SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTIONS 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) April 16,1998
MILLIPORE CORPORATION
(Exact name of registrant as Specified in its Charter)
Massachusetts
(State or Other Jurisdiction of Incorporation or
Organization)
0-1052 04-2170233
(Commission File Number) (I.R.S. Employer
Identification No.)
80 Ashby Road, Bedford, MA 01730
(Address of principal executive offices) (Zip Code)
(617) 275-9200
(Registrant's telephone number, including area code)
N/A
(Former Name or Former Address, if Changed Since Last Report)
<PAGE>
Item 5. Other Events.
On April 16, 1998 the Board of Directors Millipore
Corporation voted to amend and restate the Millipore
Shareholder Rights Plan to extend the term of the Rights
issued thereunder for an additional 10 years and to update
certain of its provisions. The Shareholder Rights Plan was
originally adopted in April of 1988 and was scheduled to
expire on April 27, 1998. The terms of the Rights as so
amended and restated are set forth in the Common Stock Rights
Agreement, dated as of April 15, 1988, as Amended and
Restated as of April 16, 1998, between the Company and
BankBoston N.A., as Rights Agent, a copy of which is filed
herewith as an exhibit and is hereby incorporated herein by
reference.
Item 7. Financial Statements and Exhibits.
The exhibits which are filed with this report are set forth in
the Exhibit Index which appears at page 3 of this report.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be
signed on its behalf by the undersigned thereunto duly
authorized.
MILLIPORE CORPORATION
Dated: April 30, 1998 By /s/ Jeffrey Rudin
Jeffrey Rudin, Vice President
<PAGE>
EXHIBIT INDEX
Exhibit
1 Common Stock Rights Agreement
("Rights Agreement") dated as of April
15, 1988, amended and restated as of
April 16, 1998, between the Company and
BankBoston, N.A., as Rights Agent.
2 Form of Common Stock Purchase
Right Certificate (attached as Exhibit
A to the Rights Agreement) [Pursuant to
the Rights agreement, printed Common
Stock Purchase Right Certificates will
not be mailed until the Distribution
Date (as that term is defined in the
Rights Agreement).
3 Summary of Common Stock Purchase
Rights (attached as Exhibit B to the
Rights Agreement).
<PAGE>
MILLIPORE CORPORATION
and
BANKBOSTON, N.A.
as Rights Agent
Common Stock Rights Agreement
Dated as of April 15, 1988
Amended and Restated as of April 16, 1998
<PAGE>
STOCK RIGHTS AGREEMENT
INDEX
SECTION 1. CERTAIN DEFINITIONS 2
SECTION 2. APPOINTMENT OF RIGHTS AGENT 6
SECTION 3. ISSUE OF RIGHT CERTIFICATES 7
SECTION 4. FORM OF RIGHT CERTIFICATES 9
SECTION 5. COUNTERSIGNATURE AND REGISTRATION 9
SECTION 6. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE
OF RIGHT CERTIFICATES; MUTILATED, DESTROYED,
LOST OR STOLEN RIGHT CERTIFICATES 10
SECTION 7. EXERCISE OF RIGHTS; PURCHASE PRICE;
EXPIRATIONDATE OF RIGHTS 11
SECTION 8. CANCELLATION AND DESTRUCTION OF RIGHT
CERTIFICATES 13
SECTION 9. RESERVATION AND AVAILABILITY OF SHARES OF
COMMON STOCK; OTHER COVENANTS 14
SECTION 10. COMMON STOCK RECORD DATE; ETC 15
SECTION 11. ANTIDILUTION ADJUSTMENTS 16
SECTION 12. CERTIFICATE OF ADJUSTMENTS 26
SECTION 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF
ASSETS OR EARNING POWER 26
SECTION 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES 28
SECTION 15. RIGHTS OF ACTION 29
<PAGE>
SECTION 16. AGREEMENT OF RIGHT HOLDERS 29
SECTION 17. RIGHT CERTIFICATE HOLDER NOT DEEMED A
STOCKHOLDER 30
SECTION 18. CONCERNING THE RIGHTS AGENT 30
SECTION 19. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF
RIGHTS AGENT 31
SECTION 20. DUTIES OF RIGHTS AGENT 32
SECTION 21. CHANGE OF RIGHTS AGENT. 34
SECTION 22. ISSUANCE OF NEW RIGHT CERTIFICATES 35
SECTION 23. REDEMPTION AND TERMINATION 35
SECTION 24. EXCHANGE 36
SECTION 25. NOTICE OF PROPOSED ACTIONS 37
SECTION 26. NOTICES 38
SECTION 27. SUPPLEMENTS AND AMENDMENTS 39
SECTION 28. SUCCESSORS 39
SECTION 29. DETERMINATIONS AND ACTIONS BY THE BOARD OF
DIRECTORS; ETC. 40
SECTION 30. BENEFITS OF THIS AGREEMENT 40
SECTION 31. GOVERNING LAW 40
SECTION 32. COUNTERPARTS 40
SECTION 33. DESCRIPTIVE HEADINGS 41
SECTION 34. SEVERABILITY 41
<PAGE>
AMENDED AND RESTATED
COMMON STOCK RIGHTS AGREEMENT
This Amended and Restated Common Stock Rights Agreement is
between Millipore Corporation, a Massachusetts corporation
(the "Company"), and BankBoston, N.A., a national banking
association (the "Rights Agent"), and amends and restates as
of April 16, 1998, in its entirety, the Common Stock Rights
Agreement dated as of April 15, 1988 (the "1988 Agreement")
between the Company and The First National Bank of Boston, a
national banking association, as Rights Agent.
W I T N E S S E T H
WHEREAS, on April 15, 1988, the Board of Directors of
the Company authorized the issuance of rights (collectively,
the "Rights", and individually a "Right") to purchase, on the
terms and subject to the provisions of the 1988 Agreement,
one share of the Company's Common Stock; and
WHEREAS, on April 15, 1988 the ("Declaration Date") the
Board of Directors of the Company authorized and declared a
dividend distribution of one Right for every share of Common
Stock of the Company outstanding at the close of business on
April 27, 1988 the "Dividend Record Date") and authorized the
issuance of, and agreed to issue, one Right (as such number
may be adjusted in accordance with Sections 11(i) or 11(n) of
the 1988 Agreement) for every share of Common Stock of the
Company (i) issued between the Dividend Record Date and the
Distribution Date and (ii) reserved for issuance as of the
Distribution Date and issued on or after the Distribution
Date and prior to the earliest of the occurrence of a Common
Stock Event, redemption of the Rights or the Expiration Date;
WHEREAS, the Board of Directors of the Company has
authorized and approved an amendment and restatement of the
1988 Agreement in order to extend the Expiration Date of the
Rights until April 30, 2008 and to make other changes and
provisions that they have determined are necessary or
desirable and do not adversely affect the interests of the
holders of the Rights;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the 1988 Agreement is
hereby amended and restated to read in its entirety as
follows:
<PAGE>
SECTION 1. CERTAIN DEFINITIONS.
For purposes of this Agreement, the following terms
shall have the meanings indicated:
(a) The term "Acquiring Person" shall mean any Person
who or which, together with all Affiliates of such Person,
shall be the Beneficial Owner of 20% or more of the
outstanding shares of Common Stock of the Company; provided,
however, that (i) none of the Company, any Wholly Owned
Subsidiary of the Company, or any employee benefit plan of
the Company or of any Wholly Owned Subsidiary of the Company,
or any trustee in respect thereof acting in such capacity, or
any Person organized, appointed or established by the Company
or a Wholly Owned Subsidiary of the Company pursuant to the
terms of any such employee benefit plan shall be an
"Acquiring Person" for any purpose of this Agreement, and
(ii) if the Company, upon the affirmative vote of two-thirds
of the Continuing Directors then in office, determines in
good faith that a Person who would otherwise be an "Acquiring
Person" has become such inadvertently (including, without
limitation, because (a) such Person was unaware that he, she
or it was the Beneficial Owner of a percentage of Common
Stock of the Company that would otherwise cause such Person
to be an "Acquiring Person" or (b) such Person was aware of
the extent of his, her or its Beneficial Ownership but had no
actual knowledge of the consequences of such Beneficial
Ownership under this Agreement) and without any intention of
changing or influencing the control, management or policies
of the Company or of engaging in any of the actions specified
in Item 4 of Schedule 13D under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and within 10
Business Days of being requested by the Company to advise it
regarding the same, certifies to the Company with respect to
the foregoing (provided that if the Person requested to so
certify fails to do so within 10 Business Days, then such
Person shall become an Acquiring Person on the day
immediately following the last day of such 10 Business Day
period), and if such Person as promptly as practicable
divested or divests himself, herself or itself of Beneficial
Ownership of a sufficient number of shares of Common Stock of
the Company so that such Person would no longer be an
"Acquiring Person", then such Person shall not be deemed to
be or to have become an "Acquiring Person" for any purpose of
this Agreement.
(b) The term "Affiliate", with respect to any Person,
shall mean any other Person who is, or would be deemed to be,
an "affiliate" or an "associate" of such Person within the
respective meanings ascribed to such terms in Rule 12b-2 of
the General Rules and Regulations under the Exchange Act, as
such Rule is in effect on the Declaration Date.
(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 has "beneficial ownership" of within
the meaning of Rule 13d-3 of the General Rules and
Regulations under the Exchange Act (or any
successor rule);
(ii) which such Person or any of such Person's
Affiliates has, directly or indirectly, (A) the
right to acquire (whether such right is
exercisable immediately or after the passage of
time) pursuant to any agreement, arrangement or
understanding (whether or not in writing) or upon
the exercise of conversion, exchange or other
rights (other than the Rights), warrants or
options, or otherwise; or (B) the right to vote or
dispose of, including pursuant to any agreement,
arrangement or understanding (whether or not in
writing); provided, however, that for purposes of
this Section 1(c) a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially own",
any security if such agreement, arrangement or
understanding to vote such security (1) arises
solely from a revocable proxy given in response to
a public proxy or consent solicitation made
pursuant to, and in accordance with, the
applicable proxy solicitation rules and
regulations promulgated under the Exchange Act, or
is made in connection with, or is to otherwise
participate in, a proxy or consent solicitation
made, or to be made, pursuant to, and in
accordance with, the applicable proxy solicitation
rules and regulations promulgated under the
Exchange Act, and (2) is not also then reportable
on Schedule 13D under the Exchange Act (or any
comparable or successor report); or
(iii) which are beneficially owned, directly or
indirectly, by any other Person or any Affiliate
of such Person with which such Person or any of
such Person's Affiliates has any agreement,
arrangement or understanding (whether or not in
writing), for the purpose of acquiring, holding,
voting (except pursuant to a revocable proxy or in
connection with a proxy or consent solicitation
described in the proviso to Section 1(c)(ii)(B)
hereof) or disposing of any securities of the
Company;
provided, however, that for purposes of this Section 1(c) a
Person shall not be deemed the "Beneficial Owner" of, or to
"beneficially own," (A) securities tendered pursuant to a
tender or exchange offer made by such Person or any of such
Persons' Affiliates until such tendered securities are
accepted for purchase or exchange, (B) securities issuable
upon exercise of Rights at any time prior to the occurrence
of a Common Stock Event, or (C) securities issuable upon
exercise of Rights which were held by a Person or its
Affiliates prior to the Distribution Date as long as such
Person is not responsible for the occurrence of the Common
Stock Event giving rise to the Distribution Date: and
provided, further, however, that nothing in this Section l(c)
shall cause a Person engaged in business as an underwriter of
securities to be the "Beneficial Owner" of, or to
"beneficially own," any securities acquired through such
person's participation in good faith in a firm commitment
underwriting until the expiration of 40 days after the date
of such acquisition.
(d) The term "Business Day" shall mean any day other than a
Saturday, Sunday, or a day on which banking institutions in
The Commonwealth of Massachusetts are authorized or obliged
by law or executive order to close.
(e) The term "close of business" on any day shall mean
5:00 P.M., Boston time, on such day; provided, however, that
if such day is not a Business Day it shall mean 5:00 P.M.,
Boston time, on the next succeeding Business Day.
(f) The term "Common Stock" shall mean the Common
Stock, $1.00 par value, of the Company, except that the term
"Common Stock" when used with respect to any Person other
than the Company shall mean the common stock (or other
capital stock or shares of beneficial interest of such
Person) with the greatest voting power or the equity
securities or other equity interests having the power to
control or direct the management and affairs of such Person,
or if such Person is a Subsidiary of another Person, the
Person who ultimately controls such first mentioned Person
and which has outstanding such Common Stock (or such other
capital stock, equity securities or interests).
(g) The term "Common Stock Event" shall mean the
occurrence of any event described in (i) Section 11(a)(ii)
hereof or (ii) clauses (a), (b) or (c) of the first sentence
of Section 13 hereof.
(h) The term "Continuing Director" shall mean (a) any
member of the Board of Directors of the Company at all times
when the Board of Directors of the Company is comprised of
more than one class of directors and the term of office of
the directors who are members of each such class is
staggered, whether pursuant to the terms of Mass. Gen. L. ch.
156B 50A, the articles of organization or by-laws of the
Company or otherwise ("Staggered"), or (b) at all times when
the Board of Directors of the Company is not Staggered, any
member of the Board of Directors of the Company while such
person is a member of the Board of Directors of the Company
who (i) is not an Acquiring Person or an Affiliate of an
Acquiring Person and (ii) either was (A) a member of the
Board of Directors of the Company on the date hereof or (B)
nominated for his or her initial term of office by a majority
of the Continuing Directors in office at the time of such
nomination.
(i) The term "Disqualified Transferee" shall mean any
Person who is a direct or indirect transferee of any Rights
from an Acquiring Person or an Affiliate of an Acquiring
Person and became such a transferee (x) after the occurrence
of a Common Stock Event or (y) prior to or concurrently with
the Acquiring Person becoming such and received such Rights
pursuant to a transfer (whether or not for value) (A) from
the Acquiring Person to holders of its Common Stock or other
equity securities or to any Person with whom the Acquiring
Person has any continuing agreement, arrangement or
understanding (whether or not in writing) regarding the
transferred Rights or (B) which a majority of the Continuing
Directors determine is part of a plan, arrangement or
understanding (whether or not in writing) which has as a
primary purpose or effect, the avoidance of Section 7(e)
hereof.
(j) The term "Distribution Date" shall mean the date
which is the later of (A) the earlier of (x) the 10th
Business Day following the Stock Acquisition Date or (y) the
10th Business Day following the Offer Commencement Date;
provided, however, that if such earlier date occurs prior to
the 10th Business Day preceding the Dividend Record Date, the
"Distribution Date" shall be the Dividend Record Date or (B)
such specified or unspecified date thereafter which is on or
after the Dividend Record Date, as may be determined by two-
thirds of the Continuing Directors then in office.
(k) The term "Offer Commencement Date" shall mean the
date of the commencement of, or the first public announcement
of the intent of any Person, other than the Company, a Wholly
Owned Subsidiary of the Company or any employee benefit plan
of the Company or of any Wholly Owned Subsidiary of the
Company or any Person organized, appointed or established by
the Company or a Wholly Owned Subsidiary pursuant to the
terms of any such plan, (including any statement of such
intention appearing in any publicly available document filed
with any governmental authority, other than documents made
publicly available as a result of subpoena or other legal
process) to commence a tender or exchange offer if upon
consummation thereof the Person and Affiliates thereof would
be the Beneficial Owner of 20% or more of the then
outstanding shares of Common Stock (including any such date
which is after the date of this Agreement and prior to the
issuance of the Rights).
(l) The term "Person" shall mean a company,
corporation, association, partnership, joint venture, trust,
organization, business, individual or government or any
governmental agency or political subdivision thereof.
(m) The term "Stock Acquisition Date" shall mean the
date of the first public announcement by the Company or an
Acquiring Person (or an Affiliate thereof) that an Acquiring
Person has become such (including the first date on which any
filing with any governmental authority disclosing that an
Acquiring Person has become such becomes available to the
public).
(n) The term "Subsidiary" shall mean any Person of
which the Company (or other specified parent) now or
hereafter shall at the time own directly, or indirectly
through a Subsidiary or Subsidiaries, at least a majority of
the outstanding capital stock (or other shares of beneficial
interest) entitled to vote generally, or holds directly, or
indirectly through a Subsidiary or Subsidiaries, at least a
majority of partnership or similar interests, or is a general
partner. The term "Wholly Owned Subsidiary" shall mean any
Subsidiary of which all of the outstanding capital stock (or
other shares of beneficial interest) entitled to vote
generally other than directors' qualifying shares, is owned
by the Company (or other specified Person) directly, or
indirectly through one or more Wholly Owned Subsidiaries.
(o) The following terms defined elsewhere in this
Agreement in the Sections set forth below shall have the
respective meanings therein defined:
Term Definition
"Act" Section 9(e)
"Closing Price" Section 11(d)
"Common Stock Equivalents" Section 11(a)(iii)
"Company" Preamble
"current market price" Section 11(d)
"Current Value" Section 11(a)(iii)
"Declaration Date" Recitals
"Dividend Record Date" Recitals
"Excess Amount" Section 11(a)(iii)
"Exchange Act" Section 1(a)
"Exchange Ratio" Section 24
"Expiration Date" Section 7
"Officers' Certificate" Section 20(b)
"Other Consideration" Section 6(a)
"Principal Office" Section 5
"Purchase Price" Section 7(b)
"Redemption Price" Section 23
"Right Certificate" Section 3(a)
"Rights" Recitals
"Rights Agent" Preamble; Section 21
"Substitution Period" Section 11(a)(iii)
"Summary of Rights" Section 3(b)
"Trading Day" Section 11(d)
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),
and the Rights Agent hereby accepts such appointment upon the
terms and conditions hereof. The Company may from time to
time appoint such Co-Rights Agents as it may deem necessary
or desirable, upon ten (10) days ' prior written notice to
the Rights Agent. The Rights Agent shall have no duty to
supervise, and in no event be liable for, the acts or
omissions of any such co-Rights Agent.
SECTION 3. ISSUE OF RIGHT CERTIFICATES.
(a) Until the Distribution Date, (i) the Rights will be
evidenced (subject to the provisions of Section 3(b) hereof)
by the certificates representing shares of the Common Stock
registered in the names of the holders of the Common Stock
(which certificates shall be deemed also to be certificates
for the associated Rights) and not by separate Right
Certificates and (ii) the Rights will be transferable only in
connection with the transfer of the associated shares of
Common Stock. As soon as practicable after the Distribution
Date, the Rights Agent will send, by first-class, insured,
postage prepaid mail, to each record holder of the Common
Stock as of the close of business on the Distribution Date,
at the address of such holder shown on the stock transfer
records of the Company, a right certificate, in substantially
the form of Exhibit A hereto (a "Right Certificate"),
evidencing that number of Rights to which such holder is
entitled in accordance with the provisions of this Agreement.
In the event that an adjustment in the number of Rights per
share of Common Stock has been made pursuant to
Sections 11(i) or 11(p) hereof, at the time of distribution
of the Right Certificates, the Company shall make the
necessary and appropriate rounding adjustments (in accordance
with Section 14(a) hereof) so that Right Certificates
representing only whole numbers of Rights are distributed and
cash is paid in lieu of any fractional Rights. As of and
after the Distribution Date, the Rights will be evidenced
solely by such Right Certificates. The Rights are
exercisable only in accordance with the provisions of
Section 7 hereof and are redeemable only in accordance with
Section 23 hereof.
(b) As soon as practicable after the date hereof the
Company will cause a copy of a Summary of Common Stock
Purchase Rights, in substantially the form attached hereto as
Exhibit B (the "Summary of Rights"), to be sent by first-
class, postage prepaid mail, to each record holder of the
Common Stock as of the close of business on the Dividend
Record Date, at the address of such holder shown on the stock
transfer records of the Company. With respect to
certificates for the Common Stock outstanding as of the date
hereof, until the Distribution Date, the Rights will be
evidenced by such certificates for the Common Stock and the
registered holders of the Common Stock shall also be the
registered holders of the associated Rights. Until the
Distribution Date (or the earlier redemption, expiration or
termination of the Rights), the surrender for transfer of any
of the certificates representing shares of the Common Stock
outstanding on the Dividend Record Date, with or without a
copy of the Summary of Rights, shall also constitute the
transfer of the Rights associated with the Common Stock
represented by such certificate.
(c) Subject to Subsection (d) below, Rights shall be
issued in respect of all shares of Common Stock issued
(whether originally issued or delivered from the Company's
treasury) after the Dividend Record Date but prior to the
earliest of (i) the Distribution Date, (ii) the Expiration
Date or (iii) the redemption of the Rights. Certificates
representing such shares of Common Stock and certificates
issued on transfer of such shares of Common Stock with or
without a copy of the Summary of Rights, prior to the
Distribution Date (or earlier expiration or redemption of the
Rights) shall be deemed also to be certificates for the
associated Rights, and shall bear the following legend (or a
legend substantially in the form thereof); provided, however,
that certificates issued before April 16, 1998 shall bear a
legend in the form set forth in Section 3(c) of the 1988
Agreement:
This certificate also evidences and entitles the holder
hereof to certain Rights as set forth in a Common Stock
Rights Agreement between the issuer and BankBoston,
N.A., as Rights Agent (the "Rights Agent"), dated as of
April 15, 1988, as amended and restated as of April 16,
1998 (as so amended and restated, and as may be further
amended and/or restated from time to time, the "Rights
Agreement"), the terms of which are hereby incorporated
herein by reference and a copy of which is on file at
the principal offices of the issuer and the Rights
Agent. Under certain circumstances, as set forth in the
Rights Agreement, such Rights will be evidenced by
separate certificates and will no longer be evidenced
by this certificate. The Rights Agent 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 set forth in the Rights Agreement, Rights
issued to, or held by any Person who is, was or becomes
an Acquiring Person or any Affiliate thereof (as each
such term is defined in the Rights Agreement), whether
currently held by or on behalf of such Person or by
certain subsequent holders, 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 registered holders of Common Stock shall also be the
registered holders of the associated Rights, 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 certificate.
(d) In addition, the Company agrees to issue one Right
(as such number may be adjusted in accordance with
Sections 11(i) or 11(p) hereof) in conjunction with the
issuance of any shares of Common Stock reserved for issuance
on the Distribution Date (other than shares reserved for
issuance upon exercise of the Rights) and issued (i) on or
after the Distribution Date and (ii) prior to the earliest of
(A) the occurrence of a Common Stock Event, (B) the
Expiration Date or (C) the redemption of the Rights (such
Rights to be issued to the Person to whom such shares of
Common Stock are issued).
SECTION 4. FORM OF RIGHT CERTIFICATES.
(a) The Right Certificates (and the form of assignment
and the form of exercise notice and certificate to be printed
on the reverse thereof) shall each be substantially in the
form set forth in Exhibit A hereto and may have such marks of
identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions
of this Agreement, or as may be required to comply with any
applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange
on which the Rights may from time to time be listed, or to
conform to usage. Subject to the provisions of Sections 11
and 22 hereof, the Right Certificates, whenever distributed,
shall be dated as of the Dividend Record Date (or, if the
shares pursuant to which the Rights are attached are issued
thereafter, such date of issuance), and on their face shall
entitle the holders thereof to purchase such number of shares
of Common Stock as shall be set forth therein at the Purchase
Price (as hereinafter defined), but the amount and type of
securities issuable upon the exercise of each Right and the
Purchase Price shall be subject to adjustment as provided
herein.
(b) Any Right Certificate issued pursuant to Sections 3(a)
or 22 hereof that represents Rights beneficially owned by (i)
any Acquiring Person or any Affiliate of an Acquiring Person
or (ii) any Disqualified Transferee, and any other Right
Certificate issued pursuant to Section 6 or 11 hereof upon
the transfer, exchange, replacement or adjustment of any such
Right Certificate shall contain (to the extent feasible) the
following legend:
The Rights represented by this Right Certificate are or
were beneficially owned by a Person who was or became an
Acquiring Person or an Affiliate of an Acquiring Person
(as each such term is defined in the Rights Agreement).
Accordingly, this Right Certificate and the Rights
represented hereby may become null and void in the
circumstances specified in Section 7(e) of the Rights
Agreement. The Rights Agent will mail to the registered
holder of this certificate a copy of the Rights
Agreement, as in effect on the date of mailing, without
charge upon written request.
SECTION 5. COUNTERSIGNATURE AND REGISTRATION.
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 thereof which shall be attested by the Clerk
or an Assistant Clerk of the Company, either manually or by
facsimile signature. The Right Certificates shall be
manually countersigned by the Rights Agent and shall not be
valid for any purpose unless so countersigned. In case any
officer of the Company who shall have signed any of the Right
Certificates shall cease to be such officer of the Company
before countersignature by the Rights Agent and issuance and
delivery by the Company, such Right Certificates,
nevertheless, may be countersigned by the Rights Agent,
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; and any Right Certificate
may be signed on behalf of the Company by any person who, at
the actual date of the execution of such Right Certificate,
shall be a proper officer of the Company to sign such Right
Certificate, although at the date of the execution of this
Rights Agreement any such person was not such an officer.
Following the Distribution Date, the Rights Agent will
keep or cause to be kept, at that office of the Rights Agent
at which it conducts its shareholder services affairs (its
"Principal Office"), books for registration and transfer of
the Right Certificates issued hereunder. Such books shall
show the names and addresses of the respective holders of the
Right Certificates, the number of Rights evidenced on its
face by each of the Right Certificates and the date of
countersignature thereof by the Rights Agent.
SECTION 6. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF
RIGHT CERTIFICATES; MUTILATED, DESTROYED, LOST
OR STOLEN RIGHT CERTIFICATES.
(a) Subject to the provisions of Sections 4(b), 7(e)
and 14 hereof, at any time after the close of business on the
Distribution Date, and at or prior to the earlier of the
close of business on the Expiration Date or the redemption of
the Rights, any Right Certificate or Certificates may be
transferred, split up, combined or exchanged for another
Right Certificate or Right Certificates, entitling the
registered holder to purchase a like number of shares of
Common Stock (or, following a Common Stock Event, Common
Stock and/or such other securities, cash or other assets as
shall be issuable in respect of the Rights in accordance with
the terms of this Agreement (such other securities, cash or
other assets being referred to herein as "Other
Consideration")) as the Right Certificate or Right
Certificates surrendered then entitled such holder (or former
holder in the case of a transfer) to purchase. Any
registered holder desiring to transfer, split up, combine or
exchange any 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, accompanied by a medallion
signature guarantee and such other documentation as the
Rights Agent may reasonably request. Neither the Rights
Agent nor the Company shall be obligated to take any action
whatsoever with respect to the transfer of any such
surrendered Right Certificate until the registered holder
shall have completed and signed the certificate contained in
the form of assignment on the reverse side of such Right
Certificate and shall have provided such additional evidence
of the identity of the Beneficial Owner (or former Beneficial
Owner) from whom the rights evidenced by such Right
Certificate are to be transferred (or the Beneficial Owner to
whom such Rights are to be transferred) or Affiliates thereof
as the Company shall reasonably request. Thereupon, subject
to Sections 4(b), 7(e) and 14 hereof, the Company shall
execute and the Rights Agent shall countersign and deliver to
the person entitled thereto a Right Certificate or Right
Certificates, as the case may be, as so requested. The
Company may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection
with any transfer, split up, combination or exchange of Right
Certificates which the Company is not required to pay in
accordance with Section 9(d) hereof.
(b) Upon receipt by the Company and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Right Certificate, and, in
case of loss, theft or destruction, the receipt of indemnity
or security 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,
accompanied by a medallion signature guarantee and such other
documentation as the Rights Agent may reasonably request the
Company will execute 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) Except as otherwise provided herein, the registered
holder of any Right Certificate may exercise the Rights
evidenced thereby in whole or in part at any time from and
after the Distribution Date and at or prior to the close of
business on April 30, 2008 (the "Expiration Date") (or the
earlier redemption of the Rights). At the Expiration Date
(or the earlier redemption of the Rights), all Rights will be
extinguished and all Right Certificates shall become null and
void. To exercise Rights, the registered holder of the Right
Certificate evidencing such Rights shall surrender such Right
Certificate, with the form of election to purchase on the
reverse side thereof duly executed, to the Rights Agent at
the Principal Office of the Rights Agent, accompanied by a
medallion signature guarantee and such other documentation as
the Rights Agent may reasonably request, together with
payment in cash, or by certified check or bank check, of the
Purchase Price with respect to the total number of shares of
Common Stock (or, after a Common Stock Event, Common Stock
and/or Other Consideration) as to which the Rights are
exercised (which payment shall include any additional amount
payable by such Person in accordance with Section 9(d)
hereof). The Rights Agent shall promptly deliver to the
Company all payments of the Purchase Price received in
respect of Right Certificates accepted for exercise.
(b) The purchase price for each share of Common Stock
issuable pursuant to the exercise of a Right (the "Purchase
Price") shall initially be $200, shall be subject to
adjustment as provided in Section 11 hereof and shall be
payable in lawful money of the United States of America.
(c) Upon receipt of a Right Certificate representing
the Rights, with the form of election to purchase set forth
on the reverse side thereof and the certificate contained
therein duly executed, accompanied by payment of the Purchase
Price with respect to each Right so exercised, the Rights
Agent, subject to Sections 7(e) and 7(g), Section 11(a)(iii)
and Section 20(k) hereof, shall thereupon promptly
(i) requisition from any transfer agent of the Common Stock
(or from the Company if there shall be no such transfer
agent, or make available if the Rights Agent is such transfer
agent) certificates for the total number of shares of Common
Stock to be purchased and the Company hereby irrevocably
authorizes such transfer agent to comply with any such
request, (ii) after receipt of such certificates, cause the
same to be delivered to or upon the order of the registered
holder of such Right Certificate, registered in such name or
names as may be designated in writing by such holder, and
(iii) when appropriate, requisition from the Company the
amount of cash to be paid in lieu of issuance of a fractional
share in accordance with Section 14 hereof and after receipt
promptly deliver such cash to or upon the order of the
registered holder of such Right Certificate. After the
occurrence of a Common Stock Event, the Company will make all
necessary arrangements so that any Other Consideration then
deliverable in respect of the Rights is available for
distribution by the Rights Agent. For purposes of this
Section 7, the Rights Agent shall be entitled to rely, and
shall be protected in relying, on an Officers' Certificate
from the Company to the effect that the Distribution Date has
occurred.
(d) Subject to Sections 4(b), 7(e) and 14 hereof, 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 executed and delivered by the
Company to the Rights Agent and countersigned and delivered
by the Rights Agent to the registered holder of such Right
Certificate or to his duly authorized assigns.
(e) Notwithstanding anything in this Agreement to the
contrary, from and after the first occurrence of a Common
Stock Event, any Rights beneficially owned by (i) an
Acquiring Person or an Affiliate of an Acquiring Person or
(ii) a Disqualified Transferee shall become null and void
without any further action, and no holder of such Rights
shall have any rights whatsoever with respect to such Rights,
whether under any provision of this Agreement or otherwise.
The Company shall use all reasonable efforts to ensure that
the provisions of this Section 7(e) and Section 4(b) hereof
are complied with, but shall have no liability to any holder
of Right Certificates or other Person, and none of the terms
of this Agreement or the Rights shall be deemed to be waived
with respect to such holder or other Person as a result of
(i) any failure to make any determinations with respect to an
Acquiring Person or its Affiliates or Disqualified
Transferees hereunder, (ii) any waiver or failure to waive
any of the provisions of this Agreement, or (iii) any failure
to have a legend placed on any Right Certificate in
accordance with Section 4(b) hereof or on any Common Stock
certificate in accordance with Section 3(c) 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 of any Right Certificate upon the
occurrence of any purported exercise thereof unless such
registered holder shall have (i) completed and signed the
certificate contained in the form of election to purchase set
forth on the reverse side of the Right Certificate
surrendered for such exercise and (ii) provided such
additional evidence of the identity of the Beneficial Owner
(or former Beneficial Owner) from whom the Rights evidenced
by such Right Certificate are to be transferred (or the
Beneficial Owner to whom such Rights are to be transferred)
or Affiliates thereof as the Company shall reasonably
request.
(g) Notwithstanding any other provision of this
Agreement, in the event that compliance with the Company's
Articles of Organization would prohibit the Company from
issuing shares or similar units of the Company's capital
stock or other securities to the holder of any Rights upon
exercise thereof, then, upon such holder's presentation of
the Right Certificates therefor to the Rights Agent, so long
as such Rights shall not have become null and void pursuant
to Section 7(e) hereof, Company, at its option, (i) may call
a meeting of stockholders to authorize same or (ii) to the
extent required by its Articles of Organization, in lieu of
issuing any such shares or similar units to such holder, the
Company at its option may (A) cause the Rights Agent to
deliver such Right Certificates to the Company, and the
Company shall sell, or cause to be sold, the Rights
represented thereby for the account of such holder and
promptly remit the net proceeds thereof to such holder or,
(B) provide fair value to such holder.
SECTION 8. CANCELLATION AND DESTRUCTION OF RIGHT
CERTIFICATES.
All Right Certificates surrendered for the purpose of
and accepted for exercise, or surrendered for the purpose of
redemption, transfer, split up, combination or exchange
shall, if surrendered to the Company or to any of its agents
(other than the Rights Agent), be delivered to the Rights
Agent for cancellation or in canceled form, or, if
surrendered to the Rights Agent, shall be canceled by it, and
no Right Certificates shall be issued in lieu thereof except
as expressly permitted by any of the provisions of this
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 Certificates purchased or
retired by the Company otherwise than upon the exercise
thereof. The Rights Agent shall deliver all canceled Right
Certificates to the Company, or shall, at the written request
of the Company, destroy such canceled Right Certificates, and
in such case shall deliver a certificate of destruction
thereof to the Company.
SECTION 9. RESERVATION AND AVAILABILITY OF SHARES OF COMMON
STOCK; OTHER COVENANTS.
(a) The Company covenants and agrees as long as any of
the Rights are outstanding, it will cause to be reserved and
kept available out of its authorized and unissued shares of
Common Stock (or, following the occurrence of a Common Stock
Event, out of its authorized and unissued shares of Common
Stock and/or other securities, or out of its authorized and
issued shares held in its treasury), the number of shares of
Common Stock (or, following a Common Stock Event, shares of
Common Stock and/or other securities) that, except as
provided in Section 11(a)(iii) hereof, would then be
sufficient to permit the exercise in full of all outstanding
Rights; provided, however, that the reservation of such
shares shall be subject and subordinate to any other
reservation of such shares made by the Company at any time
for any lawful purpose; provided, further, however, that in
no event shall such failure to so reserve shares affect the
rights of any holder of Rights hereunder.
(b) The Company covenants and agrees that on and after
the Distribution Date so long as the Common Stock (or,
following the occurrence of a Common Stock Event, shares of
Common Stock and/or other securities and/or Other
Consideration) issuable upon the exercise of Rights may be
listed on any national securities exchange, the Company shall
use its best efforts to cause all shares (or similar units)
reserved for such issuance to be listed on such exchange upon
official notice of issuance upon such exercise.
(c) The Company covenants and agrees that it will take
all such action as may be necessary to ensure that each share
of Common Stock (or, following a Common Stock Event, each
share and/or similar unit of Common Stock or Other
Consideration), delivered upon exercise of Rights shall, at
the time of delivery of the certificates for such shares (or
units), subject to payment of the Purchase Price, be duly and
validly authorized and issued and fully paid and
nonassessable.
(d) The Company covenants and agrees that it will pay
when due and payable any and all federal and state transfer
taxes and similar charges which may be payable in respect of
the issuance or delivery of the Right Certificates or of any
shares of Common Stock (or, following the occurrence of a
Common Stock Event, each share and/or similar units of Common
Stock or Other Consideration) upon the exercise of Rights;
provided, however, that the Company shall not 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 in the issuance or delivery of certificates
for any shares of Common Stock (or, following the occurrence
of a Common Stock Event, each share and/or similar units of
Common Stock or Other Consideration) in a name other than
that of the registered holder of the Right Certificate
evidencing Rights surrendered for exercise or to issue or
deliver any certificates for any shares of Common Stock (and,
following the occurrence of a Common Stock Event, all shares
and/or similar units of Common Stock or Other Consideration)
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.
(e) The Company shall use its best efforts to (i) file,
as soon as practicable following the earliest date after the
first occurrence of a Common Stock Event on which the
consideration to be delivered by the Company upon exercise of
the Rights has been determined in accordance with Section
11(a)(iii) hereof, or as soon as is required by law following
the Distribution Date, as the case may be, a registration
statement under the Securities Act of 1933 (the "Act"), with
respect to the securities issuable upon exercise of the
Rights on an appropriate form, (ii) cause such registration
statement to become effective as soon as practicable after
such filing and (iii) cause such registration statement to
remain effective (with a prospectus at all times meeting the
requirements of the Act) until the earlier of (A) the date as
of which the Rights are no longer exercisable for such
securities or (B) the Expiration Date or earlier redemption
of the Rights. The Company will also take such action as may
be appropriate under, or to ensure compliance with, the
securities or "blue sky" laws of the various states in
connection with the exercisability of the Rights. The
Company may temporarily suspend, for a period of time not to
exceed ninety (90) days after the date set forth in
clause (i) of the first sentence of this Section 9(e), the
exercisability of the Rights in order to prepare and file
such registration statement or to permit it to become
effective. Upon any such suspension, the Company shall issue
a public announcement stating that the exercisability of the
Rights has been temporarily suspended. The Company shall
thereafter issue a public announcement at such time as the
suspension is no longer in effect. Notwithstanding any
provision of this Agreement to the contrary, the Rights shall
not be exercisable in any jurisdiction unless the requisite
qualification in such jurisdiction shall have been obtained.
SECTION 10. COMMON STOCK RECORD DATE; ETC.
Each person in whose name any certificate for any shares
of Common Stock (or, following the occurrence of a Common
Stock Event, shares and/or similar units of Common Stock or
Other Consideration) is issued upon the exercise of Rights
shall for all purposes be deemed to have become the holder of
record of such shares of Common Stock (or such shares and
similar units of Common Stock and/or Other Consideration, as
the case may be) represented thereby, and such certificate
shall be dated the date which is the later of (i) the date
upon which the Right Certificate evidencing such Rights was
duly surrendered or (ii) the date upon which payment of the
Purchase Price (and any applicable transfer taxes) in respect
thereof was made; provided, however, that if such date is a
date upon which the relevant transfer books of the Company
are closed, such person shall be deemed to have become the
record holder of such shares (and/or such shares or similar
units of Common Stock or Other Consideration) on, and such
certificate shall be dated, the next succeeding Business Day
on which such transfer books of the Company are
open; provided, further, that the Company covenants and
agrees that it shall not close such transfer books for a
period exceeding ten consecutive days. Prior to the exercise
of the Rights evidenced thereby (which shall be deemed to
have occurred on the date such certificate shall be dated in
accordance with this Section 10), the holder of a Right
Certificate, as such, shall not be entitled to any rights of
a security holder of the Company with respect to the shares
of Common Stock (and/or such shares or similar units of
Common Stock or Other Consideration) for which the Rights
shall be exercisable, including, without limitation, the
right to vote, to receive dividends or other distributions or
to exercise any preemptive rights, and shall not be entitled
to receive any notice of any proceedings of the Company,
except as expressly provided herein.
SECTION 11. ANTIDILUTION ADJUSTMENTS.
The Purchase Price and the number and kind of securities
covered by each Right and the number of Rights outstanding
are subject to adjustment from time to time as provided in
this Section 11.
(a)(i) In the event that the Company shall at any time
after the date of this Agreement (A) declare and pay a
dividend on the Common Stock payable in shares of Common
Stock, (B) subdivide the outstanding Common Stock,
(C) combine the outstanding Common Stock into a smaller
number of shares or (D) issue, change or alter any shares of
its capital stock in a reclassification or recapitalization
(including any such reclassification in connection with a
consolidation or merger in which the Company is the
continuing or surviving corporation), except as otherwise
provided in this Section 11(a) and 7(e) hereof, then, and in
each such case, the Purchase Price in effect at the time of
the record date for such dividend or the effective time of
such subdivision, combination, reclassification or
recapitalization, and the number and kind of shares of
capital stock issuable at such time, shall be proportionately
adjusted so that the holder of any Right exercised after such
time shall be entitled to receive the aggregate number and
kind of shares of Common Stock or other capital stock which,
if such Right had been exercised immediately prior to such
time and at a time when the Common Stock transfer books of
the Company were open, such holder would have owned upon such
exercise and been entitled to receive by virtue of such
dividend, subdivision, combination, reclassification or
recapitalization. If an event occurs which would require an
adjustment under both this Section 11(a)(i) and
Section 11(a)(ii) hereof, the adjustment provided in this
Section 11(a)(i) shall be in addition to, and shall be made
prior to, any adjustment required pursuant to
Section 11(a)(ii).
(ii) In the event
(A) any Person shall at any time after the
Declaration Date become an Acquiring Person; or
(B) any Acquiring Person or any Affiliate of
any Acquiring Person, at any time after the date
of this Agreement, directly or indirectly, shall
(1) merge into the Company or otherwise combine
with the Company, and the Company shall be the
continuing or surviving corporation of such merger
or combination and the Common Stock of the Company
shall remain outstanding and unchanged, (2) in one
or more transactions, transfer any assets to the
Company in exchange (in whole or in part) for
shares of any class of its equity securities or
for securities exercisable for or convertible into
shares of any such class or otherwise obtain from
the Company, with or without consideration, any
additional shares of any such class or securities
exercisable for or convertible into shares of any
such class (other than as part of a pro rata
distribution to all holders of such class), (3)
sell, purchase, lease, exchange, mortgage, pledge,
transfer or otherwise dispose (in one transaction
or a series of transactions), to, from or with the
Company or any of the Company's Subsidiaries,
assets on terms and conditions less favorable to
the Company than the Company would be able to
obtain through arm's-length negotiation with an
unaffiliated third party, (4) engage in any
transaction with the Company not in the ordinary
course of the Company's business involving the
sale, purchase, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction
or a series of transactions) of assets having an
aggregate fair market value of more than
$1,000,000, (5) receive any compensation from the
Company or any of the Company's Subsidiaries other
than compensation as a director of the Company or
for full-time employment as a regular employee at
rates in accordance with the Company's (or such
Subsidiary's) past practices, (6) receive the
benefit (except proportionately as a stockholder),
of any loans, advances, guarantees, pledges or
other financial assistance or any tax credits or
other tax advantage provided by the Company or any
of its Subsidiaries or (7) commence a tender or
exchange offer for securities of the Company; or
(C) during such time as there is an Acquiring
Person, there shall be any reclassification of
securities (including any combination thereof), or
recapitalization of the Company, or any merger or
consolidation of the Company with any of its
Subsidiaries, or any repurchase by the Company or
any of its Subsidiaries of shares of Common Stock
of the Company, or any other class or series of
securities issued by the Company, or any other
transaction or series of transactions involving
the Company which reclassification,
recapitalization, merger or consolidation,
repurchase or other transaction or series of
transactions is not effected with the approval of
a majority of the Continuing Directors then in
office (whether or not with or into or otherwise
involving an Acquiring Person or any Affiliate of
an Acquiring Person), which has the effect,
directly or indirectly, of increasing by more than
1% the proportionate share of the outstanding
shares of any class of equity securities or
securities exercisable for or convertible into any
class of equity securities of the Company or any
of its Subsidiaries which is directly or
indirectly owned by any Acquiring Person or any
Affiliate of an Acquiring Person; or
(D) during such time as there is an Acquiring
Person, (1) there shall be any reduction in the
annual rate of dividends paid on shares of Common
Stock which is not effected with the approval of a
majority of the Continuing Directors then in
office (except as necessary to reflect any
subdivision of the shares of Common Stock or as
required under the laws of the Company's
jurisdiction of incorporation), or (2) there shall
be a failure to increase the annual rate of
dividends as necessary to reflect any
reclassification (including any reverse stock
split), recapitalization, reorganization or any
similar transaction which has the effect of
reducing the number of outstanding shares of
Common Stock which is not effected with the
approval of a majority of the Continuing Directors
then in office (except to the extent such increase
in rate of dividends would be prohibited under the
laws of the Company's jurisdiction of
incorporation),
then, and in each such case, upon the close of business
15 Business Days after the occurrence of such event,
proper provision shall be made so that each holder of a
Right, except as provided in Section 7(e) and Section
7(g) hereof, shall thereafter have the right to receive,
upon exercise thereof at the Purchase Price in effect at
the time of exercise in accordance with the terms of
this Agreement, such number of shares of Common Stock of
the Company as shall equal the result obtained by (x)
multiplying an amount equal to the then current Purchase
Price by an amount equal to the number of shares of
Common Stock for which a Right was or would have been
exercisable immediately prior to the first occurrence of
any such event whether or not such Right was then
exercisable, and dividing that product by (y) 50% of the
current market price per share of the Common Stock of
the Company (as defined in Section 11(d) hereof)
determined as of the date of such first occurrence.
(iii) In lieu of issuing whole or fractional
shares of Common Stock in accordance with
Section 11(a)(ii) hereof, the Company shall (i) in the
event that the number of shares of Common Stock which
are authorized by the Company's charter but not
outstanding or reserved for issuance for purposes other
than upon exercise of the Rights are not sufficient to
permit the exercise in full of the Rights in accordance
with Section 11(a)(ii) hereof, or (ii) if two-thirds of
the Continuing Directors determine that it would be
appropriate and not contrary to the interests of the
holders of Rights (other than any Acquiring Person or
Disqualified Transferee or any Affiliate of the
Acquiring Person or Disqualified Transferee)
(A) determine an amount, if any (the "Excess Amount"),
equal to the excess of (1) the value (the "Current
Value") of the whole or fractional shares of Common
Stock issuable upon the exercise of a Right in
accordance with Section 11(a)(ii) hereof, over (2) the
Purchase Price and (B) with respect to each Right, make
adequate provision to substitute for such shares of
Common Stock, upon payment of the applicable Purchase
Price, (1) cash, (2) a reduction in the Purchase Price,
(3) Common Stock or other equity securities of the
Company (including, without limitation, shares or units
of preferred stock which the Board of Directors of the
Company has deemed in good faith to have the same value
as a share of Common Stock (such shares of preferred
stock are hereinafter referred to as "Common Stock
Equivalents")), (4) debt securities of the Company,
(5) other assets or (6) any combination of the foregoing
(which would include the additional consideration
provided to any holder by reducing the Purchase Price)
having an aggregate value equal to the Current Value,
where such aggregate value has been determined by the
Board of Directors of the Company; provided, however,
subject to the provisions of Section 9(e), that if the
Company shall not have made adequate provision to
deliver value pursuant to clause (B) above within 30
days following the close of business 15 Business Days
after the first occurrence of a Common Stock Event
described in Section 11(a)(ii) hereof, then the Company
shall be obligated to deliver, upon the surrender for
exercise of a Right and without requiring payment of the
Purchase Price, whole or fractional shares of Common
Stock (to the extent available) and then, if necessary,
cash, securities and/or assets which in the aggregate
are equal to the Excess Amount. If the Board of
Directors of the Company shall determine in good faith
that it is likely that sufficient additional shares of
Common Stock or Common Stock Equivalents could be
authorized for issuance upon exercise in full of the
Rights, the 30-day period set forth above may be
extended to the extent necessary, but not more than 90
days following the close of business 15 Business Days
after the first occurrence of such a Common Stock Event
(such 30-day period, as it may be extended to 90 days,
is referred to herein as the "Substitution Period"). To
the extent that the Company determines that some action
is to be taken pursuant to the preceding provisions of
this Section 11(a)(iii), the Company (x) shall provide,
subject to Sections 7(e) and 7(g) hereof, that (except
as to the form of consideration which shall be
determined as appropriate by two-thirds of the
Continuing Directors) such action shall apply uniformly
to all outstanding Rights which shall not have become
null and void and (y) may suspend the exercisability of
the Rights until the expiration of the Substitution
Period in order to seek any authorization of additional
shares and/or to decide the appropriate form of
distribution to be made pursuant to such provisions 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 Company
shall thereafter issue a public announcement at such
time as the suspension is no longer in effect. For
purposes of this Section 11(a)(iii), the value of the
Common Stock issuable upon exercise of a Right in
accordance with Section 7(c) hereof shall be the current
market price per share of the Common Stock (as
determined pursuant to Section 11(d) hereof) on the
close of business 15 Business Days after the date of the
first occurrence of such a Common Stock Event and the
value of any Common Stock Equivalent shall be deemed to
be equal to the current market price per share of the
Common Stock on such date.
(iv) At any time prior to the Expiration Date, by
the vote of two-thirds of the Continuing Directors, the
Company may amend or supplement this Agreement to add
any and all necessary and appropriate provisions in
order that each holder of a Right would thereafter have
the right to receive, upon exercise thereof at the
Purchase Price in effect at the time of exercise, the
shares of Common Stock or Other Consideration
contemplated by this Section 11 in the event that any
Person, alone or together with its Affiliates, shall
become the Beneficial Owner of more than a specified
percentage of the outstanding shares of Common Stock of
the Company or shall meet such other conditions, as are
determined by the Continuing Directors and are stated in
such amendment or supplement.
(b) In the event the Company shall after the Dividend
Record Date fix a record date for the issuance of any
options, warrants or other rights to all holders of Common
Stock entitling them (for a period expiring within 45
calendar days after such record date) to subscribe for or
purchase (i) Common Stock, (ii) Common Stock Equivalents or
(iii) securities convertible into Common Stock or Common
Stock Equivalents at a price per share of Common Stock or
Common Stock Equivalents (or having a conversion price per
share of Common Stock or Common Stock Equivalents, if a
security is convertible into Common Stock or Common Stock
Equivalents) less than the current market price per share of
Common Stock (determined in accordance with Section 11(d)
hereof) determined as of such record date, the Purchase Price
to be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to
such record date by a fraction, the numerator of which shall
be the number of shares of Common Stock outstanding on such
record date plus the number of shares of Common Stock and/or
Common Stock Equivalents which the aggregate minimum offering
price of the total number of shares of Common Stock and/or
Common Stock Equivalents to be offered (and/or the aggregate
minimum conversion price of such 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
Common Stock and/or Common Stock Equivalents outstanding on
such record date plus the maximum number of additional shares
of Common Stock to be offered for subscription or purchase
(or the maximum number of shares into which such convertible
securities so to be offered are convertible). In case such
subscription price may be paid by delivery of consideration
part or all of which shall be in a form other than cash, for
purposes of this Section 11(b) the value of such
consideration shall be the fair market value thereof as
determined in good faith by the Board of Directors of the
Company (which determination shall be described in an
Officers' Certificate filed with the Rights Agent). Shares
of Common 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 (subject, however, to such other adjustments as
are provided herein).
(c) In the event that the Company shall after the
Dividend Record Date fix a record date for the making of a
distribution to all holders of Common Stock (including any
such distribution made in connection with a consolidation or
merger in which the Company is the surviving or continuing
corporation) of evidences of indebtedness, cash (other than
cash dividends paid out of the earnings or retained earnings
of the Company), other property (other than a dividend
payable in shares of Common Stock, but including any dividend
payable in stock other than Common Stock) or subscription
rights or warrants (excluding those referred to in Section
11(b) hereof), the Purchase Price to be in effect after such
record date shall be determined by multiplying the Purchase
Price in effect immediately prior to such record date by a
fraction, of which the numerator shall be the current market
price per share of Common Stock (as defined in Section 11(d)
hereof) determined as of such record date, less the fair
market value, as determined in good faith by the Board of
Directors of the Company (which determination shall be
described in an Officers' Certificate filed with the Rights
Agent) of that portion of such evidences of indebtedness,
such other property and/or such subscription rights or
warrants applicable to one share of Common Stock and of which
the denominator shall be such current market price per share
of the Common Stock. Such adjustments shall be made
successively whenever such a record date is fixed; and in the
event 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
(subject, however, to such other adjustments as are provided
herein).
(d) Except as otherwise provided to the contrary in
this Agreement, for the purpose of any computation hereunder,
the "current market price" per share (or unit) of any
security on any date shall be deemed to be the average of the
daily Closing Price of such security for the 20 consecutive
Trading Days 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
(i) a dividend or distribution on such security payable in
shares (or units) of such security or securities convertible
into shares (or units) of such security or (ii) any
subdivision, combination or reclassification of such
security, and prior to the expiration of 20 Trading Days
after (A) the ex-dividend date for such dividend or
distribution, or (B) the record date for such subdivision,
combination or reclassification, as the case may be, then,
and in each such case, the "current market price" shall be
the Closing Price of such security on the last day of such 20
Trading Day period. The term "Trading Day" shall mean a day
on which the principal national securities exchange on which
such security is listed or admitted to trading is open for
the transaction of business or, if such security is not
listed or admitted to trading on any national securities
exchange, a day which is a Business Day. For purposes of
this Agreement, the "Closing Price" of any security on any
day shall be the last sale price, regular way, with respect
to shares (or units) of such security, or, in case no such
sale takes place on such day, the average of the closing bid
and asked prices, regular way, with respect to such security,
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 such 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 such security is listed or admitted to
trading; or, if such security is not so listed or admitted to
trading, the last quoted price with respect to shares (or
units) of such security, or, if not so quoted, as the average
of the high bid and low asked prices in the over-the-counter
market with respect to shares (or units) of such security, as
reported by the National Association of Securities Dealers,
Inc. Automated Quotation System or such other similar system
then in use; or, if on any such date such security is not
quoted by any such organization, the average of the closing
bid and asked prices with respect to shares (or units) of
such security, as furnished by a professional market maker
making a market in such security selected by the Board of
Directors of the Company in good faith; or, if no such market
maker is available, the fair market value of shares (or
units) of such security as of such day as determined in good
faith by the Board of Directors of the Company (which
determination shall be described in an Officers' Certificate
filed with the Rights Agent).
(e) No adjustment in the Purchase Price shall be
required unless adjustment would require an increase or
decrease of at least 1% in such price; provided, however,
that any adjustments which by reason of this Section 11(e)
are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All
calculations under this Section 11 shall be made to the
nearest cent or to the nearest ten-thousandth of a share (or
similar unit) of Common Stock or securities. Notwithstanding
the first sentence of this Section 11(e), any adjustment
required by this Section 11 hereof shall be made no later
than the earlier of (i) three years from the date of the
transaction which mandates the adjustment or (ii) the date of
the expiration of the right to exercise the Rights. Anything
in this Section 11 to the contrary notwithstanding, the
Company, upon the affirmative vote of two-thirds of the
Continuing Directors then in office, shall be entitled to
make such reductions in the Purchase Price, in addition to
those required by this Section 11, as it in its discretion
shall determine to be advisable in order that any dividends,
subdivision of shares, distribution of rights to purchase
shares of beneficial interest or other stock or securities,
or distribution of securities convertible into or
exchangeable for stock hereafter made by the Company to its
stockholders shall not be taxable.
(f) In the event that at any time, as a result of an
adjustment made in respect of a Common Stock Event, the
holder of any Right thereafter exercised shall become
entitled to receive any shares of capital stock of the
Company other than shares of Common 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 of the Common Stock
contained in Sections 11(a), (b), (c), (e), (g), (h), (i),
(j), (k) and (m) hereof, and the provisions of Sections 7, 9,
10, 11(d) and 13 hereof with respect to the shares of Common
Stock shall apply on like terms to any such other shares.
(g) All Right Certificates 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 Common Stock
purchasable from time to time hereunder upon exercise of the
Rights represented thereby, all subject to further adjustment
as provided herein.
(h) Unless the Company shall have exercised its
election as provided in Section 11(i) hereof, upon each
adjustment of the Purchase Price as a result of the
calculations made pursuant to Sections 11(b) and 11(c)
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
shares of Common Stock (calculated to the nearest ten-
thousandth) obtained by (i) multiplying (x) the number of
shares covered by a Right immediately prior to this
adjustment by (y) the Purchase Price in effect immediately
prior to such adjustment and (ii) dividing the product so
obtained by the Purchase Price in effect immediately after
such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of
Rights in substitution for any adjustment in the number of
shares of Common 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 shares of Common Stock for which a Right was exercisable
immediately prior to such adjustment. Each Right held of
record prior to such adjustment of the number of Rights shall
become that number of Rights (calculated to the nearest ten-
thousandth) obtained by dividing the Purchase Price in effect
immediately prior to such adjustment of the Purchase Price by
the Purchase Price in effect immediately after such
adjustment of the Purchase Price. The Company shall make a
public announcement of its election to adjust the number of
Rights, indicating the record date for the adjustment, and,
if known at the time, the amount of the adjustment to be
made. This record date may be the date on which the Purchase
Price is adjusted or any day thereafter, but, if the Right
Certificates have been issued, shall be at least 10 days
later than the date of the public announcement. If Right
Certificates have been issued, upon each adjustment of the
number of Rights pursuant to this Section 11(i) the Company
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.
(j) Irrespective of any adjustment or change in the
Purchase Price or the number of shares of Common Stock
issuable upon exercise of such Rights, the Right Certificates
theretofore and thereafter issued may continue to express the
Purchase Price per share and the number of shares which were
expressed in the initial Right Certificates issued hereunder.
(k) Before taking any action that would cause an
adjustment reducing the Purchase Price below the then stated
value, if any, of the number of shares of Common 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 such number of fully paid and nonassessable
shares of Common Stock at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require
that an adjustment in the Purchase Price be made effective as
of a record date for a specified event, the Company may elect
to defer until the occurrence of such event the issuing to
the holder of any Right exercised after such record date the
number of shares of Common Stock and other capital stock or
securities of the Company, if any, issuable upon such
exercise over and above the number of shares of Common 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 securities upon the occurrence of
the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to
the extent that it, by means of a resolution of the Board of
Directors acting in good faith (which resolution shall be
conclusive on all concerned if approved by a majority of the
Continuing Directors), shall determine to be advisable in
order that any consolidation or subdivision of the Common
Stock, issuance wholly for cash of any Common Stock at less
than the current market price thereof, issuance wholly for
cash of Common Stock (or other securities which by their
terms are convertible into or exchangeable for Common Stock),
stock dividends or issuance of rights, options or warrants
referred to hereinabove in this Section 11, hereafter made or
declared by the Company to the holders of its Common Stock,
shall not be taxable to such holders.
(n) The Company covenants and agrees that it shall not,
at any time after the Distribution Date, (i) consolidate with
any other Person (other than a Subsidiary of the Company in a
transaction that complies with Section 11(o) hereof), (ii)
merge with or into any other Person (other than a Subsidiary
of the Company in a transaction which complies with Section
11(o) hereof), or (iii) sell or transfer (or permit any
Subsidiary to sell or transfer), in one transaction or a
series of related transactions, more than 25% of (A) the
assets (taken at net asset value as stated on the books of
the Company and determined on a consolidated basis in
accordance with generally accepted accounting principles
consistently applied) or (B) the earning power of the Company
and its Subsidiaries (determined on a consolidated basis in
accordance with generally accepted accounting principles
consistently applied) to any other Person or Persons (other
than the Company or any of its Subsidiaries in one or more
transactions each of which complies with Section 11(o)
hereof), if (x) at the time of or immediately after such
consolidation, merger or sale, there are any rights, warrants
or other instruments or securities outstanding or agreements
(whether or not in writing) in effect that would
substantially diminish or otherwise eliminate the benefits
intended to be afforded by the Rights or (y) prior to,
simultaneously with or immediately after such consolidation,
merger or sale, the stockholders of such other Person shall
have received a distribution of Rights previously owned by
such Person or any of its Affiliates.
(o) The Company covenants and agrees that, after the
Distribution Date, it will not, except as permitted by
Section 23 or 27 hereof, take (or permit any Subsidiary to
take) any action if at the time such action is taken it is
reasonably foreseeable that such action will diminish
substantially or otherwise eliminate the benefits intended to
be afforded by the Rights.
(p) Anything in this Agreement to the contrary
notwithstanding, in the event that the Company shall at any
time after the Dividend Declaration Date and prior to the
Distribution Date (i) declare a dividend on the outstanding
shares of Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding Common Stock, (iii) combine
the outstanding Common Stock into a smaller number of shares
or (iv) issue any shares of its capital stock in a
reclassification of the outstanding Common Stock, the number
of Rights associated with each share of Common Stock then
outstanding, or issued or delivered thereafter but prior to
the Distribution Date (or with respect to reserved shares as
specified in Section 3(d) prior to the earliest of the
occurrence of a Common Stock Event, the Expiration Date or
redemption), shall be proportionately adjusted so that the
number of Rights thereafter associated with each share of
Common Stock following any such event shall equal the result
obtained by multiplying the number of Rights associated with
each share of Common Stock immediately prior to such event by
a fraction the numerator of which shall be the total number
of shares of Common Stock outstanding immediately prior to
the occurrence of the event and the denominator of which
shall be the total number of shares of Common Stock
outstanding immediately following the occurrence of such
event.
SECTION 12. CERTIFICATE OF ADJUSTMENTS.
Whenever an adjustment is made as provided in Sections
11 or 13 hereof, the Company shall (a) promptly prepare an
Officers' 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 Common Stock a copy of such Officers'
Certificate and (c) mail a brief summary thereof to each
registered holder of a Right Certificate in accordance with
Section 25 hereof. The Rights Agent shall be fully protected
in relying on any such Officers' Certificate and on any
adjustment therein contained, and shall not be deemed to have
knowledge of any such adjustment unless and until it shall
have received such an Officers' Certificate.
SECTION 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF
ASSETS OR EARNING POWER.
In the event that, following the Stock Acquisition Date,
directly or indirectly, (a) the Company shall consolidate
with, or merge with and into, any other Person (other than a
Subsidiary of the Company in a transaction that complies with
Section 11(o) hereof) and the Company shall not be the
continuing or surviving Person of such consolidation or
merger, (b) any Person (other than a Subsidiary of the
Company in a transaction that complies with Section 11(o)
hereof) shall consolidate with, or merge with and into the
Company, the Company shall be the continuing or surviving
corporation of such consolidation or merger and, in
connection with such consolidation or merger, all or part of
the Common Stock of the Company shall be changed or otherwise
transformed into other stock or other securities of any other
Person or the Company or cash or any other property, or (c)
the Company shall sell or otherwise transfer (or one or more
of its Subsidiaries shall sell or otherwise transfer), in one
transaction or a series of related transactions, more than
25% of (A) the assets (taken at net asset value as stated on
the books of the Company and determined on a consolidated
basis in accordance with generally accepted accounting
principles consistently applied) or (B) the earning power, of
the Company and its Subsidiaries (determined on a
consolidated basis in accordance with generally accepted
accounting principles consistently applied) to any other
Person (other than the Company or any Subsidiary of the
Company in one or more transactions each of which complies
with Section 11(o) hereof) then, from and after such event,
proper provision shall be made so that (i) each holder of a
Right, except as provided in Section 7(e) hereof, shall
thereafter have the right to receive, upon the exercise
thereof at the Purchase Price in effect at the time of such
exercise in accordance with the terms of this Agreement, such
number of shares of validly authorized and issued, fully
paid, non-assessable and freely tradeable Common Stock of
such other Person (or, in the case of a transaction or series
of transactions described in clause (c) above, the Person
receiving the greatest amount of the assets or earning power
of the Company, or if the Common Stock of such Person is not
and has not been continuously registered under Section 12 of
the Exchange Act for the preceding 12-month period and such
Person is a direct or indirect subsidiary of another Person,
the Common Stock of which is and has been so registered, that
other Person, or if such Person is a direct or indirect
subsidiary of more than one other Person, the Common Stock of
two or more of which are and have been so registered, such
other Person whose issued Common Stock has the greatest
aggregate value), free and clear of any liens, encumbrances,
rights of first refusal or other adverse claims, as shall be
equal to the result obtained by (x) multiplying the Purchase
Price in effect immediately prior to the first occurrence of
any Common Stock Event by the number of shares of Common
Stock for which a Right is exercisable immediately prior to
such first occurrence (and without taking into account any
prior adjustment made pursuant to 11(a)(ii)) and dividing
that product by (y) 50% of the current market price per share
(as defined in Section 11(d) hereof) of the Common Stock of
such other Person determined as of the date of consummation
of such consolidation, merger, sale or transfer; (ii) the
issuer of such Common Stock shall thereafter be liable for,
and shall assume, by virtue of such consolidation, merger,
sale or transfer, all the obligations and duties of the
Company pursuant to this Agreement; (iii) the term "Company"
shall thereafter be deemed to refer to such issuer, it being
specifically intended that the provisions of Section 11
hereof (other than Section 11(a)(ii) hereof) shall apply only
to such issuer following the first occurrence of a Common
Stock Event under this Section 13; (iv) such issuer shall
take such steps (including, but not limited to, the
reservation of a sufficient number of shares of its Common
Stock) 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; and (v) the
provisions of Section 11(a)(ii) hereof shall be of no effect
following the first occurrence of any Common Stock Event
described in clauses (a), (b) or (c) of this Section 13. The
Company shall not consummate any such consolidation, merger,
sale or transfer unless (i) such issuer shall have a
sufficient number of authorized shares of its Common Stock
which have not been issued or reserved for issuance as will
permit the exercise in full of the Rights in accordance with
this Section 13 and (ii) prior thereto the Company and such
issuer shall have executed and delivered to the Rights Agent
a supplemental agreement so providing and further providing
that as soon as practicable after the date of any Common
Stock Event described above in this Section 13 such issuer
will (A) prepare and file a registration statement under the
Act, with respect to the Rights and the securities
purchasable upon exercise of the Rights on an appropriate
form, and will use its best efforts to cause such
registration statement to (I) become effective as soon as
practicable after such filing and (II) remain effective (with
a prospectus at all times meeting the requirements of the
Act) until the Expiration Date and (B) will deliver to
holders of the Rights historical financial statements of such
issuer and each of its Affiliates which comply in all
respects with the requirements for registration on Form 10
under the Exchange Act. Furthermore, in case the Person
which is to be party to a transaction referred to in this
Section 13 has any provision in any of its authorized
securities or in its charter or by-laws or other agreement or
instrument governing its affairs, which provision would have
the effect of causing such Person to issue, in connection
with, or as a consequence of, the consummation of a Common
Stock Event described in Clauses (a), (b) or (c) of this
Section 13, shares of Common Stock of such Person at less
than the then current market price per share thereof (as
defined in Section 11(d) hereof), or to issue securities
exercisable for, or convertible into, Common Stock of such
Person at less than such then current market price; then, in
such event, the Company hereby agrees with each holder of the
Rights that it shall not consummate any such transaction
unless prior thereto the Company and such Person shall have
executed and delivered to the Rights Agent a supplemental
agreement providing that such provision in question shall
have been canceled, waived or amended so that it will have no
effect in connection with, or as a consequence of, the
consummation of the proposed transaction. The provisions of
this Section 13 shall similarly apply to successive mergers
or consolidations or sales or other transfers. In the event
that a Common Stock Event described in this Section 13 shall
occur at any time after the occurrence of a Common Stock
Event described in Section 11(a)(ii) hereof, the Rights which
have not therefore been exercised shall thereafter become
exercisable in the manner described in this Section 13.
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 issuing such
fractional Rights, at the election of the Company, there
shall be paid to the registered holders of the Rights 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.
(b) The Company shall not be required to issue
fractions of shares of its capital stock upon exercise of the
Rights or to distribute certificates which evidence
fractional shares. In lieu of fractional shares, at the
election of the Company, there shall be paid to the
registered holders of Rights 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 of such
capital stock. For purposes of this Section 14(b), the
current market value of a share of such capital stock shall
be the Closing Price of such capital stock for the Trading
Day immediately prior to the date of such exercise.
(c) The holder of a Right by the acceptance of the
Rights expressly waives his right to receive any fractional
Rights or (except as provided in Section 14(b) hereof) any
fractional share upon exercise of a Right.
SECTION 15. RIGHTS OF ACTION.
Excepting the rights of action given the Rights Agent
under Section 18 hereof, all rights of action in respect of
this Agreement are vested in the respective registered
holders of the Rights; and any registered holder of any
Right, without the consent of the Rights Agent or of the
holder of any other Right, may, in his own behalf and for his
own benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Company to enforce, or
otherwise act in respect of, his right to exercise the Rights
evidenced by such Rights in the manner provided in such Right
Certificate and in this Agreement, and the Company hereby
agrees to reimburse such registered holder for all expenses
(including reasonable attorneys' fees) incurred by such
registered holder in connection therewith. 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 the obligations hereunder, and shall be entitled to
injunctive relief against actual or threatened violations of
the obligations hereunder of any Person subject to this
Agreement.
SECTION 16. AGREEMENT OF RIGHT HOLDERS.
Every holder of a Right by accepting the same consents
and agrees with the Company and the Rights Agent and with
every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of 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 accompanied by a medallion signature guarantee
and such other documentation as the Rights Agent may
reasonably request;
(c) subject to sections 6(a) and 7(f) hereof, the
Company and the Rights Agent may deem and treat the person in
whose name a 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, prior to the
Distribution Date, the associated Common Stock certificates,
made by anyone other than the Company or the Rights Agent)
for all purposes whatsoever, and neither the Company nor the
Rights Agent shall be affected by any notice to the contrary;
and
(d) notwithstanding anything in this Agreement to the
contrary, neither the Company nor the Rights Agent shall have
any liability to any holder of a Right or other Person as a
result of its inability to perform any of its obligations
under this Agreement by reason of any preliminary or
permanent injunction or other order, decree or ruling issued
by a court of competent jurisdiction or by a governmental,
regulatory or administrative agency or commission, or any
statute, rule, regulation or executive order promulgated or
enacted by any governmental authority prohibiting or
otherwise restraining performance of such obligation;
provided, however, the Company must use its best efforts to
have any such order, decree or ruling lifted or otherwise
overturned as soon as possible.
SECTION 17. RIGHT CERTIFICATE HOLDER NOT DEEMED A
STOCKHOLDER.
No holder, as such, of any Right shall be entitled to
vote, receive dividends or otherwise be deemed for any
purpose the holder of any shares of Common Stock or the
shares or similar units of any other securities of the
Company which may 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 in 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), or to receive dividends or
preemptive rights, or otherwise, until the time specified in
Section 10 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 disbursements and
other disbursements incurred in the administration and
execution of this Agreement and the exercise and performance
of its duties hereunder. The Company also agrees to
indemnify the Rights Agent for, and to hold it harmless
against, any loss, liability, or expense, incurred without
gross negligence, bad faith or willful misconduct on the part
of the Rights Agent, for anything done or omitted by the
Rights Agent in connection with the acceptance and
administration of this Agreement, including the costs and
expenses (including reasonable attorneys' fees) of defending
against any claim of liability in the premises.
The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or
omitted by it in connection with its administration of this
Agreement in reliance upon any Right Certificate or
certificate for any shares of 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 may be
merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to
which the Rights Agent shall be a party, or any corporation
succeeding to the shareholder services business of the 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 and 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 such 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 only the duties and
obligations expressly imposed upon it by this Agreement and
no implied duties or obligations shall be read into this
Agreement against the Rights Agent. The Rights Agent shall
perform its duties and obligations hereunder upon the
following terms and conditions:
(a) The Rights Agent may consult with legal counsel
(who may be legal counsel to the Company), and the opinion of
such counsel shall be full and complete authorization and
protection to the Rights Agent as to any action taken or
omitted by it in good faith and in accordance with such
opinion.
(b) Whenever in the performance of its duties under
this Agreement the Rights Agent shall deem it necessary or
desirable that any fact or matter (including, without
limitation, the identity of any Acquiring Person) 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 (an "Officers' Certificate")
signed by a person believed by the Rights Agent to be the
Chairman of the Board, the President or any Vice President
and by the Treasurer or any Assistant Treasurer or the Clerk
or any Assistant Clerk of the Company and delivered to the
Rights Agent; and such Officers' 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 gross negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by
reason of any of the statements of fact or recitals contained
in this Agreement or in the Right Certificates (except its
countersignature on any such Right Certificate) 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 procedures
or the ascertaining of the existence of facts that would
require any such adjustment or procedure (except with respect
to the exercise of Rights evidenced by Right Certificates
after receipt of a certificate describing any such adjustment
or procedures); nor shall it by any act hereunder be deemed
to make any representation or warranty as to the
authorization or reservation of any Common Stock or other
securities to be issued pursuant to this Agreement or any
Right Certificate or as to whether any shares of Common
Stock, or any shares or similar units of 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 any person believed by the Rights Agent
to be the Chairman of the Board, the President or any Vice
President or the Clerk or any Assistant Clerk or the
Treasurer or any Assistant Treasurer of the Company, and to
apply to such officers for advice or instructions in
connection with its duties, and it shall not be liable for
any action taken or suffered to be taken by it in good faith
in accordance with instructions of any such officer. Any
application by the Rights Agent for written instructions from
the Company may, at the option of the Rights Agent, set forth
in writing any action proposed to be taken or omitted by the
Rights Agent with respect to its duties or obligations under
this Rights Agreement and the date on and/or after which such
action shall be taken or omitted and the Rights Agent shall
not be liable for any action taken or omitted in accordance
with a proposal included in any such application on or after
the date specified therein (which date shall not be less than
three business days after the date any such officer actually
receives such application, unless any such officer shall have
consented in writing to an earlier date) unless, prior to
taking or omitting any such action, the Rights Agent has
received written instructions in response to such application
specifying the action to be taken or omitted.
(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 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 entity.
(i) The Rights Agent may execute and exercise any of
the rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or
agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of
any such attorneys or agents or for any loss to the Company
resulting from any such act, default, neglect or misconduct,
provided reasonable care was exercised in the selection and
continued employment thereof.
(j) No provision of this Agreement shall require the
Rights Agent to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of
its duties hereunder or in the exercise of its rights if
there shall be reasonable grounds for believing that
repayment of such funds or adequate indemnification against
such risk or liability is not reasonably assured to it.
(k) If, with respect to any Right Certificate
surrendered to the Rights Agent for exercise or transfer, the
certification appearing on the reverse side thereof following
the form of election to purchase has either not been
completed or indicates an affirmative response to clause 1
and/or 2 thereof, the Rights Agent shall not take any further
action with respect to such requested exercise of transfer
without first consulting with the Company.
(l) The provisions of this Section 20 are solely for
the benefit of the Rights Agent or the Company and any
failure or omission under this Section 20 shall not affect
the rights of the Company under this Agreement and the Rights
Agent or the Company shall have no liability to any holder of
Rights or other Person on account of such failure or
omission.
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 by registered or
certified mail, and, subsequent to the Distribution Date, to
the holders of the Right Certificates by first-class mail.
The Company may remove the Rights Agent or any successor
Rights Agent upon 30 days' notice in writing, mailed to the
Rights Agent, to each transfer agent of the Common Stock by
registered or certified mail, and, subsequent to the
Distribution Date, to the holders of the Right Certificates
by first-class mail. If the Rights Agent shall resign or be
removed or shall otherwise become incapable of acting, the
Company shall appoint a successor to the Rights Agent. If
the Company shall fail to make such appointment within a
period of 30 days after giving notice of such removal or
after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or
by the holder of a Right Certificate (who shall, with such
notice, submit his Right Certificate for inspection by the
Company), then the registered holder of any Right Certificate
may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent. Any successor Rights
Agent, whether appointed by the Company or by such a court,
shall be a corporation organized and doing business under the
laws of the United States, The Commonwealth of Massachusetts
or the State of New York (or of any other State of the United
States so long as such corporation is authorized to do
business as a banking institution in The Commonwealth of
Massachusetts or the State of New York), in good standing,
having a Principal Office in The Commonwealth of
Massachusetts or the State of New York, which is authorized
under such laws to exercise corporate trust powers and is
subject to supervision or examination by federal or state
authority and which has at the time of its appointment as
Rights Agent a combined capital and surplus of at least
$50,000,000. After appointment, the successor Rights Agent
shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Rights
Agent without further act or deed; but the predecessor Rights
Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and
execute and deliver any further assurance, conveyance, act or
deed necessary for the purpose; and, except as the context
herein otherwise requires, such successor Rights Agent shall
be deemed to be the "Rights Agent" for all purposes of this
Agreement. 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 mail a notice thereof in writing to the
registered holders of the Right Certificates. Failure to
give any notice provided for in this Section 21, however, or
any defect therein, shall not affect the legality or validity
of the resignation or removal of the Rights Agent or the
appointment of the successor Rights Agent, as the case may
be.
SECTION 22. ISSUANCE OF NEW RIGHT CERTIFICATES.
Notwithstanding any of the provisions of this Agreement
or of the Rights to the contrary, the Company may, at its
option, issue new Right Certificates evidencing Rights in
such form as may be approved by the Board of Directors of the
Company to reflect any adjustment or change in the Purchase
Price per share and the number or kind or class of shares of
stock or other securities or property purchasable under the
Right Certificate made in accordance with the provisions of
this Agreement.
SECTION 23. REDEMPTION AND TERMINATION.
The Continuing Directors then in office may, at its
option, upon the affirmative vote or written consent of not
less than two-thirds of such Continuing Directors, at any
time prior to the Expiration Date, redeem all (but not less
than all) of the then outstanding Rights at a redemption
price of $.01 per Right, appropriately adjusted to reflect
any stock split, stock dividend, combination of shares or
similar transaction occurring after the date hereof (such
redemption price being hereinafter referred to as the
"Redemption Price"). Immediately upon the taking of such
action ordering the redemption of all of the Rights, evidence
of which shall have been filed with the Rights Agent, and
without any further action and without any notice, the right
to exercise the Rights so redeemed will terminate and the
only right thereafter of the holders of such Rights so
redeemed shall be to receive the Redemption Price (without
the payment of any interest thereon). Within 10 days after
such action ordering the redemption of all 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.
SECTION 24. EXCHANGE.
(a) The Company, by a vote of two-thirds of the
Continuing Directors then in office, 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 exclude Rights that have become null and void
in accordance with Section 7(e) hereof) for shares of Common
Stock at an exchange ratio of one share of Common Stock per
Right, appropriately adjusted to reflect any stock split,
stock dividend or similar transaction occurring after the
date hereof (such exchange ratio being hereinafter referred
to as the "Exchange Ratio"). Notwithstanding the foregoing,
the Continuing Directors shall not be empowered to effect
such exchange at any time after any Person (other than the
Company, any Subsidiary of the Company, any employee benefit
plan of the Company or any such Subsidiary, or any entity
holding Common Stock for or pursuant to the terms of any such
employee benefit plan), together with all Affiliates of such
Person, becomes the Beneficial Owner of 50% or more of the
Common Stock then outstanding.
(b) Immediately upon the action of the Continuing
Directors 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 the 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 the event that there shall not be sufficient
shares of Common Stock issued but not outstanding or
authorized but unissued to permit any exchange of Rights as
contemplated in accordance with this Section 24, the Company
shall take all such action as may be necessary to authorize
additional Common Stock for issuance upon exchange of the
Rights.
(d) The Company shall not be required to issue
fractions of shares of Common Stock or to distribute
certificates which evidence fractional shares of Common
Stock. In lieu of such fractional shares of Common Stock,
the Company shall pay to each registered holder of a Right
Certificate with regard to which a fractional share 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 Section 11(d) 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 after the Distribution Date
propose (a) to pay any dividend payable in stock of any class
to the holders of its Common Stock or to make any other
distribution to the holders of its Common Stock (other than a
regular periodic cash dividend out of earnings or the
retained earnings of the Company), or (b) to offer to the
holders of its Common Stock rights or warrants to subscribe
for or to purchase any additional shares of Common Stock or
shares of stock of any class or any other securities, rights
or options, or (c) to effect any reclassification of the
Common Stock (other than a reclassification involving only
the subdivision of outstanding shares of Common 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 sale or other transfer), in
one transaction or a series of related transactions, of more
than 25% of (i) the assets (taken at net asset value as
stated on the books of the Company and determined on a
consolidated basis in accordance with generally accepted
accounting principles consistently applied) or (ii) the
earning power, of the Company and its Subsidiaries
(determined on a consolidated basis in accordance with
generally accepted accounting principles consistently
applied) to any other Person or Persons or (e) to effect the
liquidation, dissolution or winding up of the Company, then,
in each such case, the Company shall give to the Rights Agent
and each holder of a Right, in accordance with Section 26, 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 Common
Stock, if any such date is to be fixed, and such notice shall
be so given in the case of any action covered by clause (a)
or (b) above at least twenty days prior to the record date
for determining holders of the Common Stock for purposes of
such action, and in the case of any such other action, at
least twenty days prior to the date of the taking of such
proposed action or the date of participation therein by the
holders of Common 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 any Common Stock Event described in
Section 11(a)(ii) hereof shall occur, then, in any such case,
the Company shall as soon as practicable thereafter give to
the Rights Agent and each holder of a Right Certificate, in
accordance with Section 26 hereof, a notice of the occurrence
of such Common Stock Event, which shall specify such event
and the consequences of the event to holders of Rights under
Section 11(a)(ii) hereof.
Notwithstanding anything in this Agreement to the
contrary, prior to the Distribution Date a filing by the
Company with the Securities and Exchange Commission shall
constitute sufficient notice to the holder of securities of
the Company, including the Rights, for purposes of this
Agreement and no other notice need be given.
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 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:
MILLIPORE CORPORATION
80 Ashby Road
Bedford, Massachusetts 01730
Attention: General Counsel
Copy to: David B. Walek, Esq.
Ropes & Gray
One International Place
Boston, Massachusetts 02110-2624
Subject to the provisions of Sections 19 and 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:
BANKBOSTON, N.A.
c/o Boston Equiserve Limited Partnership
150 Royall Street
Canton, MA 02021
Attention: Client Administration
Notices or demands authorized by this Agreement to be given
or made by the Company or the Rights Agent to the holder of
any Right Certificate 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, upon the vote of two-thirds of the
Continuing Directors then in office, may from time to time
amend this Agreement without the approval of any holders of
the Rights in order to (i) cure any ambiguity, (ii) correct
or supplement any provisions contained herein which may be
defective or inconsistent with any other provisions herein,
(iii) change any time period governing redemption of the
Rights or (iv) make any other provision in regard to matters
or questions arising hereunder which the Continuing
Directors, upon the vote of two-thirds of the Continuing
Directors then in office may deem necessary or desirable and
which shall not adversely affect the interests of the holders
of the Rights; provided, however, that no such amendment may
be made pursuant to this sentence (i) if at such time the
Rights are not then redeemable or (ii) after the occurrence
of a Common Stock Event. Prior to the Distribution Date, the
interests of the holders of Rights shall be deemed coincident
with the interests of the holders of Common Stock. The
Rights Agent shall join with the Company in the execution and
delivery of any such supplement or amendment, unless such
supplement or amendment affects any of the rights, duties or
obligations of the Rights Agent hereunder, in which case the
Rights Agent may, but shall not be required to, join in such
execution and delivery.
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. DETERMINATIONS AND ACTIONS BY THE BOARD OF
DIRECTORS; ETC.
The Board of Directors of the Company shall have the
exclusive power and authority to administer this Agreement
and to exercise all rights and powers specifically granted to
the Board of Directors, or to the Company, or as may be
necessary or advisable in the administration of this
Agreement, including, without limitation, the right and power
to (i) interpret the provisions of this Agreement, and (ii)
make all determinations deemed necessary or advisable for the
administration of this Agreement. All such actions,
calculations, interpretations and determinations (including,
for purposes of clause (y) below all omissions with respect
to the foregoing) which are done or made by the Board of
Directors in good faith and with the concurrence of a
majority of the Continuing Directors shall (x) be final,
conclusive and binding on the Company, the Rights Agent, the
holders of the Rights and all other parties and (y) not
subject any director to any liability to the holders of the
Rights.
SECTION 30. BENEFITS OF THIS AGREEMENT.
Nothing in this Agreement shall be construed to give to
any Person other than the Company, the Rights Agent and the
registered holders of the Right Certificates (and, prior to
the Distribution Date, the associated shares of Common Stock)
any legal or equitable right, remedy or claim under this
Agreement or the Rights; but this Agreement shall be for the
sole and exclusive benefit of the Company, the Rights Agent
and the registered holders of the Rights (and, prior to the
Distribution Date, the associated Common Stock).
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 Commonwealth of Massachusetts and for all
purposes shall be governed by and construed in accordance
with the laws of said Commonwealth applicable to contracts to
be made and performed entirely within said Commonwealth.
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.
SECTION 34. SEVERABILITY.
The invalidity or unenforceability of any term or
provision hereof shall not affect the validity or
enforceability of any other term or provision hereof. If any
term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction or other authority
to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in
no way be affected, impaired or invalidated; provided,
however, that notwithstanding anything in this Agreement to
the contrary, if any such term, provision, covenant or
restriction is held by such court or authority to be invalid,
void or unenforceable and the Company, upon the affirmative
vote of two-thirds of the Continuing Directors then in
office, determines in its good faith judgment that severing
the invalid language from this Agreement would adversely
affect the purpose or effect of this Agreement, the right of
redemption set forth in Section 23 hereof shall be reinstated
and shall not expire until the close of business on the tenth
day following the date of such determination by the Board of
Directors of the Company.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and their respective corporate
seals to be hereunto affixed and attested, all as of the day
and year first above written.
MILLIPORE CORPORATION
By: /s/ C. William Zadel
.
Title: Chairman, President &
Chief Executive Officer
Attest:
By: /s/ Peter W. Walcott
Title: Assistant Clerk
BANKBOSTON, N.A.
By: Michael J. Lapolla .
Title: Administrative Manager
EXHIBIT A
FORM OF RIGHT CERTIFICATE
Certificate No. R- _______
Rights
NOT EXERCISABLE AFTER APRIL 30, 2008 OR EARLIER IF NOTICE
OF REDEMPTION IS GIVEN. THE RIGHTS ARE SUBJECT TO
REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.01 PER
RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.
[THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE
BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN
ACQUIRING PERSON OR AN AFFILIATE OF AN ACQUIRING PERSON
(AS EACH SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT).
ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS
REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE
CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE RIGHTS
AGREEMENT. THE RIGHTS AGENT WILL MAIL TO THE REGISTERED
HOLDER OF THIS CERTIFICATE A COPY OF THE RIGHTS AGREEMENT,
AS IN EFFECT ON THE DATE OF MAILING, WITHOUT CHARGE UPON
WRITTEN REQUEST.]*
* The portion of the legend in brackets shall be
inserted only if applicable.
Right Certificate
MILLIPORE 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 Common
Stock Rights Agreement dated as of April 15, 1988, as amended
and restated as of April 16, 1998 (as so amended and
restated, and as may be further amended and/or restated from
time to time, the "Rights Agreement") between Millipore
Corporation, a Massachusetts corporation (the "Company"), and
BankBoston, N.A. (the "Rights Agent"), to purchase from the
Company at any time after the Distribution Date (as such term
is defined in the Rights Agreement) and prior to 5:00 P.M.
(Boston time) on April 30, 2008 (the "Expiration Date") at
the Principal Office (as such term is defined in the Rights
Agreement) of the Rights Agent, or its successors as Rights
Agent, in Boston, Massachusetts, one fully paid nonassessable
share of the Common Stock, without par value ("Common
Stock"), of the Company per each Right represented hereby, at
a purchase price of $200 per share (the "Purchase Price")
upon presentation and surrender of this Right Certificate
with the Form of Election to Purchase set forth on the
reverse side hereof and the certificate contained therein
duly executed. The number of Rights evidenced by this Right
Certificate (and the number of shares which may be purchased
upon exercise thereof) set forth above, and the Purchase
Price per share set forth above, are the number and Purchase
Price as of April 16, 1998, based on the shares of Common
Stock of the Company as constituted at such date.
As more fully set forth in the Rights Agreement, upon the
occurrence of a Common Stock Event (as such term is defined
in the Rights Agreement), if the Rights evidenced by this
Right Certificate are beneficially owned by (i) an Acquiring
Person or an Affiliate of an Acquiring Person (as each such
term is defined in the Rights Agreement) or (ii) a
Disqualified Transferee (as defined in the Rights Agreement),
such Rights shall automatically become null and void and no
holder hereof shall have any right with respect to such
Rights from and after the occurrence of such Common Stock
Event.
As provided in the Rights Agreement, the Purchase Price and
the number of shares of Common Stock which may be purchased
upon the exercise of the Rights evidenced by this Right
Certificate are subject to modification and adjustment upon
the happening of certain events.
In the circumstances described in Section 13 of the Rights
Agreement, the securities issuable upon the exercise of the
Rights evidenced hereby, shall be the common stock or similar
equity securities or equity interests of an entity other than
the Company.
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,
which limitations of rights include the temporary suspension
of the exercisability of such Rights under the specific
circumstances set forth in the Rights Agreement. Copies of
the Rights Agreement are on file at the Principal Office of
the Rights Agent and may be obtained by the holder of any
Rights upon written request to the Rights Agent.
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 Common 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, by a two-thirds vote of the Continuing Directors, at
any time prior to the Expiration Date, at a redemption price
of $.01 per Right (which amount is subject to adjustment as
provided in the Rights Agreement.)
The Company is not obligated to issue whole or
fractional shares of Common Stock (or other securities) upon
the exercise of any Right or Rights evidenced hereby, but in
lieu thereof a cash payment may be made, at the election of
the Company, as provided in the Rights Agreement.
No holder of this Right Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any
purpose the holder of Common Stock or of any other securities
of the Company which may at any time be issuable on the
exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder
hereof, as such, any of the rights of a stockholder of the
Company or any right to vote for the election of directors or
upon any matter submitted to stockholders at any meeting
thereof, or to give or withhold consent to any corporate
action, or, to receive notice of meetings or other actions
affecting stockholders (except as provided in the Rights
Agreement), or to receive dividends or subscription rights,
or otherwise, until the Right or Rights evidenced by this
Right Certificate shall have been exercised as provided in
the Right 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
April 16, 1998.
MILLIPORE CORPORATION
By: .
Title:
ATTEST:
[Seal]
.
Clerk
Countersigned:
BANKBOSTON, N.A.
By: .
Authorized Officer
Date of Countersignature:
[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 Certificates.)
FOR VALUE RECEIVED ___________________ hereby sells,
assigns and transfers unto ______________________________
________________________________________________________,
(Please print name and address of transferee)
_________________________________________________________
whose social security or tax identification number, is:
_________
the Rights evidenced by this Right Certificate, together with
all right, title and interest herein, and does hereby
irrevocably constitute and appoint _______________ Attorney,
to transfer the within Right Certificate on the books of the
within-named Company, with full power of substitution.
Dated: ________________, 19__.
.
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment must correspond to
the name as written upon the fact of this Right Certificate
in every particular, without alteration or enlargement or any
change whatsoever.
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise the Right
Certificate.)
To Millipore Corporation:
The undersigned hereby irrevocably elects to exercise
________________ Rights represented by this Right Certificate
to purchase the shares of Common Stock (or other securities)
issuable upon the exercise of such Rights and requests that
certificates for such shares be issued in the name of:
Please insert social security
or other identifying number __________________________
________________________________________________________
(Please print name and address)
________________________________________________________
If such number of Rights shall not be all the Rights
evidenced by this Right Certificate, a new Right Certificate
for the balance remaining of such Rights shall be registered
in the name of and delivered to:
Please insert social security
or other identifying number ___________________________
________________________________________________________
(Please print name and address)
________________________________________________________
Dated: _____________, 19__
.
Signature
(Signature must conform in all respects to
name of holder as
specified on the fact of this Right
Certificate)
Signature Guaranteed:
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 of any such
Acquiring Person (as each such term is defined in to the
Rights Agreement); and
(2) After due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights
evidenced by this Right Certificate after the occurrence of a
Common Stock Event (as such term is defined in the Rights
Agreement) from any Person who is, was or became an Acquiring
Person or an Affiliate of an Acquiring Person.
Dated:_________, 19___
.
Signature
EXHIBIT B
MILLIPORE CORPORATION
SUMMARY OF COMMON STOCK PURCHASE RIGHTS
On April 15, 1988, Millipore Corporation (the
"Company") declared a dividend distribution of one
common stock purchase right (a "Right"; collectively,
the "Rights") for every outstanding share of Common
Stock, $1.00 par value (the "Common Stock"), of the
Company. The distribution was payable on April 27, 1988
(the "Dividend Record Date") to the shareholders of
record as of the close of business on the Dividend
Record Date. On April 16, 1998, the terms of the rights
were amended in certain respects, including extension of
the Expiration Date referred to below to April 30, 2008.
This Summary describes the Rights as so amended. The
description and terms of the Rights are set forth in a
Common Stock Rights Agreement between the Company and
BankBoston, N.A., as Rights Agent (the "Rights Agent")
dated as of April 15, 1988, as amended and restated as
of April 16, 1998 (as so amended and restated, and as
may be further amended and/or restated from time to
time, the "Rights Agreement").
The Rights Agreement contemplates the issuance of
one Right for every share of Common Stock issued between
the Dividend Record Date and the Distribution Date (as
that term is defined below). The Rights Agreement also
contemplates the issuance of one Right for each share of
Common Stock which is reserved for issuance as of the
Distribution Date (e.g., shares reserved under employee
benefit plans) and which is issued on or after the
Distribution Date and prior to the occurrence of a
Common Stock Event (as that term is defined below). Each
Right entitles the registered holder to purchase from
the Company one share of Common Stock at a price of $200
per share (the "Purchase Price"), subject to adjustment.
Initially, the Rights will attach to all
outstanding shares of Common Stock, and no separate
Right Certificates will be issued. The Rights will
separate from the Common Stock upon the earlier to occur
of (i) the date which is the 10th business day following
a public announcement that a person or affiliates or
associates of such person (an "Acquiring Person") has
acquired, or obtained the right to acquire, beneficial
ownership (determined as provided in the Rights
Agreement) of 20% or more of the outstanding shares of
Common Stock (the "Stock Acquisition Date") or (ii) the
10th business day following the commencement or
announcement of an intention to make a tender offer or
exchange offer which would result in any person or its
affiliates and associates owning 20% or more of the
outstanding Common Stock (the earlier of such dates
being called the "Distribution Date"). Until the
Distribution Date (or earlier redemption or expiration
of the Rights), (i) the Rights will be evidenced by the
Common Stock certificates and will be transferred with
and only with such Common Stock certificates, (ii) new
Common Stock certificates issued after the Dividend
Record Date upon transfer or new issuance of the
Company's Common Stock will contain a notation
incorporating the Rights Agreement by reference and
(iii) the surrender for transfer of any of the Company's
Common Stock certificates 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, if any, 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 Right
Certificates alone will evidence the Rights.
Upon the occurrence of certain events described in
the Rights Agreement (a "Common Stock Event"), any
Rights that are, or (under certain circumstances
specified in the Rights Agreement) were, beneficially
owned by any Acquiring Person (or its affiliates,
associates or transferees) shall immediately become null
and void.
The Rights are not exercisable until the
Distribution Date. The Rights will expire on April 30,
2008 (the "Expiration Date"), or the earlier redemption
of the Rights.
If, at any time after the Declaration Date, any person
or group of affiliated or associated persons (other than
the Company and its affiliates) shall become an
Acquiring Person, each holder of a Right will have the
right to receive shares of the Company's Common Stock
(or, in certain circumstances, cash, property or other
securities of the Company) having a market value equal
to two times the exercise price of the Right. Thus, if
the exercise price is $200, the holder of each Right
would be entitled to receive $400 in market value of the
Company's Common Stock for a payment of $200. Also, in
the event that the Company were acquired in a merger or
other business combination, or that more than 25% of its
assets or earning power were sold, each holder of a
Right would have the right to exercise such Right and
thereby receive common stock of the acquiring company
with a market value equal to two times the exercise
price of the Right. For example, if the exercise price
is $200, the holder of each Right would be entitled to
receive $400 in market value of the acquiring company's
common shares for a payment of $200.
The Company, by a vote of two-thirds of the
Continuing Directors (as defined below) may, at its
option, at any time after any Person becomes an
Acquiring Person (or certain other events occur),
exchange all or part of the then outstanding and
exercisable Rights (which excludes Rights beneficially
owned by an Acquiring Person or its affiliates,
associates or transferees) for shares of Common Stock at
an exchange ratio of one share of Common Stock per
Right, appropriately adjusted to reflect any stock
split, stock dividend or similar transaction occurring
after the date of declaration of the Rights (such
exchange ratio being hereinafter referred to as the
"Exchange Ratio"). The Company, however, may not effect
an exchange at any time after any Person (other than the
Company, any Subsidiary of the Company, any employee
benefit plan of the Company or any such Subsidiary or
any entity holding Common Stock for or pursuant to the
terms of any such plan), together with all Affiliates of
such Person, becomes the Beneficial Owner of 50% or more
of the Common Stock then outstanding. Immediately upon
the action of the Company ordering the exchange of any
Rights and without any further action and without any
notice, the right to exercise such Rights will terminate
and the only right thereafter of a holder of such Rights
will be to receive that number of shares of Common Stock
equal to the number of such Rights held by the holder
multiplied by the Exchange Ratio.
The term "Continuing Directors" is defined in the
Rights Agreement as (a) any member of the Board of
Directors of the Company at all times when the Board of
Directors of the Company is comprised of more than one
class of directors and the term of office of the
directors who are members of each such class is
staggered, or (b) at all times when the Board of
Directors of the Company is not so staggered, a director
of the Company who is not an affiliate or associate of
an Acquiring Person and who was a member of the Board of
Directors of the Company on April 16, 1998 or
recommended for election by a majority of the Continuing
Directors in office at the time of nomination.
The exercise price of the Rights, and the number of
shares of the Common 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
Common Stock, (ii) upon the grant to holders of the
Common Stock of certain rights or warrants to subscribe
for shares of the Common Stock or convertible securities
at less than the current market price of the Common
Stock or (iii) upon the distribution to holders of the
Common Stock of evidences of indebtedness or assets
(excluding regular periodic cash dividends paid out of
the earnings or retained earnings of the Company and
dividends payable in shares of Common Stock) or of
subscription rights or warrants (other than those
referred to above).
In the event that, at any time following the Stock
Acquisition Date, the Company were acquired in a merger
or other business combination (other than a merger
described in the following sentence) or 25% or more of
its assets or earning power were sold, proper provision
shall be made so that, except as described in the last
sentence of this paragraph, each holder of a Right shall
thereafter have the right to receive, upon the exercise
thereof at the then current exercise price of the Right,
that number of shares of common stock of the acquiring
company (or, in the event of a transfer of assets or
earning power involving more than one acquiring company,
the acquiring company receiving the greatest portion of
the assets or earning power transferred) which at the
time of such transaction would have a market value equal
to two times the exercise price of the Right. In the
event that, at any time following the Distribution Date,
(i) the Company were the surviving corporation in a
merger with an Acquiring Person and its Common Stock
were not changed or exchanged, (ii) an Acquiring Person
engages in one of the self-dealing transactions
specified in the Rights Agreement or (iii) during such
time as there is an Acquiring Person, (A) an event
occurs which results in such Acquiring Person's
proportionate ownership interest being increased by more
than 1% or (B) there shall be a reduction in the annual
rate of dividends paid on the shares of Common Stock
(except as approved by a majority of the "Continuing
Directors"), proper provision shall be made so that,
except as described in the following sentence, each
holder of a Right will thereafter have the right to
receive upon exercise that number of shares of the
Common Stock (or, in certain circumstances, cash,
property or other securities of the Company) having a
market value of two times the exercise price of the
Right. In the circumstances described in the Rights
Agreement, if the Company would be prohibited under its
charter from issuing Common Stock or other securities to
certain holders of the Rights upon exercise thereof,
among other things, such Rights may be sold by the
Company for the account of such holder, and the net
proceeds of such sale delivered to such holder.
With certain exceptions, no adjustment in the
Purchase Price will be required until cumulative
adjustments require an adjustment of at least 1% in such
Purchase Price. No fractional shares of any securities
will be issued and, in lieu thereof, an adjustment in
cash will be made based on the market price of such
securities on the last trading date prior to the date of
exercise.
At any time prior to the Expiration Date, the
Company, by a two-thirds vote of the Continuing
Directors, may redeem the Rights at a redemption price
of $.01 (the "Redemption Price"), as described in the
Rights Agreement. Immediately upon the action of the
Continuing Directors of the Company electing to redeem
the Rights, the Company shall make a public announcement
thereof, and upon such election, the right to exercise
the Rights will terminate and the only right of the
holders of Rights will be to receive the Redemption
Price.
Until a Right is exercised, the holder thereof, as
such, will have no rights as a shareholder of the
Company, including, without limitation, any right to
vote or to receive dividends.
Neither the distribution of the Rights nor the
subsequent separation of the Rights on the Distribution
Date will be a taxable event for the Company or its
stockholders. Holders of Rights may, depending upon the
circumstances, recognize taxable income upon the
occurrence of a Common Stock Event. In addition,
holders of Rights may have taxable income as a result of
(i) an exchange by the Company of shares of Common Stock
for Rights as described above or (ii) certain anti-
dilution adjustments made to the terms of the Rights
after the Distribution Date. A redemption of the Rights
would be a taxable event to holders.
The Rights Agreement may be amended by the Company,
by a two-thirds vote of the Continuing Directors, at any
time prior to the Distribution Date without the approval
of the holders of the Rights. From and after the
Distribution Date, the Rights Agreement may be amended
by the Company, by a two-thirds vote of the Continuing
Directors, without the approval of the holders of the
Rights in order to cure any ambiguity, to correct or
supplement any defective or inconsistent provisions, to
change any time period for redemption or any other time
period under the Rights Agreement or to make any other
changes that do not adversely affect the interests of
the holders of the Rights (other than any Acquiring
Person or its affiliates, associates or transferees).
A copy of the Rights Agreement has been filed with
the Securities and Exchange Commission as an Exhibit to
Form 8-A/A. A copy of the Rights Agreement is available
free of charge from the Rights Agent. 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 hereby incorporated
herein by reference.
