the decision to redeem shall
require the concurrence of a majority of the Continuing
Directors (as such term is defined in the Rights Agreement).
No fractional shares of Preferred Stock will be issued
upon the exercise of any right or rights evidenced hereby (other
than fractions which are integral multiples of one one-hundredth
of a share of Preferred Stock, which may, at the election of the
Company, be evidenced by depositary receipts), but in lieu
thereof a cash payment will be made, as provided in the Rights
Agreement.
No holder of this Rights Certificate shall be entitled
to vote or receive dividends or be deemed for any purpose the
holder of shares of Preferred Stock or of any other securities
of the Company which may at any time be issuable on the exercise
hereof, nor shall anything contained in the Rights Agreement or
herein be construed to confer upon the holder hereof, as such,
any of the rights of a stockholder of the Company or any right
to vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or, to receive notice
of meetings or other actions affecting stockholders (except as
provided in the Rights Agreement), or to receive dividends or
subscription rights, or otherwise, until the Right or Rights
evidenced by this Rights Certificate shall have been exercised
as provided in the Rights Agreement.
This Rights Certificate shall not be valid or
obligatory for any purpose until it shall have been
countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers
of the Company and its corporate seal.
Dated as of ___________ __, ____
ATTEST: MARK IV INDUSTRIES, INC.
By:
Secretary Title:
Countersigned:
By:
Authorized Signature
<PAGE>
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED
______________________________________________
hereby sells, assigns and transfers unto
________________________
________________________________________________________________
(Please print name and address of transferee)
________________________________________________________________
this Rights Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and
appoint _________________ Attorney, to transfer the within
Rights Certificate on the books of the within-named Company,
with full power of substitution.
Dated: _______________, 19__
______________________________
Signature
Signature Guaranteed:
<PAGE>
Certificate
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) this Rights Certificate [ ] is [ ] is not being
sold, assigned and transferred by or on behalf of a Person who
is or was an Acquiring Person or an Affiliate or Associate of
such Person (as such terms are defined pursuant to the Rights
Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights
evidenced by this Rights Certificate from any Person who is, was
or subsequently became an Acquiring Person or an Affiliate or
Associate of such Person.
Dated: ____________ __, 19__ ______________________________
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment and Certi-
ficate must correspond to the name as written upon the face of
this Rights Certificate in every particular, without alteration
or enlargement or any change whatsoever.
<PAGE>
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise Rights represented by the
Rights Certificate.)
To: MARK IV INDUSTRIES, INC.
The undersigned hereby irrevocably elects to exercise
__________ Rights represented by this Rights Certificate to
purchase the shares of Preferred Stock issuable upon the
exercise of the Rights (or such other securities of the Company
or of any other person which may be issuable upon the exercise
of the Rights) and requests that certificates for such shares be
issued in the name of and delivered to:
Please insert social security
or other identifying number
_______________________________________________________________
(Please print name and address)
_______________________________________________________________
If such number of Rights shall not be all the Rights
evidenced by this Rights Certificate, a new Rights Certificate
for the balance of such Rights shall be registered in the name
of and delivered to:
Please insert social security
or other identifying number
________________________________________________________________
(Please print name and address)
<PAGE>
________________________________________________________________
________________________________________________________________
Dated: _______________, 19__
______________________________
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) the Rights evidenced by this Rights Certificate
[ ] are [ ] are not being exercised by or on behalf of a
Person who is or was an Acquiring Person or an Affiliate or
Associate of such Person (as such terms are defined pursuant to
the Rights Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights
evidenced by this Rights Certificate from any Person who is, was
or became an Acquiring Person or an Affiliate or Associate of
such Person.
Dated: ___________, 19__ ______________________________
Signature
Signature Guaranteed:
<PAGE>
NOTICE
The signature to the foregoing Election to Purchase and
Certificate must correspond to the name as written upon the face
of this Rights Certificate in every particular, without
alteration or enlargement or any change whatsoever.
<PAGE>
Exhibit C
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED STOCK
On May 17, 1995, the Board of Directors of Mark IV
Industries, Inc. (the "Company") declared a dividend of one
Right for each outstanding share of the Company's Common Stock,
par value $.01 per share (the "Common Stock"), to stockholders
of record at the close of business on June 2, 1995. Each Right
entitles the registered holder to purchase from the Company a
unit consisting of one one-hundredth of a share of Series A
Junior Participating Preferred Stock, par value $.01 per share
(the "Preferred Stock"), at a Purchase Price of $80.00 per unit
of one one-hundredth of a share, subject to adjustment. The
description and terms of the Rights are set forth in a Rights
Agreement (the "Rights Agreement") between the Company and
American Stock Transfer & Trust Company, as Rights Agent.
Initially, the Rights will be attached to all Common
Stock certificates representing shares then outstanding, and no
separate Rights Certificates will be distributed. A
Distribution Date will occur and the Rights will separate from
the Common Stock upon the earliest of (i) ten days following a
public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") has acquired, or
obtained the right to acquire, beneficial ownership of 20% or
more of the shares of Common Stock then outstanding[FN] (the
"Stock Acquisition Date"), or (ii) ten business days following
the commencement of a tender offer or exchange offer that would
result in a person or group beneficially owning 20% or more of
such outstanding shares of Common Stock (unless such tender
offer or exchange offer is an offer for all outstanding shares
of Common Stock which a majority of the unaffiliated Directors
who are not officers of the Company determine to be fair to and
otherwise in the best interests of the Company and its
stockholders).
[FN]Under the Rights Agreement, for purposes of calculating
percentages of Common Stock outstanding, shares of Common Stock
outstanding shall include all shares of Common Stock deemed to
be beneficially owned by a person and its affiliates and
associates, even if not actually then outstanding.
Until the Distribution Date, (i) the Rights will be
evidenced by the Common Stock certificates and will be
transferred with and only with such Common Stock certificates,
(ii) new Common Stock certificates issued after June 2, 1995
will contain a notation incorporating the Rights Agreement by
reference, and (iii) the surrender for transfer of any
certificates for Common Stock outstanding will also constitute
the transfer of the Rights associated with the Common Stock
represented by such certificate.
The Rights are not exercisable until the Distribution
Date and will expire at the close of business on June 2, 2005,
unless earlier redeemed by the Company as described below.
As soon as practicable after the Distribution Date,
Rights Certificates will be mailed to holders of record of the
Common Stock as of the close of business on the Distribution
Date and, thereafter, the separate Rights Certificates alone
will represent the Rights. Except (i) with respect to certain
shares of Common Stock issued or sold pursuant to the exercise
of stock options or under any employee plan or arrangement, or
upon the exercise, conversion or exchange of certain securities
of the Company, or (ii) as otherwise determined by the Board of
Directors, only shares of Common Stock issued prior to the
Distribution Date will be issued with Rights.
In the event that a person becomes the beneficial owner
of 20% or more of the then outstanding shares of Common Stock
(except pursuant to an offer for all outstanding shares of
Common Stock which a majority of the Directors who are not
officers of the Company and who are not affiliates or associates
of such person determine to be fair to and otherwise in the best
interests of the Company and its stockholders) (a "Flip-in
Event"), each holder of a Right will thereafter have the right
to receive, upon payment of the Purchase Price, Common Stock
(or, in certain circumstances, cash, property or other
securities of the Company) having a value (based on a formula
set forth in the Rights Agreement) equal to two times the
Purchase Price of the Right. Notwithstanding any of the
foregoing, following the occurrence of the Flip-in Event, all
Rights that are, or (under certain circumstances specified in
the Rights Agreement) were, beneficially owned by an Acquiring
Person (or by certain related parties) will be null and void.
However, Rights are not exercisable following the occurrence of
the Flip-in Event until such time as the Rights are no longer
redeemable by the Company as set forth below.
For example, at a Purchase Price of $80.00 per Right,
each Right not owned by an Acquiring Person (or by certain
related parties) following a Flip-in Event would entitle its
holder to purchase $160.00 worth of Common Stock (or other
consideration, as noted above) determined pursuant to a formula
set forth in the Rights Agreement, for $80.00. Assuming that
the Common Stock had a per share value of $20.00 at such time
(as determined pursuant to such formula), the holder of each
valid Right would be entitled to purchase eight shares of Common
Stock for $80.00.
In the event that, at any time following the Stock
Acquisition Date, (i) the Company is acquired in a merger or
other business combination transaction in which the Company is
not the surviving corporation or in which it is the surviving
corporation but its Common Stock is changed or exchanged (other
than a merger meeting certain conditions which follows an offer
for all outstanding shares of Common Stock which a majority of
the unaffiliated Directors who are not officers of the Company
determine to be fair to and otherwise in the best interests of
the Company and its stockholders), or (ii) 50% or more of the
Company's assets, earning power or cash flow is sold or
transferred, each holder of a Right (except Rights which
previously have been voided as set forth above) shall thereafter
have the right to receive, upon payment of the Purchase Price,
common stock of the acquiring company having a value equal to
two times the exercise price of the Right. The events set forth
in this paragraph and the Flip-in Event described in the second
preceding paragraph are referred to as the "Triggering Events."
The Purchase Price payable, and the number of units of
one one-hundredths of a share of Preferred Stock or other
securities or property issuable, upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution (i)
in the event of a stock dividend on, or a subdivision,
combination or reclassification of, the Preferred Stock, (ii) if
holders of the Preferred Stock are granted certain rights or
warrants to subscribe for Preferred Stock or convertible
securities at less than the current market price of the
Preferred Stock, or (iii) upon the distribution to holders of
the Preferred Stock of evidences of indebtedness or assets
(excluding cash dividends not in excess of 200% of regular
quarterly cash dividends) or of subscription rights or warrants
(other than those referred to above).
With certain exceptions, no adjustment in the Purchase
Price will be required until cumulative adjustments amount to at
least 1% of the Purchase Price. No fractional shares of
Preferred Stock (other than fractions of one one-hundredth of a
share, or integral multiples thereof) will be issued and, in
lieu thereof, an adjustment in cash will be made based on the
market price of the Preferred Stock on the last trading date
prior to the date of exercise.
At any time until ten days following the Stock
Acquisition Date, the Company may redeem the Rights in whole,
but not in part, at a price of $.01 per Right (payable in cash,
Common Stock or other consideration deemed appropriate by the
Board of Directors). Under certain circumstances set forth in
the Rights Agreement, the decision to redeem shall require the
concurrence of a majority of the Continuing Directors (as
defined below) who are not officers of the Company. Immediately
upon the action of the Board of Directors ordering redemption of
the Rights, with, where required, the concurrence of such
Continuing Directors, the Rights will terminate and the only
right of the holders of Rights will be to receive the $.01
redemption price.
The term "Continuing Director" means any member of the
Board of Directors of the Company who was a member of the Board
prior to the date of the Rights Agreement, and any person who is
subsequently elected to the Board if such person is recommended
or approved by a majority of the Continuing Directors, but shall
not include an Acquiring Person or an affiliate or associate of
such Person, or any representative of any of the foregoing.
Until a Right is exercised, the holder thereof, as
such, will have no rights as a stockholder of the Company,
including, without limitation, the right to vote or to receive
dividends. While the distribution of the Rights will not be
taxable to stockholders or to the Company, stockholders may,
depending upon the circumstances, recognize taxable income in
the event that the Rights become exercisable for Common Stock
(or other consideration) of the Company or for common stock of
the acquiring company as set forth above, or are redeemed as
provided in the second preceding paragraph.
Other than certain provisions relating to the principal
economic terms of the Rights, any of the provisions of the
Rights Agreement may be amended by the Board of Directors of the
Company prior to the Distribution Date. After the Distribution
Date, the provisions of the Rights Agreement may be amended by
the Board (in certain circumstances, with the concurrence of the
Continuing Directors) in order to cure any ambiguity, to make
changes which do not adversely affect the interests of holders
of Rights (other than an Acquiring Person or an affiliate or
associate thereof), or to shorten or lengthen any time period
under the Rights Agreement; provided, however, that no amendment
to adjust the time period governing redemption shall be made at
such time as the Rights are not redeemable.
The Rights have certain anti-takeover effects.
Exercise of the Rights will cause substantial dilution to a
person or group that attempts to acquire the Company on terms
not approved by the Company's Board of Directors. The existence
of Rights, however, should not affect an offer at a fair price
and otherwise in the best interests of the Company and its
stockholders as determined by the Board of Directors. The
Rights should not interfere with any merger or other business
combination approved by the Board of Directors since the Board
of Directors may, at its option, at any time until ten days
following the Stock Acquisition Date redeem all but not less
than all of the then outstanding Rights at the $.01 redemption
price.
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. A copy of the Rights
Agreement is available free of charge from the Company. This
summary description of the Rights does not purport to be
complete and is qualified in its entirety by reference to the
Rights Agreement, which is incorporated herein by reference.
<PAGE>
MARK IV INDUSTRIES, INC.
P.O. BOX 810
501 John James Audubon Parkway
Amherst, NY 14226-0810
May 24, 1995
Dear Stockholder:
The Board of Directors of Mark IV Industries, Inc. has announced
the adoption of a Shareholders Rights Plan. The Plan provides
for a dividend of Rights to purchase shares of a new series of
Preferred Stock (or, in certain circumstances, Common Stock or
other consideration), exercisable upon the occurrence of certain
events.
We believe that the Plan protects your interests in the event
that the Company is confronted with coercive or unfair takeover
tactics. The Plan contains provisions to protect you in the
event of an unsolicited offer to acquire the Company. Although
we are not aware of any such potential offers, the Plan offers
protection from offers that do not treat all stockholders
equally, acquisitions in the open market of shares constituting
control without offering fair value to all stockholders and
other coercive or unfair takeover tactics that could impair the
Board's ability to represent your interests fully.
The Plan will not affect an offer at a fair price and otherwise
in the best interests of the Company and its stockholders as
determined by its Board of Directors. The Rights Plan will not
interfere with a merger or other business combination
transaction that the Board of Directors approves as fair and as
constituting a recognition of full value to the stockholders.
The Rights would become exercisable to purchase shares of
Preferred Stock (or, in certain circumstances, Common Stock)
only if (i) a person acquired 20% or more of the Company's
Common Stock, or (ii) a person commenced a tender or exchange
offer for 20% or more of the Company's Common Stock. In the
circumstance described in clause (i) above, holders of Rights
would be entitled to purchase, in lieu of Preferred Stock,
Common Stock of the Company at a 50% discount from market value.
Moreover, in the event that the Company were to enter into
certain merger or asset sale transactions, after the occurrence
of the circumstance described in clause (i), holders would be
entitled to exercise the Rights for common stock of the
acquiring entity. The acquiring person described in clause (i)
would not be entitled to exercise Rights.
The issuance of Rights does not in any way weaken the financial
strength of the Company or interfere with its business plans.
The issuance of the Rights has no dilutive effect, will not
affect reported earnings per share and will not change the way
in which you can currently trade shares of the Company's Common
Stock.
A summary of the Plan is enclosed. The Plan is complex, and we
urge you to read this summary carefully. Its premise, however,
is straightforward: to serve and protect the interests of the
Company's stockholders.
Sincerely,
Sal H. Alfiero
Chairman and Chief Executive Officer
<PAGE>
Exhibit 99
Contact: Sharlene Vogler
Director, Investor Relations
Mark IV Industries, Inc.
(716) 689-4972
FOR IMMEDIATE RELEASE
MARK IV ADOPTS SHAREHOLDERS RIGHTS PLAN
AMHERST, N.Y., May 17, 1995 -- Mark IV Industries, Inc. (NYSE:
IV) announced today that its Board of Directors has adopted a
Shareholders Rights Plan designed to deter coercive or unfair
takeover tactics and to prevent an acquiror from gaining control
of the corporation without offering a fair price to all
stockholders.
According to Chairman and Chief Executive Officer, Sal
H.Alfiero, the action is being taken in accordance with Mark
IV's goal of building long-term value for its public
stockholders; Mark IV is not aware of any effort being
contemplated to acquire control of the corporation.
Details of the Shareholders Rights Plan are outlined
in a letter which will be mailed to all Mark IV stockholders.
Under the Plan, Preferred Stock Purchase Rights will be
distributed as a dividend at the rate of one Right for each
share of Common Stock held as of the close of business on June
2, 1995.
The Rights will expire at the close of business on
June 2, 2005.
Each Right will entitle the holder to buy one one-
hundredth of a newly-issued share of Mark IV Industries, Inc.
Series A Junior Participating Preferred Stock at an exercise
price of $80.00.
The Rights will detach from the Common Stock and will
initially become exercisable for such shares of Preferred Stock
if a person or group acquires beneficial ownership of, or
commences a tender or exchange offer which would result in such
person or group beneficially owning, 20 percent or more of Mark
IV's Common Stock, except through a tender or exchange offer for
all shares which the Board determines to be fair and otherwise
in the best interest of Mark IV and its stockholders.
If any person becomes the beneficial owner of 20
percent or more of Mark IV's Common Stock (except through such
an offer which the Board determines to be fair) and the Board of
Directors does not within 10 days thereafter redeem the Rights,
each Right not owned by such person or related parties will then
enable its holder to purchase, at the Right's then-current
exercise price, Mark IV Common Stock (or, in certain
circumstances as determined by the Board, a combination of cash,
property, common stock or other securities) having a value of
twice the Right's exercise price.
Under certain circumstances, if Mark IV is acquired in
a merger or similar transaction with another person, or sells
more than 50 percent of its assets, earning power or cash flow
to another entity, each Right that has not previously been
exercised will entitle its holder to purchase, at the Right's
then-current exercise price, common stock of such other entity
having a value of twice the Right's exercise price.
Mark IV will generally be entitled to redeem the
Rights at one cent per Right at any time until the 10th day
following public announcement that a 20 percent position has
been acquired. Prior to such time, the redemption period may be
extended by the Board of Directors.
Mark IV Industries, Inc., headquartered in the Buffalo
suburb of Amherst, New York, manufactures products and systems
for Power and Fluid Transfer and Professional Audio markets.
