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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 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 31, 1996
McDonnell Douglas Corporation
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(Exact Name of Registrant as Specified in its Charter)
Maryland 1-3685 43-0400674
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State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
Post Office Box 516, St. Louis, Missouri 63166-0516
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(Address of Principal Executive Offices) (Zip Code)
(314) 232-0232
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Registrant's Telephone Number
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Item 5. Other Events.
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Effective May 31, 1996, the Company amended the Rights Agreement, dated
as of August 2, 1990 and amended as of January 3, 1995, between the
Company and First Chicago Trust Company of New York, as Rights Agent in
order to provide for a Purchase Price (as defined in the Rights
Agreement) of $125 after giving effect to the 2-for-1 stock split
approved by the Board on January 26, 1996. At the same time the Company
also restated the Rights Agreement in order to consolidate the new
amendments with prior amendments to the Rights Agreement in one document
for ease of reference.
Each issued and outstanding share of the Company's Common Stock
has attached to it one Preferred Stock Purchase Right which upon the
occurrence of certain events would enable a holder to purchase one one-
hundredth of a share of the Company's Series A Junior Participating
Preferred Stock. Because of the nature of the voting, dividend and
liquidation rights of the Series A Junior Participating Preferred Stock,
the value of each one one-hundredth of a share of Series A Junior
Participating Preferred Stock should approximate the value of one share
of Common Stock. The amount and type of securities into which each
Preferred Stock Purchase Right is exercisable are subject to adjustment
upon the occurrence of certain events.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits.
Exhibit No. Description of Exhibit
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4 Amended and Restated Rights Agreement, dated as of May 31, 1996
between McDonnell Douglas Corporation and First Chicago Trust
Company of New York which includes the form of Articles
Supplementary for Series A Junior Participating Preferred Stock
as Exhibit A, the form of Right Certificate as Exhibit B and
the Summary of Preferred Stock Purchase Rights as Exhibit C.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by
the undersigned, hereunto duly authorized.
MCDONNELL DOUGLAS CORPORATION
May 31, 1996 By: /s/ F. Mark Kuhlmann
(Date) ---------------------------------
F. Mark Kuhlmann
Senior Vice President-
and General Counsel
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EXHIBIT INDEX
Exhibit No. Description of Exhibit
4 Amended and Restated Rights Agreement, dated as of May 31, 1996
between McDonnell Douglas Corporation and First Chicago Trust
Company of New York which includes the form of Articles
Supplementary for Series A Junior Participating Preferred Stock
as Exhibit A, the form of Right Certificate as Exhibit B and
the Summary of Preferred Stock Purchase Rights as Exhibit C.
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AMENDED AND RESTATED
RIGHTS AGREEMENT
MCDONNELL DOUGLAS CORPORATION
and
FIRST CHICAGO TRUST COMPANY OF NEW YORK
Rights Agent
amended and restated as of May 31, 1996
(originally dated as of August 2, 1990)
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AMENDED AND RESTATED
RIGHTS AGREEMENT
TABLE OF CONTENTS
Page
Section 1. Certain Definitions - 2 -
Section 2. Appointment of Rights Agent - 5 -
Section 3. Issue of Right Certificates - 5 -
Section 4. Form of Right Certificates - 8 -
Section 5. Countersignature and Registration - 8 -
Section 6. Transfer, Split Up, Combination and Exchange of
Right Certificates; Mutilated, Destroyed, Lost or
Stolen Right Certificates - 9 -
Section 7. Exercise of Rights; Purchase Price; Expiration
Date of Rights - 10 -
Section 8. Cancellation and Destruction of Right
Certificates - 12 -
Section 9. Reservation and Availability of Shares of
Preferred Stock - 12 -
Section 10. Preferred Stock Record Date - 13 -
Section 11. Adjustment of Purchase Price, Number of Shares
or Number of Rights - 14 -
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares - 22 -
Section 13. Consolidation, Merger or Sale or Transfer of
Assets or Earning Power - 22 -
Section 14. Fractional Rights and Fractional Shares - 25 -
Section 15. Rights of Action - 27 -
Section 16. Agreement of Right Holders - 27 -
Section 17. Right Certificate Holder Not Deemed a
Stockholder - 28 -
Section 18. Concerning the Rights Agent - 28 -
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Section 19. Merger or Consolidation or Change of Name of
Rights Agent - 28 -
Section 20. Duties of Rights Agent - 29 -
Section 21. Change of Rights Agent - 31 -
Section 22. Issuance of New Right Certificates - 32 -
Section 23. Redemption and Termination - 32 -
Section 24. Exchange - 33 -
Section 25. Notice of Proposed Actions - 35 -
Section 26. Notices - 36 -
Section 27. Supplements and Amendments - 36 -
Section 28. Successors - 37 -
Section 29. Benefits of This Agreement - 37 -
Section 30. Severability - 37 -
Section 31. Governing Law - 37 -
Section 32. Counterparts - 37 -
Section 33. Descriptive Headings - 37 -
Exhibit A - Form of Articles Supplementary Series A Junior
Participating Preferred Stock A-1
Exhibit B - Form of Right Certificate B-1
Exhibit C - Summary of Preferred Stock Purchase Rights C-1
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AMENDED AND RESTATED
RIGHTS AGREEMENT
This Agreement, dated as of August 2, 1990 and amended
and restated as of May 31, 1996, is entered into between
MCDONNELL DOUGLAS CORPORATION, a Maryland corporation (the
"Company"), and FIRST CHICAGO TRUST COMPANY OF NEW YORK, a New
York corporation (the "Rights Agent").
W I T N E S S E T H
WHEREAS, on August 2, 1990 the Board of Directors of
the Company authorized and declared a dividend distribution of
one right (hereinafter referred to as a "Right") for each share
of Common Stock, par value $1.00 per share, of the Company
outstanding at the close of business on August 13, 1990 (the
"Record Date"), (other than shares of such Common Stock held in
the Company's treasury on such date) and has authorized the
issuance of one Right in respect of each share of Common Stock of
the Company issued between the Record Date (whether originally
issued or issued from the Company's treasury) and the
Distribution Date (as such term is defined in Section 3 hereof),
each Right 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 Articles Supplementary attached hereto as Exhibit
A, upon the terms and subject to the conditions hereinafter set
forth (the "Rights"); and
WHEREAS, on October 28, 1994 the Board of Directors of
the Company authorized and declared a 3-for-1 stock split to be
effected by the payment of a stock dividend of two shares of
Common Stock on each outstanding share of Common Stock on the
close of business on December 2, 1994 and authorized and directed
that the Company amend the terms of this Agreement to extend the
Final Expiration Date, change the Purchase Price and make certain
other conforming changes and certain other minor amendments to
help eliminate certain ambiguities; and
WHEREAS, on January 26, 1996 the Board of Directors of
the Company authorized and declared a 2-for-1 stock split to be
effected by the payment of a stock dividend of one share of
Common Stock on each outstanding share of Common Stock on the
close of business on May 10, 1996 and on March 6, 1996 the Board
of Directors authorized and directed that the Company amend the
terms of this Agreement; and
NOW, THEREFORE, in consideration of the premises and
the mutual agreements herein set forth, the parties hereby agree
as follows:
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Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person (as
hereinafter defined) who or which, together with all Affiliates
(as hereinafter defined) and Associates (as hereinafter defined)
of such Person, without the prior written approval of a majority
of the Board of Directors, shall be the Beneficial Owner (as
hereinafter defined) of securities of the Company constituting
20% or more of the Voting Power (as hereinafter defined) of the
Company or was such a Beneficial Owner at any time after the date
hereof, whether or not such Person continues to be the Beneficial
Owner of securities representing 20% or more of the Voting Power
of the Company, but shall not include the Company, any Subsidiary
of the Company, any employee benefit plan or compensation
arrangement of the Company or any Subsidiary of the Company, or
any entity holding securities of the Company to the extent
organized, appointed or established by the Company or any
Subsidiary of the Company for or pursuant to the terms of any
such employee benefit plan or compensation arrangement.
Notwithstanding the foregoing, no Person shall become an
"Acquiring Person" as the result of an acquisition of voting
securities of the Company by the Company which, by reducing the
amount of such securities outstanding, increases the
proportionate voting power of such securities beneficially owned
by such Person to 20% or more of the Voting Power; provided,
however, that if a Person becomes the Beneficial Owner of
securities constituting 20% or more of the Voting Power by reason
of purchases by the Company and shall, after such purchases by
the Company, become the Beneficial Owner of any additional voting
securities of the Company without the prior written approval of a
majority of the Board of Directors, then such Person shall be
deemed to be an Acquiring Person.
(b) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), as in effect on the
date hereof.
(c) A Person shall be deemed the "Beneficial Owner"
of, and shall be deemed to "beneficially own," any securities:
(i) which such Person or any of such Person's
Affiliates or Associates beneficially owns, directly or
indirectly as determined pursuant to Rule 13d-3 of the General
Rules and Regulations under the Exchange Act, as in effect on the
date hereof;
(ii) which such Person or any of such Person's
Affiliates or Associates has (A) the right to acquire (whether
such right is exercisable immediately or only after the passage
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of time) pursuant to any agreement, arrangement or understanding
(other than customary agreements with and between underwriters
and selling group members with respect to a bona fide public
offering of securities), or upon the exercise of conversion
rights, exchange rights, rights (other than these Rights),
warrants or options, or otherwise, provided, however, that a
Person shall not be deemed the "Beneficial Owner" of securities
tendered pursuant to a tender or exchange offer made by or on
behalf of such Person or any of such Person's Affiliates or
Associates until such tendered securities are accepted for
payment or exchange; or (B) the right to vote pursuant to any
agreement, arrangement or understanding, provided, however, that
a Person shall not be deemed the "Beneficial Owner" of any
security under this clause (B) if the agreement, arrangement or
understanding to vote such security (1) arises solely from a
revocable proxy or consent given in response to a public proxy or
consent solicitation made pursuant to, and in accordance with,
the applicable rules and regulations under the Exchange Act and
(2) 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 with which such Person or any of
such Person's Affiliates or Associates has any agreement,
arrangement or understanding (other than customary agreements
with and between underwriters and selling group members with
respect to a bona fide public offering of securities) for the
purpose of acquiring, holding, voting (except pursuant to a
revocable proxy or consent as described in clause (B) of
subparagraph (ii) of this paragraph (c)) or disposing of any
securities of the Company.
Notwithstanding anything in this definition of
Beneficial Ownership to the contrary, the phrase "then
outstanding," when used with reference to a Person's Beneficial
Ownership of securities of the Company, shall mean the number of
such securities then issued and outstanding together with the
number of such securities not then actually issued and
outstanding which such Person would be deemed to own beneficially
hereunder.
(d) "Board of Directors" shall mean the Board of
Directors of the Company as constituted from time to time.
(e) "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.
(f) "Close of business" on any given date shall mean
5:00 P.M., New York, New York time, on such date; provided,
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however, that if such date is not a Business Day it shall mean
5:00 P.M., New York, New York time, on the next succeeding
Business Day.
(g) "Common Stock" shall mean the Common Stock, par
value $1.00 per share, of the Company, except that "Common Stock"
when used with reference to any Person other than the Company
shall mean the capital stock with the greatest Voting Power of
such Person or the equity securities or other equity interest
having power to control or direct the management of such Person
or, if such Person is a Subsidiary (as hereinafter defined) of
another Person, of the Person which ultimately controls such
first-mentioned Person and which has issued and outstanding such
capital stock, equity securities or equity interests.
(h) "Distribution Date" shall have the meaning set
forth in Section 3 hereof.
(i) "Expiration Date" shall have the meaning set forth
in Section 7(a) hereof.
(j) "Final Expiration Date" shall have the meaning set
forth in Section 7(a) hereof.
(k) "Person" shall mean any individual, firm,
corporation, partnership or other entity, and shall include any
successor (by merger or otherwise) of any such entity.
(l) "Preferred Stock" shall mean the Series A Junior
Participating Preferred Stock, par value $1.00 per share, of the
Company.
(m) "Purchase Price" shall have the meaning set forth
in Section 4 hereof.
(n) "Redemption Price" shall have the meaning set
forth in Section 23(a) hereof.
(o) "Section 11(b) Event" shall have the meaning set
forth in Section 11(b) hereof.
(p) "Section 13 Event" shall mean an event described
in clauses (x), (y) or (z) of Section 13(a) hereof.
(q) "Stock Acquisition Date" shall mean the earlier of
(i) the first date of public announcement by the Company or an
Acquiring Person that an Acquiring Person has become an Acquiring
Person, or (ii) the date on which the Company first has notice,
direct or indirect, or otherwise determines that a Person has
become an Acquiring Person.
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(r) "Subsidiary" shall mean, with respect to any
Person, any other Person of which securities or other ownership
interests having ordinary Voting Power, in the absence of
contingencies, to elect a majority of the board of directors (or
other persons performing similar functions) of such other Person
are at the time directly or indirectly owned by such Person or
one or more of such Person's Subsidiaries, except that
"Subsidiary" when used with reference to the Company shall mean
any Person of which either a majority of the Voting Power of the
voting equity securities or a majority of the equity interests is
owned, directly or indirectly, by the Company.
(s) "Voting Power" shall mean the voting power of all
securities of a Person then outstanding generally entitled to
vote for the election of directors of the Person (or, where
appropriate, for the election of persons performing similar
functions).
Section 2. Appointment of Rights Agent. The Company
hereby appoints the Rights Agent to act as agent for the Company
and the holders of the Rights (who, in accordance with Section 3
hereof, shall prior to the Distribution Date also be the holders
of the Common Stock) in accordance with the terms and conditions
hereof, and the Rights Agent hereby accepts such appointment.
The Company may from time to time appoint such Co-Rights Agents
as it may deem necessary or desirable. In the event the Company
appoints one or more Co-Rights Agents, the respective duties of
the Rights Agents and any Co-Rights Agents shall be as the
Company shall determine.
Section 3. Issue of Right Certificates.
(a) Until the earlier of (i) the close of business on
the tenth Business Day after the Stock Acquisition Date or
(ii) the close of business on the tenth Business Day (or such
later date as may be determined by action of the Board of
Directors but in no event later than such time as any Person
becomes an Acquiring Person) 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 or
compensation arrangement of the Company or of any Subsidiary of
the Company, or any entity holding securities of the Company to
the extent organized, appointed or established by the Company or
any Subsidiary of the Company for or pursuant to the terms of any
such employee benefit plan or compensation arrangement) is first
published or sent or given within the meaning of Rule l4d-2(a) of
the General Rules and Regulations under the Exchange Act, without
the prior written approval of a majority of the Board of
Directors, which tender or exchange offer would result in any
Person becoming the Beneficial Owner of Voting Power aggregating
20% or more of the outstanding Voting Power (including any such
date which is after the date of this Agreement and prior to the
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issuance of the Rights; the earlier of such dates being herein
referred to as the "Distribution Date"), (y) 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 Right Certificates)
and not by separate Right Certificates, as more fully set forth
below, and (z) the Rights (and the right to receive certificates
therefor) will be transferable only in connection with the
transfer of the underlying shares of Common Stock, as more fully
set forth below. As soon as practicable after the Company has
notified the Rights Agent of the occurrence of the Distribution
Date, the Company shall prepare and execute, and the Rights Agent
shall countersign and 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, a right
certificate, in substantially the form of Exhibit B hereto (the
"Right Certificate"), evidencing one Right for each share of
Common Stock so held. As of and after the Distribution Date, the
Rights will be evidenced solely by such Right Certificates.
(b) On the Record Date or as soon as practicable
thereafter, the Company will send a copy of a Summary of Rights
to Purchase Preferred Stock, in substantially the form of
Exhibit C hereto (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 (or the earlier redemption,
expiration or termination of the Rights), the Rights will be
evidenced by such certificates for the Common Stock registered in
the names of the holders of the Common Stock and the registered
holders of the Common Stock shall also be registered holders of
the associated Rights. Until the Distribution Date (or the
earlier redemption, expiration or termination of the Rights), the
surrender for transfer of any of the certificates for the Common
Stock outstanding in respect of which Rights have been issued
(with or without a copy of the Summary of Rights attached
thereto) shall also constitute the transfer of the Rights
associated with the Common Stock represented by such certificate.
(c) Certificates for the Common Stock issued after the
Record Date but prior to the earlier of the Distribution Date or
the redemption, expiration or termination of the Rights shall be
deemed also to be certificates for Rights and shall have
impressed, printed or written on, or otherwise affixed to them
the following legend:
This certificate also evidences and entitles the
holder hereof to certain Rights as set forth in an
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Amended and Restated Rights Agreement ("Rights
Agreement") originally dated as of August 2, 1990 and
as amended and restated as of May 31, 1996 between
McDonnell Douglas Corporation (the "Company") and First
Chicago Trust Company of New York (the "Rights Agent"),
the terms of which are incorporated herein by reference
and a copy of which is on file at the principal
executive offices of the Company. Under certain
circumstances, as set forth in the Rights Agreement,
such Rights may be redeemed, expire, or be evidenced by
separate certificates and no longer be evidenced by
this certificate. The Company will mail to the holder
of this certificate a copy of the Rights Agreement
without charge within five days after receipt of a
written request therefor. Under certain circumstances,
Rights issued to or held by Acquiring Persons or their
Affiliates or Associates (as defined in the Rights
Agreement) and any subsequent holder of such Rights may
become null and void.
With respect to such certificates containing the foregoing
legend, until the Distribution Date (or the earlier redemption,
expiration or termination of the Rights), the Rights associated
with the Common Stock represented by such certificates shall be
evidenced by such certificates alone, and the surrender for
transfer of any of such certificates shall also constitute the
transfer of the Rights associated with the Common Stock
represented by such certificates.
In the event that the Company purchases or acquires any
Common Stock after the Record Date but prior to the Distribution
Date, any Rights associated with such Common Stock shall be
deemed cancelled and retired so that the Company shall not be
entitled to exercise any Rights associated with shares of Common
Stock which are no longer outstanding.
Notwithstanding the foregoing, any certificate of
Common Stock bearing a legend as previously set forth in a
predecessor to this Agreement issued prior to the date hereof,
shall be valid in all respects and shall represent the Rights in
the same manner and under the same circumstances as if the proper
legend were inscribed thereon, without any need or requirements
for amendment or change to any such certificate. Any certificate
of Common Stock bearing a legend as previously set forth in a
predecessor to this Agreement issued following the date hereof
and prior to the time when certificates of Common Stock bearing
the new legend become available, shall also be valid in all
respects and shall represent the Rights in the same manner and
under the same circumstances as if the proper legend were
inscribed thereon, without any need or requirements for amendment
or change to any such certificate.
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Section 4. Form of Right Certificates.
(a) The Right Certificates (and the forms of election
to purchase shares and of assignment to be printed on the reverse
thereof) shall be in substantially the same form as 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, rule or regulation 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 customary usage.
Subject to the provisions of Section 11 and Section 22 hereof,
the Right Certificates, whenever issued, 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 per
one one-hundredth of a share as set forth therein (the "Purchase
Price"), but the number and identity of such shares and the
Purchase Price shall be and remain subject to adjustment as
provided in Sections 11, 13 and 22 hereof.
(b) Any Right Certificate issued pursuant to Section
3(a) hereof that represents Rights beneficially owned by an
Acquiring Person or any Associate or Affiliate thereof and any
Right Certificate issued at any time upon the transfer of any
Rights to an Acquiring Person or any Associate or Affiliate
thereof or to any nominee of such Acquiring Person, Associate or
Affiliate, and any Right Certificate issued pursuant to Section 6
hereof, Section 11 hereof or Section 22 hereof upon transfer,
exchange, replacement or adjustment of any other Right
Certificate referred to in this sentence, shall contain (to the
extent feasible) the following legend:
The Rights represented by this Right Certificate
were issued to a Person who was an Acquiring Person or
an Affiliate or an Associate of an Acquiring Person.
This Right Certificate and the Rights represented
hereby are void in the circumstances specified in
Section 7(e) of the Rights Agreement.
The failure to print the foregoing legend on any such Right
Certificate or any defect therein shall not affect in any manner
whatsoever the application or interpretation of the provisions of
Section 7(e) hereof.
Section 5. Countersignature and Registration.
(a) The Right 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
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thereof which shall be attested by the Secretary or an Assistant
Secretary of the Company, either manually or by facsimile
signature. The Right Certificates shall be countersigned
manually or by facsimile signature by the Rights Agent or the
Registrar and shall not be valid for any purpose unless so
countersigned. In case any officer of the Company whose manual
or facsimile signature is affixed to the Right Certificates shall
cease to be such officer of the Company before countersignature
by the Rights Agent or the Registrar and issuance and delivery by
the Company, such Right Certificates, nevertheless, may be
countersigned by the Rights Agent or the Registrar, issued and
delivered with the same force and effect as though the person who
signed such Right Certificates had not ceased to be such officer
of the Company. Any Right Certificate may be signed on behalf of
the Company by any person who, at the actual date of the
execution of such Right Certificate, shall be a proper officer of
the Company to sign such Right Certificate, although at the date
of the execution of this Rights Agreement any such person was not
such an officer.
(b) Following the Distribution Date, the Rights Agent
will keep or cause to be kept, at its shareholder services office
or such other office designated for such purpose, books for
registration and transfer of the Right Certificates issued
hereunder. Such books shall show the names and addresses of the
respective holders of the Right Certificates, the number of
Rights evidenced on its face by each of the Right Certificates,
the certificate number of each of the Right Certificates and the
date of each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and
Exchange of Right Certificates; Mutilated, Destroyed, Lost or
Stolen Right Certificates. Subject to the provisions of
Section 14 hereof, at any time after the close of business on the
Distribution Date, and at or prior to the close of business on
the Expiration Date (as such term is defined in Section 7(a)
hereof), any Right Certificate or Right Certificates (other than
Right Certificates representing Rights that have become void
pursuant to Section 7(e) hereof) may be transferred, split up,
combined or exchanged for another Right Certificate or Right
Certificates, entitling the registered holder to purchase a like
number of shares of Preferred Stock as the Right Certificate or
Right Certificates surrendered then entitled such holder to
purchase. Any registered holder desiring to transfer, split up,
combine or exchange any Right Certificate shall make such request
in writing delivered to the Rights Agent, and shall surrender the
Right Certificate or Right Certificates to be transferred, split
up, combined or exchanged at the principal office of the Rights
Agent. Thereupon, the Rights Agent shall countersign and deliver
to the person entitled thereto a Right Certificate or Right
Certificates, as the case may be, as so requested. The Company
may require payment of a sum sufficient to cover any tax or
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governmental charge that may be imposed in connection with any
transfer, split up, combination or exchange of Right
Certificates.
Upon receipt by the Company and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Right Certificate, and, in case of
loss, theft or destruction, of indemnity or security reasonably
satisfactory to them, and reimbursement to the Company and the
Rights Agent of all reasonable expenses incidental thereto, and
upon surrender to the Rights Agent and cancellation of the Right
Certificate if mutilated, the Company will make and deliver a new
Right Certificate of like tenor to the Rights Agent for
countersignature and delivery to the registered owner in lieu of
the Right Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights.
(a) The registered holder of any Right Certificate may
exercise the Rights evidenced thereby (except as otherwise
provided herein) in whole or in part at any time after the
Distribution Date upon surrender of the Right Certificate, with
the form of election to purchase on the reverse side thereof duly
executed, to the Rights Agent at the shareholder services office
of the Rights Agent or such office designated for such purpose,
together with payment of the Purchase Price for each one-one
hundredth of a share of Preferred Stock as to which the Rights
are exercised, at or prior to the close of business on the
Expiration Date. The "Expiration Date", as used in this
Agreement, shall be the earliest of (i) the Final Expiration
Date, (ii) the time at which the Rights are redeemed as provided
in Section 23 hereof, or (iii) the time at which such Rights are
exchanged as provided in Section 24 hereof. The "Final
Expiration Date", as used in this Agreement, shall be December
31, 2004.
(b) The Purchase Price for each one one-hundredth of a
share of Preferred Stock pursuant to the exercise of a Right
shall be $125, shall be subject to adjustment from time to time
as provided in Sections 11 and 13 hereof and shall be payable in
lawful money of the United States of America in accordance with
paragraph (c) below.
(c) Upon receipt of a Right Certificate, with the form
of election to purchase duly executed, accompanied by payment of
the Purchase Price for each one one-hundredth of a share of
Preferred Stock to be purchased and an amount equal to any
applicable transfer tax required to be paid by the holder of the
Rights pursuant hereto in accordance with Section 9 hereof by
certified check, bank draft or money order payable to the order
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of the Company or the Rights Agent, the Rights Agent shall,
subject to Section 20(k) hereof, thereupon promptly (i) either
(A) requisition from any transfer agent of the shares of
Preferred Stock (or make available, if the Rights Agent is the
transfer agent) certificates for the number of shares of
Preferred Stock to be purchased and the Company hereby
irrevocably authorizes its transfer agent to comply with all such
requests, or (B) if the Company, in its sole discretion, shall
have elected to deposit the shares of Preferred Stock issuable
upon exercise of the Rights hereunder into a depositary,
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 all such requests, (ii) when appropriate,
requisition from the Company the amount of cash to be paid in
lieu of issuance of fractional shares in accordance with Section
14 hereof, (iii) promptly after receipt of such certificates or
depositary receipts cause the same to be delivered to or upon the
order of the registered holder of such Right Certificate,
registered in such name or names as may be designated by such
holder, and (iv) when appropriate, after receipt, promptly
deliver such cash to or upon the order of the registered holder
of such Right Certificate.
(d) In case the registered holder of any Right
Certificate shall exercise less than all the Rights evidenced
thereby, a new Right Certificate evidencing Rights equivalent to
the Rights remaining unexercised shall be issued by the Rights
Agent to the registered holder of such Right Certificate or to
his duly authorized assigns, subject to the provisions of Section
14 hereof.
(e) Notwithstanding anything in this Agreement to the
contrary, upon the first occurrence of a Section 11(b) Event or a
Section 13 Event, any Rights that are or were at any time on or
after the earlier of the Stock Acquisition Date or the
Distribution Date beneficially owned by an Acquiring Person or
any Associate or Affiliate of an Acquiring Person shall become
void with respect to the rights provided under Section 11(b),
Section 13(a) and Section 24 hereof and any holder of such Rights
shall thereafter have no right to exercise such Rights under the
provisions of Section 11(b) and Section 13(a) hereof, or to
receive any Common Stock in exchange therefor pursuant to the
provisions of Section 24 hereof.
(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
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in this Section 7 unless the certificate contained in the
appropriate form of election to purchase set forth on the reverse
side of the Right Certificate surrendered for such exercise shall
have been properly completed and duly executed by the registered
holder thereof and the Company shall have been provided with 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 Right
Certificates. All Right Certificates surrendered for the purpose
of exercise, transfer, split up, combination or exchange shall,
if surrendered to the Company or to any of its agents, be
delivered to the Rights Agent for cancellation or in cancelled
form, or, if surrendered to the Rights Agent, shall be cancelled
by it, and no Right Certificates shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this
Rights Agreement. The Company shall deliver to the Rights Agent
for cancellation and retirement, and the Rights Agent shall so
cancel and retire, any other Right Certificate purchased or
acquired by the Company otherwise than upon the exercise thereof.
The Rights Agent shall deliver all cancelled Right Certificates
to the Company, or shall, at the written request of the Company,
destroy such cancelled Right Certificates, and in such case shall
deliver a certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Shares of
Preferred Stock.
(a) The Company covenants and agrees that it will
cause to be reserved and kept available out of its authorized and
unissued shares of Preferred Stock or its authorized and issued
shares of Preferred Stock held in its treasury, the number of
shares of Preferred Stock that will be sufficient to permit the
exercise in full of all outstanding Rights and, after the
occurrence of a Section 11(b) Event or a Section 13 Event, shall
so reserve and keep available a sufficient number of shares of
Preferred Stock, Common Stock and/or other securities which may
be required to permit the exercise in full of the Rights pursuant
to this Agreement.
(b) The Company covenants and agrees that it will take
all such action as may be necessary to ensure that all shares of
Preferred Stock and/or other securities delivered upon exercise
of Rights shall, at the time of delivery of the certificates for
such shares or other securities (subject to payment of the
Purchase Price), be duly and validly authorized and issued and
fully paid and nonassessable shares or securities.
(c) The Company shall use its best efforts to
(i) file, as soon as practicable following the first occurrence
of an event which would establish the Distribution Date, a
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registration statement under the Securities Act of 1933, as
amended (the "Securities 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 Securities Act) until
the Expiration Date. The Company will also take such action as
may be appropriate under the "Blue Sky Laws" of the various
states.
(d) The Company further covenants and agrees that it
will pay when due and payable any and all federal and state
transfer taxes and charges which may be payable in respect of the
issuance or delivery of the Right Certificates or of any shares
of Preferred Stock and/or other securities upon the exercise of
Rights. The Company shall not, however, be required to pay any
transfer tax which may be payable in respect of any transfer
involved in the transfer or delivery of Right Certificates or the
issuance or delivery of certificates or depositary receipts for
Preferred Stock and/or other securities in a name other than that
of the registered holder of the Right Certificate evidencing
Rights surrendered for exercise, nor shall the Company be
required to issue or deliver any certificates or depositary
receipts for shares of Preferred Stock and/or other securities
upon the exercise of any Rights until any such tax shall have
been paid (any such tax being payable by the holder of such Right
Certificate at the time of surrender) or until it has been
established to the Company's satisfaction that no such tax is
due.
Section 10. Preferred Stock Record Date. Each person
(other than the Company) in whose name any certificate for shares
of Preferred Stock (or other securities) is issued upon the
exercise of Rights shall for all purposes be deemed to have
become the holder of record of the Preferred Stock (or other
securities) represented thereby on, and such certificate shall be
dated, the date upon which the Right Certificate evidencing such
Rights was duly surrendered and payment of the Purchase Price
(and any applicable transfer taxes) was made; provided, however,
that if the date of such surrender and payment is a date upon
which the Preferred Stock (or other securities) transfer books of
the Company are closed, such person shall be deemed to have
become the record holder of such shares on, and such certificate
shall be dated, the next succeeding Business Day on which the
Preferred Stock (or other securities) transfer books of the
Company are open. Prior to the exercise of the Rights evidenced
thereby, the holder of a Right Certificate shall not be entitled
to any rights of a 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
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shall not be entitled to receive any notice of any proceedings of
the Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number of
Shares or Number of Rights. The Purchase Price, the number and
identity 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) In the event the Company shall at any time after
the date of this Agreement (i) declare a dividend on the
Preferred Stock payable in shares of Preferred Stock,
(ii) subdivide the outstanding Preferred Stock, (iii) combine the
outstanding Preferred Stock into a smaller number of shares or
(iv) 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, the Purchase Price in effect at the
time of the record date for such dividend or the time of the
effective date of such subdivision, combination or
reclassification, and the number and kind of shares of capital
stock, including Preferred Stock, issuable upon exercise of a
Right, shall be proportionately adjusted so that the holder of
any Right exercised after such time, upon payment of the
aggregate consideration such holder would have had to pay to
exercise such Right prior to such time, shall be entitled to
receive the aggregate number and kind of shares of capital stock,
including Preferred Stock, which, if such Right had been
exercised immediately prior to such date and at a time when the
Preferred Stock transfer books of the Company were open, he would
have owned upon such exercise and been entitled to receive by
virtue of such dividend, subdivision, combination or
reclassification.
(b) In the event any Person shall become an Acquiring
Person ("Section 11(b) Event"), then proper provision shall be
made so that each holder of a Right, subject to Section 7(e) and
Section 24 hereof and except as provided below, shall after the
later of the occurrence of such event and the effective date of
an appropriate registration statement pursuant to Section 9
hereof, have a right to receive, upon exercise thereof at the
then current Purchase Price multiplied by the then number of one
one-hundredths of a share of Preferred Stock for which a Right is
then exercisable in accordance with the terms of this Agreement,
in lieu of shares of Preferred Stock, such number of shares of
Common Stock of the Company as shall equal the result obtained by
(y) multiplying the then current Purchase Price by the then
number of one one-hundredths of a share of Preferred Stock for
which a Right is then exercisable and dividing that product by
(z) 50% of the current market price per one share of Common Stock
(determined pursuant to Section 11(f) hereof on the date of the
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occurrence of the Section 11(b) Event) (such number of shares
being referred to as the "number of Adjustment Shares").
(c) In the event that there shall not be sufficient
Treasury shares or authorized but unissued shares of Common Stock
to permit the exercise in full of the Rights in accordance with
the foregoing Section 11(b), and the Rights become so
exercisable, notwithstanding any other provision of this
Agreement, to the extent necessary and permitted by applicable
law and any agreements in effect on the date hereof to which the
Company is a party, each Right shall thereafter represent the
right to receive, upon exercise thereof at the then current
Purchase Price multiplied by the then number of one one-
hundredths of a share of Preferred Stock for which a Right is
then exercisable in accordance with the terms of this Agreement,
a number of shares, or units of shares, of (y) Common Stock, and
(z) preferred stock (or other equity securities) of the Company,
including, but not limited to Preferred Stock, equal in the
aggregate to the number of Adjustment Shares where the Board of
Directors shall have in good faith deemed such shares or units,
other than the shares of Common Stock, to have at least the same
value and voting rights as the Common Stock (a "common stock
equivalent"); provided, however, if there are unavailable
sufficient shares (or fractions of shares) of Common Stock and/or
common stock equivalents, then the Company shall take all such
action as may be necessary to authorize additional shares of
Common Stock or common stock equivalents for issuance upon
exercise of the Rights, including the calling of a meeting of
shareholders; and provided, further, that if the Company is
unable to cause sufficient shares of Common Stock and/or common
stock equivalents to be available for issuance upon exercise in
full of the Rights, then the Company, to the extent necessary
and permitted by applicable law and any agreements or instruments
in effect on the date thereof to which it is a party, shall make
provision to pay an amount in cash equal to twice the Purchase
Price (as adjusted pursuant to this Section 11), in lieu of
issuing shares of Common Stock and/or common stock equivalents.
To the extent that the Company determines that some action needs
to be taken pursuant to this Section 11(c), a majority of the
Board of Directors may suspend the exercisability of the Rights
for a period of up to sixty (60) days following the date on which
the Section 11(b) Event shall have occurred, in order to decide
the appropriate form of distribution to be made pursuant to this
Section 11(c) 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. The Board of Directors may, but
shall not be required to, establish procedures to allocate the
right to receive Common Stock and common stock equivalents upon
exercise of the Rights among holders of Rights, which such
allocation may be, but is not required to be, pro-rata.
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(d) If the Company shall fix a record date for the
issuance of rights or warrants to all holders of Preferred Stock
entitling them (for a period expiring within 90 calendar days
after such record date) to subscribe for or purchase Preferred
Stock (or securities having the same or more favorable rights,
privileges and preferences as the 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 or exercise price per share, as the case may be, less
than the current market price per share of Preferred Stock (as
defined in Section 11(f) hereof) on such record date, the
Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect
immediately prior to such 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 or equivalent preferred stock
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 in a consideration, part or
all of which shall be in a form other than cash, the value of
such consideration shall be as determined in good faith by a
majority of the Board of Directors, whose determination shall be
described in a statement filed with the Rights Agent. 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.
(e) If the Company shall fix a record date for the
making of 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 or
surviving corporation) of evidences of indebtedness, cash (other
than a regular periodic cash dividend out of earnings or retained
earnings of the Company), assets (other than a dividend payable
in Preferred Stock, but including any dividend payable in stock
other than Preferred Stock) or convertible securities,
subscription rights or warrants (excluding those referred to in
Section 11(d) hereof), the Purchase Price to be in effect after
such record date shall be determined by multiplying the Purchase
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Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the current market
price for one share of Preferred Stock (as defined in Section
11(f) hereof) on such record date less the fair market value (as
determined in good faith by a majority of the Board of Directors,
whose determination shall be described in a statement filed with
the Rights Agent) of the portion of the assets or evidences of
indebtedness so to be distributed or of such convertible
securities, subscription rights or warrants applicable to one
share of Preferred Stock, and the denominator of which shall be
such current market price for one 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 again be adjusted to be the
Purchase Price which would then be in effect if such record date
had not been fixed.
(f) (i) For the purpose of any computation hereunder,
the "current market price" of any security (a "Security" for
purposes of this Section 11(f)(i)) on any date shall be deemed to
be the average of the daily closing prices per share of such
Security for the 30 consecutive Trading Days (as hereinafter
defined) immediately prior to such date; provided, however, that
in the event that the current market price per share of such
Security is determined during a period following the announcement
by the issuer of such Security of (A) a dividend or distribution
on such Security payable in shares of such Security or securities
convertible into shares of such Security or (B) any subdivision,
combination or reclassification of such Security, and prior to
the expiration of 30 Trading Days after the ex-dividend date for
such dividend or distribution or the record date for such
subdivision, combination or reclassification, then, and in each
such case, the "current market price" shall be appropriately
adjusted to reflect the current market price per share equivalent
of such Security. The closing price for each day shall be the
last sale price, regular way, or, in case no such sale takes
place on such day, the average of the closing bid and asked
prices, regular way, in either case as reported 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 Security is not listed or admitted to trading
on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange
on which the Security is listed or admitted to trading or, if the
Security is not listed or admitted to trading on any national
securities exchange, the 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 Security is not quoted by any such
organization, the average of the closing bid and asked prices as
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furnished by a professional market maker making a market in the
Security selected by a majority of the Board of Directors. If on
any such date no market maker is making a market in the Security,
the fair value of such Security on such date as determined in
good faith by a majority of the Board of Directors shall be used.
The term "Trading Day" shall mean a day on which the principal
national securities exchange on which the Security is listed or
admitted to trading is open for the transaction of business or,
if the Security is not listed or admitted to trading on any
national securities exchange, a Business Day. If the Security is
not publicly held or not so listed or traded, "current market
price" shall mean the fair value as determined in good faith by
a majority of the Board of Directors, whose determination shall
be described in a statement filed with the Rights Agent.
(ii) For the purpose of any computation hereunder,
the "current market price" per share (or one one-hundredth of a
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(f) (other than the last sentence thereof). If the
current market price per share (or one one-hundredth of a 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(f),
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 and the
"current market price" per one one-hundredth of a share of
Preferred Stock shall be equal to the current market price per
share of the Common Stock (as appropriately adjusted). If
neither the Common Stock nor the Preferred Stock is publicly held
or so listed or traded, "current market price" per share shall
mean the fair value per share as determined in good faith by the
Board of Directors, whose determination shall be described in a
statement filed with the Rights Agent and shall be conclusive for
all purposes.
(g) Anything herein to the contrary notwithstanding,
no adjustment in the Purchase Price shall be required unless such
adjustment would require an increase or decrease of at least 1%
in the Purchase Price; provided, however, that any adjustments
which by reason of this Section 11(g) 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,
as the case may be. Notwithstanding the first sentence of this
Section 11(g), any adjustment required by this Section 11 shall
be made no later than the earlier of (i) three years from the
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date of the transaction which mandates such adjustment or (ii)
the Expiration Date.
(h) In the event that at any time, as a result of an
adjustment made pursuant to Section 11(a) or (b) hereof, the
holder of any Right shall be entitled to receive upon exercise
of such Right any shares of capital stock of the Company other
than shares of Preferred Stock, thereafter the number of such
other shares so receivable upon exercise of any Right shall be
subject to adjustment from time to time in a manner and on terms
as nearly equivalent as practicable to the provisions with
respect to the shares contained in Section 11(a) through (e)
hereof, inclusive, and the provisions of Sections 7, 9, 10, 13
and 14 hereof with respect to the shares of Preferred Stock shall
apply on like terms to any such other shares.
(i) 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 shares of Preferred Stock or other capital
stock of the Company purchasable from time to time hereunder upon
exercise of the Rights, all subject to further adjustment of the
Purchase Price.
(j) Unless the Company shall have exercised its
election as provided in Section 11(k) hereof, upon each
adjustment of the Purchase Price as a result of the calculations
made in Section 11(d) and (e) hereof, 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 ten-thousandth)
obtained by (i) multiplying (A) the number of one one-hundredths
of a share of Preferred Stock covered by a Right immediately
prior to the adjustment by (B) 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.
(k) The Company may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of Rights,
in substitution for any adjustment in the number of shares of
Preferred Stock purchasable upon the exercise of a Right. Each
of the Rights outstanding after such adjustment of the number of
Rights shall be exercisable for the number of one one-hundredths
of a share of Preferred Stock for which such 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
ten-thousandth) obtained by dividing the Purchase Price in effect
immediately prior to adjustment of the Purchase Price by the
Purchase Price in effect immediately after adjustment of the
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Purchase Price. The Company shall make a public announcement of
its election to adjust the number of Rights, indicating the
record date for the adjustment, and, if known at the time, the
amount of the adjustment to be made. This record date may be the
date on which the Purchase Price is adjusted or any day
thereafter, but, if the Right Certificates have been issued,
shall be at least 10 days later than the date of the public
announcement. If Right Certificates have been issued, upon each
adjustment of the number of Rights pursuant to this Section
11(k), the Company shall, as promptly as practicable, cause to be
distributed to holders of record of Right Certificates on such
record date Right Certificates evidencing, subject to Section 14
hereof, the additional Rights to which such holders shall be
entitled as a result of such adjustment, or, at the option of the
Company, shall cause to be distributed to such holders of record
in substitution and replacement for the Right Certificates held
by such holders prior to the date of adjustment, and upon
surrender thereof, if required by the Company, new Right
Certificates evidencing all the Rights to which such holders
shall be entitled after such adjustment. Right Certificates so
to be distributed shall be issued, executed and countersigned in
the manner provided for herein (and 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 Right Certificates on
the record date specified in the public announcement.
(l) Irrespective of any adjustment or change in the
Purchase Price or the number of shares of Preferred Stock
issuable upon the exercise of the Rights, the Right Certificates
theretofore and thereafter issued may continue to express the
Purchase Price and the number of shares which were expressed in
the initial Right Certificates issued hereunder.
(m) Before taking any action that would cause an
adjustment reducing the Purchase Price below the then par value,
if any, of the shares of Common Stock or other securities and
below one one-hundredth of the then par value, if any, of the
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 shares of
such Preferred Stock, Common Stock or other securities at such
adjusted Purchase Price. If upon any exercise of the Rights, a
holder is to receive a combination of Common Stock and common
stock equivalents, a portion of the consideration paid upon such
exercise, equal to at least the then par value of a share of
Common Stock of the Company, shall be allocated as the payment
for each share of Common Stock of the Company so received.
(n) 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
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defer until the occurrence of such event the issuing to the
holder of any Right exercised after such record date the shares
of Preferred Stock and other capital stock or securities of the
Company, if any, issuable upon such exercise over and above the
shares 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 upon the
occurrence of the event requiring such adjustment.
(o) 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 a majority of the Board
of Directors shall determine to be advisable in order that any
(i) consolidation or subdivision of the Preferred Stock, (ii)
issuance wholly for cash of any Preferred Stock at less than the
then current market price, (iii) issuance wholly for cash of
Preferred Stock or securities which by their terms are
convertible into or exchangeable for Preferred Stock, (iv) stock
dividends or (v) issuance of rights, options or warrants referred
to hereinabove in this Section 11, hereafter made by the Company
to the holders of its Preferred Stock, shall not be taxable to
such stockholders.
(p) In the event that at any time after the date of
this Agreement and prior to the Distribution Date, the Company
shall (i) declare or pay any dividend on the Common Shares
payable in Common Shares or (ii) effect a subdivision,
combination or consolidation of the Common Shares (by
reclassification or otherwise than by payment of dividends in
Common Shares) into a greater or lesser number of Common Shares,
then in any such case (y) the number of one one-hundredths of a
Preferred Share purchasable after such event upon proper exercise
of each Right shall be determined by multiplying the number of
one one-hundredths of a Preferred Share so purchasable
immediately prior to such event by a fraction, the numerator of
which is the number of Common Shares outstanding immediately
before such event and the denominator of which is the number of
Common Shares outstanding immediately after such event, and (z)
each Common Share outstanding immediately after such event shall
have issued with respect to it that number of Rights which each
Common Share outstanding immediately prior to such event had
issued with respect to it. The adjustments provided for in this
Section 11(p) shall be made successively whenever such a dividend
is declared or paid or such a subdivision, combination or
consolidation is effected.
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(q) The Company covenants and agrees that it shall
not, at any time after the Distribution Date and so long as the
Rights have not been redeemed pursuant to Section 23 hereof or
exchanged pursuant to Section 24 hereof, (i) consolidate with,
(ii) merge with or into, or (iii) sell or transfer, in one or
more transactions, assets or earning power aggregating more than
50% of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to, any other Person, if 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.
(r) The Company covenants and agrees that, after the
Stock Acquisition Date, it will not, except as permitted by
Sections 23 and 24 hereof, take any action the purpose or effect
of which is to diminish substantially or otherwise eliminate the
benefits intended to be afforded by the Rights.
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares. Whenever an adjustment is made as provided in
Sections 11 or 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) include a brief summary thereof in a mailing
to each holder of a Right Certificate in accordance with Section
26 hereof, or prior to the Distribution Date, disclose a brief
summary in a filing under the Securities Exchange Act of 1934, as
amended. The Rights Agent shall be fully protected in relying on
any such certificate and on any adjustments therein contained.
Section 13. Consolidation, Merger or Sale or Transfer
of Assets or Earning Power.
(a) In the event that, directly or indirectly,
following the Distribution Date, (x) the Company shall
consolidate with, or merge with and into, any other Person,
(y) any Person shall consolidate with or merge with and into the
Company, and the Company shall be the continuing or surviving
corporation of such merger and, in connection with such merger,
all or part of the Common 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 or more transactions, assets or
earning power aggregating 50% or more of the assets or earning
power of the Company and its Subsidiaries (taken as a whole) to
any other Person other than to the Company or one or more of its
wholly-owned Subsidiaries, then, and in each such case, proper
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provision shall be made so that (i) each holder of a Right,
subject to Section 7(e) hereof, shall thereafter have the right
to receive, upon the exercise thereof at the then current
Purchase Price multiplied by the then number of one one-
hundredths of a share of Preferred Stock for which a Right is
then exercisable (or if a Section 11(b) 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(b) Event by the Purchase Price in effect immediately
prior to such first occurrence) in accordance with the terms of
this Agreement, in lieu of Preferred Stock, such number of shares
of freely tradeable Common Stock of the Principal Party (as
hereinafter defined), free and clear of liens, rights of call or
first refusal, encumbrances or other adverse claims, as shall be
equal to the result obtained by (A) multiplying the then current
Purchase Price by the number of one one-hundredths of a share of
Preferred Stock for which a Right is then exercisable (or if a
Section 11(b) 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(b)
Event by the Purchase Price in effect immediately prior to such
first occurrence), and dividing that product by (B) 50% of the
current market price per share of the Common Stock of such
Principal Party (determined in the manner described in Section
11(f) hereof) on the date of consummation of such consolidation,
merger, sale or transfer; (ii) the Principal Party shall
thereafter be liable for, and shall assume, by virtue of such
consolidation, merger, sale or transfer, all the obligations and
duties of the Company pursuant to this Agreement; (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, except for the provisions of 11(b), shall
apply to such Principal Party; and (iv) such Principal Party
shall take such steps (including, but not limited to, the
authorization and reservation of a sufficient number of shares of
its Common Stock to permit exercise of all outstanding Rights in
accordance with this Section 13(a)) in connection with such
consummation as may be necessary to assure that the provisions
hereof shall thereafter be applicable, as nearly as reasonably
may be, in relation to the shares of its Common Stock thereafter
deliverable upon the exercise of the Rights.
(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) hereof,
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,
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including the Company, that is the other party to the merger or
consolidation; and
(ii) in the case of any transaction described in
clause (z) of the first sentence of Section 13(a) hereof, the
Person that is the party receiving the greatest portion of the
assets or earning power transferred pursuant to such transaction
or transactions; provided, however, that in any case described in
clause (i) or (ii) in this Section 13(b), (x) if the Common Stock
of such Person is not at such time and has not been continuously
over the preceding 12-month period registered under Section 12 of
the Exchange Act, and such Person is a direct or indirect
Subsidiary or Affiliate of another Person, "Principal Party"
shall refer to such other Person; (y) in case such Person is a
Subsidiary, directly or indirectly, or Affiliate of more than one
Person, the Common Stocks of all 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
market value, and (z) in case such Person is owned, directly or
indirectly, by a joint venture formed by two or more Persons that
are not owned, directly or indirectly, by the same Person, the
rules set forth in (x) and (y) above shall apply to each of the
chains of ownership having an interest in such joint venture as
if such party were a "Subsidiary" of both or all of such joint
venturers and the Principal Parties in each such chain shall bear
the obligations set forth in this Section 13 in the same ratio as
their direct or indirect interests in such Person bear to the
total of such interests.
(c) The Company shall not consummate any such
consolidation, merger, sale or transfer unless prior thereto the
Company and each Principal Party and each other Person who may
become a Principal Party as a result of such consolidation,
merger, sale or transfer 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, sale or transfer of assets mentioned in
paragraph (a) of this Section 13, the Principal Party will:
(i) prepare and file a registration statement
under the Securities Act with respect to the Rights and the
securities purchasable upon exercise of the Rights on an
appropriate form, will use its best efforts to cause such
registration statement to become effective as soon as practicable
after such filing and will use its best efforts to cause such
registration statement to remain effective (with a prospectus at
all times meeting the requirements of the Securities Act) until
the Expiration Date;
(ii) use its best efforts to qualify or register
the Rights and the securities purchasable upon exercise of the
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Rights under the blue sky laws of such jurisdictions as may be
necessary or appropriate; and
(iii) 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(b) Event, the
Rights which have not theretofore been exercised shall thereafter
also become exercisable in the manner described in Section 13(a)
hereof.
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue
fractions of Rights or to distribute Right Certificates which
evidence fractional Rights. In lieu of such fractional Rights,
there shall be paid to the registered holders of the Right
Certificates with regard to which such fractional Rights would
otherwise be issuable, an amount in cash equal to the same
fraction of the current market value of a whole Right. For the
purposes of this Section 14(a), the current market value of a
whole Right shall be the closing price of the Rights for the
Trading Day immediately prior to the date on which such
fractional Rights would have been otherwise issuable. The
closing price for any day shall be the last sale price, regular
way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in
either case as reported in the principal consolidated transaction
reporting system with respect to securities listed or admitted to
trading on the New York Stock Exchange or, if the Rights are not
listed or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting
system with respect to securities listed on the principal
national securities exchange on which the Rights are listed or
admitted 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 a majority of the Board of Directors. 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 a
majority of the Board of Directors shall be used.
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(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). Fractions of
shares of Preferred Stock in integral multiples of one
one-hundredth of a share of Preferred Stock may, at the election
of the Company, be evidenced by depositary receipts, pursuant to
an appropriate agreement between the Company and a depositary
selected by it, provided that such agreement shall provide that
the holders of such depositary receipts shall have all the
rights, privileges and preferences to which they are entitled as
beneficial owners of the shares of Preferred Stock represented by
such depositary receipts. In lieu of fractional shares of
Preferred Stock that are not integral multiples of one
one-hundredth of a share of Preferred Stock, the Company may pay
to the registered holders of Right Certificates at the time such
Right Certificates are exercised as herein provided an amount in
cash equal to the same fraction of the current market value of
one one-hundredths 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(f)(ii) hereof) for the
Trading Day immediately prior to the date of such exercise.
(c) Following the occurrence of one of the
transactions or events specified in Section 11 hereof giving rise
to the right to receive common stock equivalents (other than
Preferred Stock) or other securities upon the exercise of a
Right, the Company shall not be required to issue fractions of
shares or units of such common stock equivalents or other
securities upon exercise of the Rights or to distribute
certificates which evidence fractional shares of such common
stock equivalents or other securities. In lieu of fractional
shares or units of such common stock equivalents or other
securities, the Company may pay to the registered holders of
Right Certificates at the time such Rights are exercised as
herein provided an amount in cash equal to the same fraction of
the current market value of a share or unit of such common stock
equivalent or other securities. For purposes of this Section
14(c), the current market value shall be determined in the manner
set forth in Section 11(f) hereof for the Trading Day immediately
prior to the date of such exercise and, if such common stock
equivalent is not traded, each such common stock equivalent shall
have the value of one one-hundredth of a share of Preferred
Stock.
(d) Except as otherwise expressly provided in this
Section 14, the holder of a Right by the acceptance of the Rights
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<PAGE>
expressly waives his right to receive any fractional Rights or
any fractional share upon exercise of Rights.
Section 15. Rights of Action. All rights of action in
respect of this Agreement, except for rights of action given to
the Rights Agent under Section 18 or Section 20 hereof, are
vested in the respective registered holders of the Right
Certificates (and, prior to the Distribution Date, the registered
holders of Common Stock); and any registered holder of any Right
Certificate (or, prior to the Distribution Date, of the Common
Stock), without the consent of the Rights Agent or of the holder
of any other Right Certificate (or, prior to the Distribution
Date, of the Common Stock), may, in his own behalf and for his
own benefit, enforce, and may institute and maintain any suit,
action or proceeding against the Company to enforce, or otherwise
act in respect of, his right to exercise the Rights evidenced by
such Right Certificate in the manner provided in such Right
Certificate and in this Agreement. Without limiting the
foregoing or any remedies available to the holders of Rights, it
is specifically acknowledged that the holders of Rights would not
have an adequate remedy at law for any breach of this Agreement
and will be entitled to specific performance of the obligations
under, and injunctive relief against actual or threatened
violations of, the obligations of any Person subject to this
Agreement. Holders of Rights shall be entitled to recover the
reasonable costs and expenses, including attorneys' fees,
incurred by them in any action to enforce the provisions of this
Agreement.
Section 16. Agreement of Right Holders. Every holder
of a Right by accepting the same consents and agrees with the
Company and the Rights Agent and with every other holder of a
Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of Common
Stock;
(b) after the Distribution Date, the Right
Certificates are transferable only on the registry books of the
Rights Agent if surrendered at the principal office of the Rights
Agent, duly endorsed or accompanied by a proper instrument of
transfer; and
(c) the Company and the Rights Agent may deem and
treat the person in whose name the Right Certificate (or, prior
to the Distribution Date, the associated Common Stock
Certificate) is registered as the absolute owner thereof and of
the Rights evidenced thereby (notwithstanding any notations of
ownership or writing on the Right Certificates or the associated
Common Stock Certificate made by anyone other than the Company or
the Rights Agent) for all purposes whatsoever, and neither the
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Company nor the Rights Agent shall be affected by any notice to
the contrary.
Section 17. Right Certificate Holder Not Deemed a
Stockholder. No holder, as such, of any Right Certificate shall
be entitled to vote, receive dividends or be deemed for any
purpose the holder of Preferred Stock, Common Stock or any other
securities of the Company which may at any time be issuable on
the exercise of the Rights represented thereby, nor shall
anything contained herein or in any Right Certificate be
construed to confer upon the holder of any Right Certificate, as
such, any of the rights of a stockholder of the Company or any
right to vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of
meetings or other actions affecting stockholders (except as
provided in Section 25 hereof), or to receive dividends or
subscription rights, or otherwise, until the Right or Rights
evidenced by such Right Certificate shall have been exercised in
accordance with the provisions hereof.
Section 18. Concerning the Rights Agent. The Company
agrees to pay to the Rights Agent reasonable compensation for all
services rendered by it hereunder and, from time to time, on
demand of the Rights Agent, its reasonable expenses and counsel
fees and other disbursements incurred in the administration and
execution of this Agreement and the exercise and performance of
its duties hereunder. The Company also agrees to indemnify the
Rights Agent for, and to hold it harmless against, any loss,
liability, or expense, incurred 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.
The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or
omitted by it in connection with its administration of this
Agreement in reliance upon any Right Certificate or certificate
for Preferred Stock, 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. 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
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<PAGE>
corporate trust business or stock transfer business of the
Rights Agent or any successor Rights Agent, shall be the
successor to the Rights Agent under this Agreement without the
execution or filing of any paper or any further act on the part
of any of the parties hereto, provided that such corporation
would be eligible for appointment as a successor Rights Agent
under the provisions of Section 21 hereof. In case at the time
such successor Rights Agent shall succeed to the agency created
by this Agreement, any of the Right Certificates shall have been
countersigned but not delivered, any such successor Rights Agent
may adopt the countersignature of the predecessor Rights Agent
and deliver such Right Certificates so countersigned; and in case
at that time any of the Right Certificates shall not have been
countersigned, any successor Rights Agent may countersign such
Right Certificates either in the name of the predecessor Rights
Agent or in the name of the successor Rights Agent; and in all
such cases such Right Certificates shall have the full force
provided in the Right Certificates and in this Agreement.
In case at any time the name of the Rights Agent shall
be changed and at such time any of the Right Certificates shall
have been countersigned but not delivered, the Rights Agent may
adopt the countersignature under its prior name and deliver Right
Certificates so countersigned; and in case at that time any of
the Right Certificates shall not have been countersigned, the
Rights Agent may countersign such Right Certificates either in
its prior name or in its changed name; and in all such cases such
Right Certificates shall have the full force provided in the
Right Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations imposed by this Agreement
upon the following terms and conditions, by all of which the
Company and the holders of Right Certificates, by their
acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel
(who may be legal counsel for the Company), and the opinion of
such counsel shall be full and complete authorization and
protection to the Rights Agent as to any action taken or omitted
by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under
this Agreement the Rights Agent shall deem it necessary or
desirable that any fact or matter be proved or established by the
Company prior to taking or suffering any action hereunder, such
fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by the Chairman of
the Board, the President or any Vice President and by the
Treasurer or any Assistant Treasurer or the Secretary or any
Assistant Secretary of the Company and delivered to the Rights
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<PAGE>
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 Right Certificates (except its
countersignature thereof) or be required to verify the same, but
all such statements and recitals are and shall be deemed to have
been made by the Company only.
(e) The Rights Agent shall not be under any
responsibility in respect of the validity of this Agreement or
the execution and delivery hereof (except the due execution
hereof by the Rights Agent) or in respect of the validity or
execution of any Right Certificate (except its countersignature
thereof); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement
or in any Right Certificate; nor shall it be responsible for any
adjustment required under the provisions of Sections 11 or 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 Right Certificates after
actual notice to the Rights Agent 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 Preferred Stock or other securities to be issued
pursuant to this Agreement or any Right Certificate or as to
whether any shares of Preferred Stock or other securities will,
when issued, be validly authorized and issued, fully paid and
nonassessable.
(f) The Company agrees that it will perform, 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
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suffered to be taken by it in good faith in accordance with
instructions of any such officer.
(h) The Rights Agent and any shareholder, 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 the
Rights Agent under this Agreement. Nothing herein shall preclude
the Rights Agent from acting in any other capacity for the
Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of
the rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or agents,
and the Rights Agent shall not be answerable or accountable for
any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any such
act, default, neglect or misconduct, provided reasonable care was
exercised in the selection and continued employment thereof.
(j) No provision of this Agreement shall require the
Rights Agent to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties
hereunder or in the exercise of its rights if there shall be
reasonable grounds for believing that repayment of such funds or
adequate indemnification against such risk or liability is not
reasonably assured to it.
(k) If, with respect to any Rights Certificate
surrendered to the Rights Agent for exercise or transfer, the
certificate attached to the form of assignment or form of
election to purchase, as the case may be, has either not been
completed or indicates an affirmative response to clause 1,
clause 2 and/or, in the case of the certificate attached to the
form of election to purchase, clause 3 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 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 Right Certificates by first-class mail. The
Company may remove the Rights Agent or any successor Rights Agent
upon 30 days' notice in writing, mailed to the Rights Agent or
successor Rights Agent, as the case may be, and to each transfer
agent of the Common Stock and Preferred Stock by registered or
certified mail, and to the holders of the Right Certificates by
first-class mail. If the Rights Agent shall resign or be removed
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or shall otherwise become incapable of acting, the Company shall
appoint a successor to the Rights Agent. If the Company shall
fail to make such appointment within a period of 30 days after
such removal or after it has been notified in writing of such
resignation or incapacity by the resigning or incapacitated
Rights Agent or by the holder of a Right Certificate (who shall,
with such notice, submit his Right Certificate for inspection by
the Company), then the registered holder of any Right Certificate
may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent. Any successor Rights Agent,
whether appointed by the Company or by such a court, shall be
(a) a corporation organized and doing business under the laws of
the United States or of any state, in good standing, having an
office in the States of New York or Missouri, which is authorized
under such laws to exercise corporate trust or stock transfer
powers and is subject to supervision or examination by federal or
state authority and which has at the time of its appointment as
Rights Agent a combined capital and surplus of at least
$25,000,000, or (b) an affiliate of a corporation described in
clause (a) of this sentence. 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 Preferred Stock, and mail a notice thereof in
writing to the registered holders of the Right Certificates.
Failure to give any notice provided for this Section 21, however,
or any defect therein, shall not affect the legality or validity
of the resignation or removal of the Rights Agent or the
appointment of the successor Rights Agent, as the case may be.
Section 22. Issuance of New Right Certificates.
Notwithstanding any of the provisions of this Agreement or of the
Rights to the contrary, the Company may, at its option, issue new
Right Certificates evidencing Rights in such form as may be
approved by a majority of the Board of Directors to reflect any
adjustment or change in the Purchase Price and the number or kind
or class of shares of stock or other securities or property
purchasable under the Right Certificates made in accordance with
the provisions of this Agreement.
Section 23. Redemption and Termination.
(a) A majority of 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 Business Day after the
Stock Acquisition Date or (ii) the Final Expiration Date, elect
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to redeem all but not less than all of the then outstanding
Rights at a redemption price of 1 Cent per Right, as 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").
Notwithstanding anything contained in this Agreement to the
contrary, the Rights shall not be exercisable after the first
occurrence of a Section 11(b) Event until such time as the
Company's right of redemption hereunder has expired.
(b) Immediately upon the action of a majority of the
Board of Directors electing to redeem the Rights, evidence of
which shall be promptly 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. The
Company shall promptly give public disclosure of any such
redemption; provided, however, that the failure to give, or any
defect in, any such disclosure shall not affect the validity of
such redemption. Within 10 days after the action of the Board of
Directors ordering the redemption of the Rights, the Company
shall give notice of such redemption to the holders of the then
outstanding Rights by mailing such notice to all such holders at
their last addresses as they appear upon the registry books of
the Rights Agent or, prior to the Distribution Date, on the
registry books of the Transfer Agent for the Common Stock. Any
notice which is mailed in the manner herein provided shall be
deemed given, whether or not the holder receives the notice.
Each such notice of redemption will state the method by which the
payment of the Redemption Price will be made.
(c) Neither the Company nor any of its Affiliates or
Associates may redeem, acquire or purchase for value any Rights
at any time in any manner other than that specifically set forth
in this Section 23, Section 24 hereof and other than in
connection with the purchase of Common Shares prior to the
Distribution Date.
Section 24. Exchange.
(a) The Board of Directors of the Company may, at its
option, at any time after any Person becomes an Acquiring Person,
exchange all or part of the then outstanding and exercisable
Rights (which shall not include Rights that have become void
pursuant to the provisions of Section 7(e) hereof) for Common
Stock at an exchange ratio of one share of Common Stock per
Right, appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof
(such exchange ratio being hereinafter referred to as the
"Exchange Ratio"). Notwithstanding the foregoing, the Board of
Directors shall not be empowered to effect such exchange at any
time after any Person (other than the Company, any Subsidiary of
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the Company, any employee benefit plan or compensation
arrangement of the Company or any such Subsidiary, or any entity
holding securities of the Company to the extent organized,
appointed or established by the Company or any such Subsidiary
for or pursuant to the terms of any such employee benefit plan or
compensation arrangement), together with all Affiliates and
Associates of such Person, becomes the Beneficial Owner of 50% or
more of the Voting Power of the Company.
(b) Immediately upon the action of the Board of
Directors of the Company ordering the exchange of any Rights
pursuant to subsection (a) of this Section 24 and without any
further action and without any notice, the right to exercise such
Rights shall terminate and the only right thereafter of a holder
of such Rights shall be to receive that number of shares of
Common Stock equal to the number of such Rights held by such
holder multiplied by the Exchange Ratio. The Company shall
promptly give public notice of any such exchange; provided,
however, that the failure to give, or any defect in, such notice
shall not affect the validity of such exchange. The Company
promptly shall mail a notice of any such exchange to all of the
holders of such Rights at their last addresses as they appear
upon the registry books of the Rights Agent. Any notice which is
mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. Each such notice
of exchange will state the method by which the exchange of Common
Stock for Rights will be effected and, in the event of any
partial exchange, the number of Rights which will be exchanged.
Any partial exchange shall be effected pro rata based on the
number of Rights (other than Rights which have become void
pursuant to the provisions of Section 7(e) hereof) held by each
holder of Rights.
(c) In any exchange pursuant to this Section 24, the
Company, at its option, may substitute Preferred Stock (or
equivalent preferred stock, as such term is defined in Section
11(d) hereof) for Common Stock exchangeable for Rights, at the
initial rate of one one-hundredth of a share of Preferred Stock
(or equivalent preferred stock) for each share of Common Stock,
as appropriately adjusted to reflect adjustments in the voting
rights of the Preferred Stock pursuant to the terms thereof, so
that the fraction of a share of Preferred Stock delivered in lieu
of each share of Common Stock shall have the same voting rights
as one share of Common Stock.
(d) In the event that there shall not be sufficient
shares of Common Stock or Preferred Stock (or equivalent
preferred stock) issued but not outstanding or authorized but
unissued to permit any exchange of Rights as contemplated in
accordance with this Section 24, the Company shall take all such
action as may be necessary to authorize additional shares of
- 34 -
<PAGE>
Common Stock or Preferred Stock (or equivalent preferred stock)
for issuance upon exchange of the Rights.
(e) The Company shall not be required to issue
fractions of Common Stock or to distribute certificates which
evidence fractional shares of Common Stock. In lieu of such
fractional shares of Common Stock, the Company shall pay to the
registered holders of the Right Certificates with regard to which
such fractional shares of Common Stock would otherwise be
issuable an amount in cash equal to the same fraction of the
current market value of a whole share of Common Stock. For the
purposes of this paragraph (e), the current market value of a
whole share of Common Stock shall be the closing price of a
share of Common Stock (as determined pursuant to the second
sentence of Section 11(f)(i) hereof) for the Trading Day
immediately prior to the date of exchange pursuant to this
Section 24.
Section 25. Notice of Proposed Actions. In case the
Company shall propose (a) to pay any dividend payable in stock of
any class to the holders of its Preferred Stock or to make any
other distribution to the holders of its Preferred Stock (other
than a regular periodic cash dividend out of earnings or retained
earnings of the Company), or (b) to offer to the holders of its
Preferred Stock rights or warrants to subscribe for or to
purchase any additional shares of Preferred Stock or shares of
stock of any other class or any other securities, rights or
options, or (c) to effect any reclassification of its Preferred
Stock (other than a reclassification involving only the
subdivision of outstanding shares of Preferred Stock), or (d) to
effect any consolidation or merger into or with, or to effect any
sale or other transfer (or to permit one or more of its
Subsidiaries to effect any sales or other transfer), in one or
more transactions, of 50% or more of the assets or earning power
of the Company and its Subsidiaries (taken as a whole) to, any
other Person, or (e) to effect the liquidation, dissolution or
winding up of the Company, or (f) to declare or pay any dividend
on the Common Stock payable in Common Stock or to effect a
subdivision, combination or consolidation of the Common Stock (by
reclassification or otherwise than by payment of dividends in
Common Stock), then, in each such case, the Company shall give to
each holder of a Right, in accordance with Section 26 hereof, a
notice of such proposed action, which shall specify the record
date for the purposes of such stock dividend, distribution of
rights or warrants, or the date on which such reclassification,
consolidation, merger, sale, transfer, liquidation, dissolution,
or winding up is to take place and the date of participation
therein by the holders of the Common Stock and/or Preferred
Stock, if any such date is to be fixed. Such notice shall be so
given in the case of any action covered by clauses (a) or (b)
above at least ten days prior to the record date for determining
holders of the Preferred Stock for purposes of such action, and
- 35 -
<PAGE>
in the case of any such other action, at least ten days prior to
the date of the taking of such proposed action or the date of
participation therein by the holders of Preferred Stock,
whichever shall be the earlier. The failure to give notice
required by this Section 25 or any defect therein shall not
affect the legality or validity of the action taken by the
Company or the vote upon any such action.
In case a Section 11(b) Event shall occur, then the
Company shall as soon as practicable thereafter give to each
holder of a Right Certificate, in accordance with Section 26
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(b) hereof.
Section 26. Notices. Notices or demands authorized by
this Agreement to be given or made by the Rights Agent or by the
holder of any Right Certificate to or on the Company shall be
sufficiently given or made if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing
with the Rights Agent) as follows:
McDonnell Douglas Corporation
Post Office Box 516
St. Louis, Missouri 63166-0516
Attention: Secretary
Subject to the provisions of Section 21 hereof, any notice or
demand authorized by this Agreement to be given or made by the
Company or by the holder of any Right Certificate to or on the
Rights Agent shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another
address is filed in writing with the Company) as follows:
First Chicago Trust Company of New York
Newport Office Tower
525 Washington Boulevard
Jersey City, New Jersey 07310
Attention: Tenders and Exchanges
Administration, 4th Floor
Notices or demands authorized by this Agreement to be given or
made by the Company or the Rights Agent to the holder of any
Right Certificate shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed to such holder at
the address of such holder as shown on the registry books of the
Company.
Section 27. Supplements and Amendments. The Company
may from time to time supplement or amend this Agreement without
the approval of any holders of Right Certificates in order to
cure any ambiguity, to correct or supplement any provision
- 36 -
<PAGE>
contained herein which may be defective or inconsistent with any
other provisions herein, or to make any other provisions or
amendments hereto which the Company may deem necessary or
desirable, any such supplement or amendment to be evidenced by a
writing signed by the Company and the Rights Agent; provided,
however, that from and after such time as any Person becomes an
Acquiring Person, this Agreement shall not be amended in any
manner which would adversely affect the interests of the holders
of Rights.
Section 28. Successors. All the covenants and
provisions of this Agreement by or for the benefit of the Company
or the Rights Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.
Section 29. Benefits of This Agreement. Nothing in
this Agreement shall be construed to give to any person or
corporation other than the Company, the Rights Agent and the
registered holders of the Right Certificates (and, prior to the
Distribution Date, the Common Stock) any legal or equitable
right, remedy or claim under this Agreement; but this Agreement
shall be for the sole and exclusive benefit of the Company, the
Rights Agent and the registered holders of the Right Certificates
(and, prior to the Distribution Date, the Common Stock).
Section 30. 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.
It is the intent of the parties hereto to enforce the remainder
of the terms, provisions, covenants and restrictions to the
maximum extent permitted by law.
Section 31. Governing Law. This Agreement and each
Right Certificate issued hereunder shall be deemed to be a
contract made under the laws of the State of Maryland and for all
purposes shall be governed by and construed in accordance with
the laws of such State applicable to contracts to be made and
performed entirely within such State.
Section 32. Counterparts. This Agreement may be
executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute but one and
the same instrument.
Section 33. Descriptive Headings. Descriptive
headings of the several Sections of this Agreement are inserted
for convenience only and shall not control or affect the meaning
or construction of any of the provisions hereof.
- 37 -
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, all as of the day and year first
above written.
Attest: MCDONNELL DOUGLAS CORPORATION
/s/ Arthur D. Jordan /s/ F. Mark Kuhlmann
By: ---------------------- By: --------------------------
Name: Arthur D. Jordan Name: F. Mark Kuhlmann
Title: Counsel and Assistant Title: Senior Vice President-
Secretary and General Counsel
Attest: FIRST CHICAGO TRUST COMPANY OF
NEW YORK
/s/ Jeffrey Cohen /s/ Joanne Gorostiola
By --------------------------- By ----------------------------
Name: Jeffrey Cohen Name: Joanne Gorostiola
Title: Assistant Vice President Title: Assistant Vice President
- 38 -
<PAGE>
Exhibit A
MCDONNELL DOUGLAS CORPORATION
FORM OF ARTICLES SUPPLEMENTARY
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
McDonnell Douglas Corporation, a Maryland corporation
having its principal office in the City of Baltimore, Maryland,
hereby certifies to the State Department of Assessments and Taxation
of Maryland that:
FIRST: The Board of Directors of the Corporation, at a
meeting duly convened and held on August 2, 1990, pursuant to
authority expressly vested in the Board of Directors by Articles
Seventh and Eighth of the Corporation's Articles of Restatement,
adopted a resolution reclassifying 1,000,000 unissued shares, par
value $1.00 per share, of the unclassified shares of Preferred Stock
of the Corporation, par value $1.00 per share, as Series A Junior
Participating Preferred Stock, par value $1.00 per share, by
setting, before the issuance of such shares, the preferences,
rights, voting powers, restrictions, qualifications, and terms and
conditions of redemption of and the dividends on the shares of
Series A Junior Participating Preferred Stock as hereinafter set
forth.
SECOND: A description of the said 1,000,000 shares so
reclassified by the Board of Directors, with the preferences,
rights, voting powers, restrictions, qualifications and terms and
conditions of redemption of and the dividends on such shares as set
by the Board of Directors of the Corporation is as follows:
Section 1. Designation and Amount.
There shall be a series of the Preferred Stock of the
Company which shall be designated as the "Series A Junior
Participating Preferred Stock," par value $1.00 per share, and the
number of shares constituting such series shall be one million
(1,000,000). Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, that no decrease
shall reduce the number of shares of Series A Junior Participating
Preferred Stock to a number less than that of the shares then
outstanding plus the number of shares issuable upon exercise of
outstanding rights, options or warrants or upon conversion of
outstanding securities issued by the Company.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of
any series of preferred stock of the Company ranking prior and
A-1
<PAGE>
superior to the Series A Junior Participating Preferred Stock with
respect to dividends, the holders of shares of Series A Junior
Participating Preferred Stock, in preference to the holders of
shares of Common Stock, par value $1.00 per share (the "Common
Stock"), of the Company and of any other junior stock, shall be
entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the [regular quarterly dividend payment
date] (each such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a
share of Series A Junior Participating Preferred Stock, in an amount
per share (rounded to the nearest cent) equal to the greater of (a)
$l.00 or (b) subject to the provision for adjustment hereinafter set
forth, 100 times the aggregate per share amount of all cash
dividends, and 100 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions, other than a
dividend payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock since the immediately
preceding Quarterly Dividend Payment Date or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of
any share or fraction of a share of Series A Junior Participating
Preferred Stock. In the event the Company shall at any time after
August 2, 1990 (the "Rights Declaration Date") declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each
such case the amount to which holders of shares of Series A Junior
Participating Preferred Stock were entitled immediately prior to
such event under clause (b) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction, the numerator of
which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately
prior to such event.
(B) The Company shall declare a dividend or distribution
on the Series A Preferred Stock as provided in paragraph (A) of this
Section immediately after it declares a dividend or distribution on
the Common Stock (other than a dividend payable in shares of Common
Stock); provided that, in the event no dividend or distribution
shall have been declared on the Common Stock during the period
between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $1.00 per share on
the Series A Junior Participating Preferred Stock shall nevertheless
be payable on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Junior Participating Preferred Stock
A-2
<PAGE>
from the Quarterly Dividend Payment Date next preceding the date of
issue of such shares, unless the date of issue of such shares is
prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue
from the date of issue of such shares, or unless the date of issue
is a Quarterly Dividend Payment Date or is a date after the record
date for the determination of holders of shares of Series A Junior
Participating Preferred Stock entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment Date, in either
of which events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall not bear interest. Dividends paid on the
shares of Series A Junior Participating Preferred Stock in an amount
less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding.
The Board of Directors may, in accordance with applicable law, fix a
record date for the determination of holders of shares of Series A
Junior Participating Preferred Stock entitled to receive payment of
a dividend or distribution declared thereon, which record date shall
be not more than such number of days prior to the date fixed for the
payment thereof as may be allowed by applicable law.
Section 3. Voting Rights.
The holders of shares of Series A Junior Participating
Preferred Stock shall have the following voting rights:
(A) Each share of Series A Junior Participating Preferred
Stock shall entitle the holder thereof to 100 votes on all matters
submitted to a vote of the stockholders of the Company.
(B) Except as otherwise provided herein, in the Company's
Articles of Restatement or by law, the holders of shares of Series A
Junior Participating Preferred Stock, the holders of shares of
Common Stock, and the holders of shares of any other capital stock
of the Company having general voting rights, shall vote together as
one class on all matters submitted to a vote of stockholders of the
Company.
(C) Except as otherwise set forth herein or in the
Company's Articles of Restatement, and except as otherwise provided
by law, holders of Series A Junior Participating Preferred Stock
shall have no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote with
holders of Common Stock as set forth herein) for taking any
corporate action.
Section 4. Certain Restrictions.
(A) Whenever dividends or distributions payable on the
Series A Junior Participating Preferred Stock as provided in
A-3
<PAGE>
Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on
shares of Series A Junior Participating Preferred Stock outstanding
shall have been paid in full, the Company shall not:
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for
consideration any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series A Junior Participating Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up)
with the Series A Junior Participating Preferred Stock, except
dividends paid ratably on the Series A Junior Participating
Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to
which the holders of all such shares are then entitled;
(iii) except as permitted in Section 4(A)(iv) below,
redeem or purchase or otherwise acquire for consideration shares
of any stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Junior
Participating Preferred Stock, provided that the Company may at
any time redeem, purchase or otherwise acquire shares of any
such parity stock in exchange for shares of any stock of the
Company ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A Junior
Participating Preferred Stock; and
(iv) purchase or otherwise acquire for consideration
any shares of Series A Junior Participating Preferred Stock, or
any shares of stock ranking on a parity with the Series A Junior
Participating Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined
by the Board of Directors) to all holders of such shares upon
such terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and
preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable
treatment among the respective series or classes.
(B) The Company shall not permit any subsidiary of the
Company to purchase or otherwise acquire for consideration any
shares of stock of the Company unless the Company could, under
paragraph (A) of this Section 4, purchase or otherwise acquire such
shares at such time and in such manner.
A-4
<PAGE>
Section 5. Reacquired Shares.
Any shares of Series A Junior Participating Preferred Stock
purchased or otherwise acquired by the Company in any manner
whatsoever shall be retired and cancelled promptly after the
acquisition thereof. The Company shall cause all such shares upon
their cancellation to be authorized but unissued shares of Preferred
Stock which may be reissued as part of a new series of Preferred
Stock, subject to the conditions and restrictions on issuance set
forth herein.
Section 6. Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation (voluntary or otherwise),
dissolution or winding up of the Company, no distribution shall be
made to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series A Junior Participating Preferred Stock unless, prior thereto,
the holders of shares of Series A Junior Participating Preferred
Stock shall have received $100.00 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or
not declared, to the date of such payment (the "Series A Liquidation
Preference"). Following the payment of the full amount of the
Series A Liquidation Preference, no additional distributions shall
be made to the holders of shares of Series A Junior Participating
Preferred Stock, unless, prior thereto, the holders of shares of
Common Stock shall have received an amount per share (the "Common
Adjustment") equal to the quotient obtained by dividing (i) the
Series A Liquidation Preference by (ii) 100 (as appropriately
adjusted as set forth in subparagraph C below to reflect such events
as stock dividends, and subdivisions, combinations and
consolidations with respect to the Common Stock) (such number in
clause (ii) being referred to as the "Adjustment Number").
Following the payment of the full amount of the Series A Liquidation
Preference and the Common Adjustment in respect of all outstanding
shares of Series A Junior Participating Preferred Stock and Common
Stock, respectively, holders of Series A Junior Participating
Preferred Stock and holders of shares of Common Stock shall receive
their ratable and proportionate share of the remaining assets to be
distributed in the ratio of the Adjustment Number to 1 with respect
to such Series A Junior Participating Preferred Stock and Common
Stock, on a per share basis, respectively.
(B) In the event there are not sufficient assets available
to permit payment in full of the Series A Liquidation Preference and
the liquidation preferences of all other series of preferred stock,
if any, which rank on a parity with the Series A Junior
Participating Preferred Stock, then such remaining assets shall be
distributed ratably to the holders of such parity shares in
proportion to their respective liquidation preferences. In the
event there are not sufficient assets available to permit payment in
A-5
<PAGE>
full of the Common Adjustment, then such remaining assets shall be
distributed ratably to the holders of Common Stock.
(C) In the event the Company shall at any time after the
Rights Declaration Date declare or pay any dividend on Common Stock
payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the Adjustment
Number in effect immediately prior to such event shall be adjusted
by multiplying such Adjustment Number by a fraction the numerator of
which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately
prior to such event.
Section 7. Consolidation, Merger, etc.
In case the Company shall enter into any consolidation,
merger, combination or other transaction in which the shares of
Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case
the shares of Series A Junior Participating Preferred Stock shall at
the same time be similarly exchanged or changed in an amount per
share (subject to the provision for adjustment hereinafter set
forth) equal to 100 times the aggregate amount of stock, securities,
cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or
exchanged. In the event the Company shall at any time after the
Rights Declaration Date declare or pay any dividend on Common Stock
payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the amount set
forth in the preceding sentence with respect to the exchange or
change of shares of Series A Junior Participating Preferred Stock
shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that are outstanding
immediately prior to such event.
Section 8. Redemption.
The shares of Series A Junior Participating Preferred Stock
shall not be redeemable.
A-6
<PAGE>
Section 9. Ranking.
The Series A Junior Participating Preferred Stock shall
rank junior to all other series of the Company's Preferred Stock as
to the payment of dividends and the distribution of assets, unless
the terms of any such series shall provide otherwise.
Section 10. Fractional Shares.
Series A Junior Participating Preferred Stock may be issued
in fractions of a share which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting
rights, receive dividends, participate in distributions and to have
the benefit of all other rights of holders of Series A Junior
Participating Preferred Stock.
IN WITNESS WHEREOF, McDonnell Douglas Corporation has
caused these presents to be signed in its name and on its behalf by
its Sr. Vice President and attested under the corporate seal of the
Corporation by its Corporate Counsel on this 2nd day of August,
1990.
WITNESS: MCDONNELL DOUGLAS CORPORATION
/s/ Deborah C. Grossman /s/ John T. Sant
- ----------------------- ------------------------------
Name: Deborah C. Grossman Name: John T. Sant
Title: Corporate Counsel Title: Senior Vice President,
General Counsel
THE UNDERSIGNED, John T. Sant of McDonnell Douglas
Corporation, who executed on behalf of the foregoing Articles
Supplementary of which this Certificate is made a part, hereby
acknowledges in the name and on behalf of said Corporation the
foregoing Articles Supplementary to be the corporate act of said
Corporation and hereby certifies that to the best of his knowledge,
information and belief, the matters and facts set forth therein with
respect to the authorization and approval thereof are true in all
material respects under the penalties of perjury this 2nd day of
August, 1990.
/s/ John T. Sant
---------------------------------
Name: John T. Sant
Title: Senior Vice President,
General Counsel
A-7
<PAGE>
Exhibit B
[Form of Right Certificate]
Certificate No. R-__________________________________ Rights
NOT EXERCISABLE AFTER THE EXPIRATION DATE.
AT THE OPTION OF THE COMPANY, THE RIGHTS ARE SUBJECT
TO REDEMPTION AT 1 CENT PER RIGHT OR EXCHANGE FOR
COMMON STOCK, UNDER THE CIRCUMSTANCES AND
ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.
[THE RIGHTS REPRESENTED BY THIS RIGHT CERTIFICATE
WERE ISSUED TO A PERSON WHO WAS AN ACQUIRING
PERSON OR AN AFFILIATE OR AN ASSOCIATE OF AN
ACQUIRING PERSON. THIS RIGHT CERTIFICATE AND
THE RIGHTS REPRESENTED HEREBY ARE VOID
IN THE CIRCUMSTANCES SPECIFIED IN SECTION
7(e) OF THE RIGHTS AGREEMENT.]*
Right Certificate
MCDONNELL DOUGLAS CORPORATION
This certifies that _______________________, or registered
assigns, is the registered owner of the number of Rights set
forth above, each of which entitles the owner thereof, subject to
the terms, provisions and conditions of the Rights Agreement
("Rights Agreement") originally dated as of August 2, 1990, as
amended and restated as of May 31, 1996, between McDonnell
Douglas Corporation, a Maryland corporation (the "Company"), and
First Chicago Trust Company of New York, a New York corporation
(the "Rights Agent"), to purchase from the Company at any time
after the Distribution Date (as such term is defined in the
Rights Agreement) and prior to 5:00 P.M. New York, New York time
on the Expiration Date (as such term is defined in the Rights
Agreement) at the shareholder services office of the Rights
Agent, or its successor as Rights Agent, one one-hundredth of a
fully paid, non-assessable share of the
- --------------------
*/ The portion of the legend in brackets shall be inserted
only if applicable.
B-1
<PAGE>
Series A Junior Participating Preferred Stock, par value $1.00
per share ("Preferred Stock"), of the Company, at a purchase
price of [$125.00] per one one-hundredth of a share (the
"Purchase Price") upon presentation and surrender of this Right
Certificate with the Form of Election to Purchase duly executed.
The number of Rights evidenced by this Right Certificate (and the
number of shares which may be purchased upon exercise of each
Right) and the Purchase Price set forth above, are the number and
Purchase Price as of August 2, 1990, based on the shares of
Preferred Stock of the Company as constituted at such date.
The Purchase Price and the number of shares of Preferred
Stock which may be purchased upon the exercise of each of the
Rights evidenced by this Right Certificate are subject to
modification and adjustment upon the happening of certain events
as provided in the Rights Agreement.
This Right Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Agreement
reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent, the Company and the holders of the
Right Certificates. Copies of the Rights Agreement are on file
at the Company and the above-mentioned office of the Rights Agent
and are also available upon written request to the Company.
This Right Certificate, with or without other Right
Certificates, upon surrender at the principal office of the
Rights Agent, may be exchanged for another Right Certificate or
Right Certificates of like tenor and date evidencing Rights
entitling the holder to purchase a like aggregate number of
shares of Preferred Stock as the Rights evidenced by the Right
Certificate or Right Certificates surrendered shall have entitled
such holder to purchase. If this Right Certificate shall be
exercised in part, the holder shall be entitled to receive, upon
surrender hereof, another Right Certificate or Right Certificates
for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate may be redeemed by the
Company at its option at a redemption price of 1 Cent per Right on or
prior to the tenth business day following the Stock Acquisition
Date (as defined in the Rights Agreement). In addition, subject
to the provisions of the Rights Agreement, the Rights evidenced
by this Certificate may be exchanged by the Company at its option
for one share of Common Stock following the Stock Acquisition
Date and prior to the time an Acquiring Person, as that term is
defined in the Rights Agreement, owns 50% or more of the Voting
Power, as that term is defined in the Rights Agreement, of the Company.
B-2
<PAGE>
No fractional shares of Preferred Stock will be issued
upon the exercise of any 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). In lieu of
fractions of a share, a cash payment will be made, as provided in
the Rights Agreement.
No holder of this Right Certificate shall be entitled to
vote or receive dividends or be deemed for any purpose the holder
of 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 shareholder of the Company or any right to vote for
the election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings
or other actions affecting shareholders (except as provided in
the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Rights evidenced by this Right
Certificate shall have been exercised as provided in the Rights
Agreement.
This Right Certificate shall not be valid or obligatory
for any purpose until it shall have been countersigned by the
Rights Agent.
WITNESS the facsimile signature of the proper officers
of the Company and its corporate seal. Dated as of , 19 .
Attest: MCDONNELL DOUGLAS CORPORATION
By _________________________ By ______________________________
Name: Name:
Title: Title:
Countersigned:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
By ___________________________
Authorized signature
B-3
<PAGE>
[Form of Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED ________________________________________
hereby sells, assigns and transfers unto
_____________________________________________________________________
(Please print name and address of transferee)
_______________________________________________________________________
this Right Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and
appoint __________________________ Attorney to transfer the within
Right Certificate on the books of the within-named Company, with
full power of substitution.
Dated: __________________, 19__
____________________________________
Signature
(Signature must conform in all respects
to name of holder as specified on the face
of this Right Certificate)
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a
registered national securities exchange, a member of the National
Association of Securities Dealers, Inc., or a commercial bank or
trust company having an office or correspondent in the United
States.
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<PAGE>
CERTIFICATE
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) this Right Certificate [ ] is [ ] is not being
sold, assigned and transferred by or on behalf of a Person who is
or was an Acquiring Person or an Affiliate or Associate of any
such Acquiring Person (as such terms are defined 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 Right Certificate from any Person who is, was or
subsequently became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated: __________________, 19 ______________________________________
Signature
(Signature must conform in all respects
to name of holder as specified on the face
of this Right Certificate)
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<PAGE>
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Right Certificate.)
To McDonnell Douglas Corporation:
The undersigned hereby irrevocably elects to exercise
_________________________________ Rights represented by this Right
Certificate to purchase the shares of Preferred Stock issuable
upon the exercise of such Rights and requests that certificates
for such shares be issued in the name of:
Name: __________________________________
Address:_________________________________
_________________________________
Social security
or taxpayer identification
number: _________________________________
If such number of Rights shall not be all the Rights evidenced by
this Right Certificate, a new Right Certificate for the balance
remaining of such Rights shall be registered in the name of and
delivered to:
Name: ____________________________________
Address: _________________________________
_________________________________
Social security
or taxpayer identification
number: ________________________________
Dated: __________________, 19__
___________________________________
Signature
(Signature must conform in all respects
to name of holder as specified on the face
of this Right Certificate)
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a
registered national securities exchange, a member of the National
Association of Securities Dealers, Inc., or a commercial bank or
trust company having an office or correspondent in the United
States.
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<PAGE>
CERTIFICATE
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) the Rights evidenced by this Right 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 any
such Acquiring Person (as such terms are defined pursuant to the
Rights Agreement);
(2) this Rights Certificate [ ] is [ ] is not being
sold, assigned and transferred by or on behalf of a Person who is
or was an Acquiring Person or an Affiliate or Associate of any
such Acquiring Person (as such terms are defined pursuant to the
Rights Agreement);
(3) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights evidenced
by this Right Certificate from any Person who is, was or became
an Acquiring Person or an Affiliate or Associate of an Acquiring
Person.
Dated:_____________, 19__ _______________________________________
Signature
(Signature must conform in all respects
to name of holder as specified on the face
of this Right Certificate)
NOTICE
The signature in the foregoing Forms of Assignment and
Election must conform to the name as written upon the face of
this Right Certificate in every particular, without alteration or
enlargement or any change whatsoever.
In the event the certification set forth above in the
form of Assignment or the form of Election to Purchase, as the
case may be, is not completed, the Company and the Rights Agent
will deem the beneficial owner of the Rights evidenced by this
Right Certificate to be an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement) and such
Assignment or Election to Purchase will not be honored.
B-7
<PAGE>
Exhibit C
MCDONNELL DOUGLAS CORPORATION
Summary of Preferred Stock
Purchase Rights
On August 2, 1990 the Board of Directors of McDonnell
Douglas Corporation (the "Company") declared a dividend
distribution of one Preferred Stock Purchase Right (the "Rights")
for each outstanding share of Common Stock, par value $1.00 per
share (the "Common Stock"), of the Company (other than shares
held in the Company's treasury). The dividend distribution was
payable to the shareholders of record at the close of business on
August 13, 1990 (the "Record Date") and certificates for Common
Stock outstanding as of the Record Date, as well as certificates
for Common Stock issued after the Record Date, evidence the
Rights. Except as set forth below, each Right, when exercisable,
entitles the registered holder to purchase from the Company one
one-hundredth of a share of preferred stock, classified as Series
A Junior Participating Preferred Stock, par value $1.00 per share
(the "Preferred Stock"), at a price of $125 per one one-hundredth
of a share (the "Purchase Price"), subject to adjustment. The
description and terms of the Rights are set forth in an Amended
and Restated Rights Agreement dated as of May 31, 1996 (the
"Rights Agreement") between the Company and First Chicago Trust
Company of New York as Rights Agent (the "Rights Agent").
Initially, the Rights will be attached to all Common
Stock certificates representing shares then outstanding, and no
separate Right certificates will be distributed. Until the
earlier of (i) ten business days following the first to occur of
(a) a public announcement that, without the prior written consent
of the Company, a person or group of affiliated or associated
persons, other than certain subsidiaries or employee benefit or
compensation plans of the Company (an "Acquiring Person") has
acquired, or obtained the right to acquire, 20% or more of the
voting power of all securities of the Company then outstanding
generally entitled to vote for the election of directors of the
Company ("Voting Power"), or (b) the date on which the Company
first has notice or otherwise determines that a person has become
an Acquiring Person (the "Stock Acquisition Date"), or (ii) ten
business days (or such later date as may be determined by the
Board of Directors, but in no event later than such time as any
person becomes an Acquiring Person) following the commencement of
a tender offer or exchange offer, without the prior written
consent of the Company, for 20% or more of the Voting Power of
the Company (the earlier of the dates in clause (i) or (ii) above
being called the "Distribution Date"), the Rights will be
evidenced, with respect to any of the Company's Common Stock
certificates outstanding as of and after the Record Date (other
than shares held in the Company's treasury), by such Common Stock
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<PAGE>
certificates. The Rights Agreement provides that, until the
Distribution Date, the Rights will be transferred with and only
with the Company's Common Stock. Until the Distribution Date (or
earlier redemption, exchange or expiration of the Rights), new
Common Stock certificates issued after the Record Date, upon
transfer, new issuance or issuance from the Company's treasury of
the Company's Common Stock, will contain a notation incorporating
the Rights Agreement by reference. Until the Distribution Date
(or earlier redemption, exchange or expiration of the Rights),
the surrender for transfer of any of the Company's Common Stock
certificates outstanding as of and after the Record Date will
also constitute the transfer of the Rights associated with the
Common Stock represented by such certificate. As soon as
practicable following the Distribution Date, separate
certificates evidencing the Rights ("Right Certificates") will be
mailed to holders of record of the Company's Common Stock as of
the close of business on the Distribution Date and such separate
certificates alone will then evidence the Rights.
The Rights are not exercisable until the Distribution
Date. The Rights will expire on December 31, 2004 unless earlier
redeemed or exchanged by the Company, as described below.
The Purchase Price payable, and the number of shares of
Preferred Stock or other securities or property issuable, upon
exercise of the Rights are subject to adjustment from time to
time to prevent dilution (i) in the event of a stock dividend on,
or a subdivision, combination or reclassification of the
Preferred Stock, (ii) upon the distribution to holders of
Preferred Stock of rights or warrants to subscribe for shares of
Preferred Stock or securities convertible into Preferred Stock at
less than the then current market price of the Preferred Stock,
or (iii) upon the distribution to holders of Preferred Stock of
evidences of indebtedness or assets (excluding regular periodic
cash dividends out of earnings or retained earnings or dividends
payable in Preferred Stock) or of convertible securities,
subscription rights or warrants (other than those referred to
above).
The number of outstanding Rights and the number of one
one-hundredths of a share of Preferred Stock issuable upon
exercise of each Right are also subject to adjustment in the
event of a stock split of the Common Stock payable in Common
Stock or a stock dividend on the Common Stock payable in Common
Stock or subdivisions, consolidations or combinations of the
Common Stock occurring, in any such case, prior to the
Distribution Date.
In the event that, following the Distribution Date, the
Company is acquired in a merger or other business combination
transaction where the Company is not the surviving corporation or
where the Common Stock is exchanged or changed or 50% or more of
the Company's assets or earning power is sold (in one transaction
or a series of transactions), proper provision shall be made so
that each holder of a Right shall thereafter have the right to
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<PAGE>
receive, upon the exercise of the Right and payment of the
Purchase Price, that number of shares of common stock of the
surviving or purchasing company (or, in certain cases, one of its
affiliates) which at the time of such transaction would have a
market value of two times the Purchase Price (such right being
called the "Merger Right").
In the event that any person shall become an Acquiring
Person ("Flip-in Event"), proper provision shall be made so that
each holder of a Right will thereafter have the right to receive
upon exercise that number of shares (or fractional shares) of
Common Stock (or, in certain cases, equivalent securities) having
a market value of two times the exercise price of the Right (such
right being called the "Subscription Right"). However, the
Rights will not become exercisable following a Flip-in Event as
described above until such time as the Rights are no longer
redeemable by the Company as described below.
Any Rights that are beneficially owned by an Acquiring
Person or an affiliate or an associate of an Acquiring Person
will become null and void upon the occurrence of any of the
events giving rise to the exercisability of the Subscription
Right or the Merger Right and any holder of such Rights will have
no right to exercise such Rights from and after the occurrence of
such an event insofar as they relate to the Subscription Right or
the Merger Right.
At any time after the acquisition by a person or group
of affiliated or associated persons of beneficial ownership of
20% or more of the Voting Power of the Company and prior to the
acquisition by such person or group of 50% or more of the Voting
Power of the Company, the Board of Directors of the Company may
exchange the Rights (other than Rights owned by such person or
group which have become void), in whole or in part, at an
exchange ratio of one share of Common Stock, or one one-hundredth
of a share of Preferred Stock (or of a share of a class or series
of the Company's preferred stock having equivalent rights,
preferences and privileges), per Right (subject to adjustment).
With certain exceptions, no adjustments in the Purchase
Price will be required until cumulative adjustments require an
adjustment of at least 1% in such Purchase Price. No fractional
shares will be issued (other than fractions which are integral
multiples of one one-hundredth of a share of Preferred Stock).
In lieu of fractional shares, an adjustment in cash will be made
based on the market price of the stock on the last trading date
prior to the date of exercise.
At any time until ten business days after the date a
person becomes an Acquiring Person, the Company may elect to
redeem the Rights in whole, but not in part, at a price of 1 Cent
per Right. Immediately upon the action of the Board of Directors
electing to redeem the Rights, the Company shall make announcement
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<PAGE>
thereof, and the right to exercise the Rights will terminate and
the only right of the holders of Rights will be to receive the
redemption price.
The Preferred Stock purchasable upon exercise of the
Rights will not be redeemable and will be junior to any other
series of preferred stock the Company may issue (unless otherwise
provided in the terms of such stock). Each share of Preferred
Stock will have a preferential dividend in an amount equal to the
greater of $1.00 per share or 100 times any dividend declared on
each share of Common Stock. In the event of liquidation, the
holders of Preferred Stock will receive a preferred liquidation
payment equal to the greater of $100.00 or 100 times the payment
made per each share of Common Stock. Each share of Preferred
Stock will have 100 votes, voting together with the shares of
Common Stock. In the event of any merger, consolidation or other
transaction in which shares of Common Stock are exchanged, each
share of Preferred Stock will be entitled to receive 100 times
the amount and type of consideration received per share of Common
Stock. The rights of the Preferred Stock as to dividends,
liquidation and voting, and in the event of mergers and
consolidations, are protected by customary anti-dilution
provisions. Fractional shares of Preferred Stock in integral
multiples of one one-hundredth of a share of Preferred Stock will
be issuable; however, the Company may elect to distribute
depositary receipts in lieu of such fractional shares. In lieu
of fractional shares other than fractions that are multiples of
one one-hundredth of a share, 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.
Because of the nature of the Preferred Stock's voting,
dividend and liquidation features, the value of the one
one-hundredth of a share of Preferred Stock purchasable upon
exercise of each Right should approximate the value of one share
of Common Stock.
The Board of Directors of the Company retains a broad
ability to amend or supplement the Rights Agreement without the
consent of the holders of the Rights; provided, however, that
from and after such time as any Person becomes an Acquiring
Person, the Rights Agreement shall not be amended in any manner
which would adversely affect the interests of the holders of
Rights.
Until a Right is exercised, the holder thereof, as such,
will have no rights as a shareholder of the Company, including,
without limitation, the right to vote or to receive dividends.
A copy of the Rights Agreement has been filed with the
Securities and Exchange Commission as an exhibit to a Current
Report on Form 8-K. 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.
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