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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------------------------------
FORM 8-A
For Registration of Certain Classes of Securities
Pursuant to Section 12(b) or 12(g) of
the Securities Exchange Act of 1934
-----------------------------------------------------
CALIBER SYSTEM, INC.
(Exact of registrant as specified in its charter)
Ohio 34-1365496
(State or other jurisdiction of (I.R.S. Employer
incorporation) Identification
Number)
3560 West Market Street
Akron, Ohio 44334-0459
(Address of principal executive (Zip Code)
offices)
If this Form relates to the If this Form relates to the
registration of a class of debt registration of a class of debt
securities and is effective upon securities and is to become effective
filing pursuant to General simultaneously with the
Instruction A(c)(1) please check effectiveness of a concurrent
the following box [] registration statement under the
Securities Act of 1933 pursuant to
General Instruction A(c)(2) please
check the following box []
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each change on which
to be so registered each class is to be registered
------------------- ------------------------------
Rights to Purchase Common Stock New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
None.
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Item 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
On August 14, 1996, the Directors of Caliber System, Inc. (the
"Company") declared a dividend distribution of one right (a "Right") for each
outstanding share of common stock of the Company ("Common Share"). The Rights
will be issued to shareholders of record at the close of business on August 26,
1996 (the "Record Date"). The terms of the Rights are set forth in a Rights
Agreement, dated August 22, 1996, between the Company and KeyBank National
Association (the "Rights Agent").
Each Right entitles the registered holder to purchase from the
Company one Common Share at a price of $120 per share (the "Purchase Price"),
subject to adjustment. The Rights will expire on August 26, 2006, unless earlier
redeemed by the Company as described below.
Until the Distribution Date (as described below), the Rights
will be evidenced by the Common Share certificates. The Rights Agreement
provides that, until the Distribution Date, the Rights will be transferred with
and only with the Common Shares. Until the Distribution Date (or earlier
redemption or expiration of the Rights), (i) new Common Share certificates
issued upon transfer or new issuance of Common Shares will contain a notation
incorporating the Rights Agreement by reference and (ii) the surrender for
transfer of any certificates for Common Shares will also constitute the transfer
of the Rights associated with the Common Shares represented by such certificate.
The Rights are not exercisable until the earlier to occur of
(i) 10 days following a public announcement by the Company that a person or
group of affiliated or associated persons (an "Acquiring Person") has acquired,
or obtained the right to acquire, beneficial ownership of 20% or more of the
outstanding Common Shares (or such later date as the Directors may specify) and
(ii) 10 days (or such later date as the Directors may specify) following the
commencement of a tender offer or exchange offer for 20% or more of such
outstanding Common Shares, (the earlier of such dates being hereinafter called
the "Distribution Date"), provided, however, that a person shall not be an
Acquiring Person (i) if such person has reported or is required to report such
ownership of less than 20% of the Common Shares then outstanding on Schedule 13G
under the Securities Exchange Act of 1934, as amended (the "Exchange Act") or
(ii) if such person has reported or is required to report such ownership on
Schedule 13D under the Exchange Act, which Schedule 13D does not state any
intention to or reserve the right to control or influence the Company or engage
in certain other actions, and upon the Company's request, such person certifies
to the Company that such person acquired Common Shares in excess of 20%
inadvertently and such person, together with its affiliates and associates,
thereafter does not acquire additional Common Shares while the beneficial owner
of 20% or more of the Common Shares outstanding. Notwithstanding the foregoing,
the term "Acquiring Person" will not include a "group" required to file a
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Schedule 13D with the Commission pursuant to Section 13(d) of the Exchange Act
(a) so long as (i) such "group" consists solely of beneficial owners of Common
Shares prior to the date of this Agreement, (ii) such "group" has not made a
public announcement or filing with the Commission which states in substance that
such "group" or any members thereof, or any Affiliate of any of the foregoing,
has (A) made or intends to make or effect any tender or exchange offer for more
than 20% of the Common Shares or merger or other business combination
transaction, or (B) commenced or intends to commence the solicitation of proxies
in favor of any such transaction or a change in a majority of the members of the
Directors, and (iii) such "group" does not beneficially own more than 25% of the
then-outstanding Common Shares or (b) which the Directors determine, after
consultation with counsel (who may be regular counsel to the Company), should
not be deemed to constitute an "Acquiring Person" hereunder.
As soon as practicable following the Distribution Date,
separate certificates evidencing the Rights (the "Rights Certificates") will be
mailed to holders of record of the Common Shares as of the close of business on
the Distribution Date and such separate Rights Certificates will thereafter
evidence the Rights.
The Purchase Price payable upon exercise of the Rights, and
the number of Common Shares or other securities or property issuable upon
exercise, 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 Shares, (ii) upon the grant to holders of the
Common Shares of certain rights, options, or warrants to subscribe for Common
Shares or convertible securities at less than the current market price of the
Common Shares, or (iii) upon the distribution to holders of the Common Shares of
evidences of indebtedness or cash (excluding regular periodic cash dividends at
a rate not in excess of 125% of the rate of the last cash dividend theretofore
paid), assets, stock (other than dividends payable in Common Shares), or of
subscription rights or warrants (other than those referred to above). With
certain exceptions, no adjustment in the Purchase Price will be required until
cumulative adjustments require an adjustment of at least 1% in such Purchase
Price.
In the event that (i) an Acquiring Person merges into the
Company and the Company's Common Shares are not changed or exchanged, (ii) an
Acquiring Person engages in one of a number of other self-dealing transactions
specified in the Rights Agreement, or (iii) any person becomes an Acquiring
Person (collectively, a "Flip-In Event"), proper provision shall be made so that
each holder of a Right will thereafter have the right to receive, upon exercise
thereof at the then current exercise price of the Right, that number of Common
Shares having a market value of two times the exercise price of the Right.
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In the event that (i) the Company engages in a merger or other
business transaction in which the Company is not the surviving corporation, (ii)
the Company engages in a merger or other business combination transaction in
which its Common Shares are changed or exchanged, or (iii) 50% or more of the
Company's assets or earning power are sold, (collectively a "Flip-Over Event";
"Flip-In Events and Flip-Over Events" are referred to collectively as
"Triggering Events"), proper provision shall be made so that 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 (or, under certain circumstances, an economically equivalent security or
securities) of the surviving, resulting or acquiring person which at the time of
such transaction would have a market value of two times the exercise price of
the Right.
Rights that are or were beneficially owned by an Acquiring
Person shall be void after the later of the Distribution Date or the first
occurrence of a Flip-In Event.
The Directors may, at their option, at any time after the
latter of the Distribution Date or the first occurrence of a Triggering Event
and prior to the time that a person or group has acquired or obtained the right
to acquire 50% or more of the outstanding Common Shares, exchange all or part of
the exercisable Rights for Common Shares at an exchange ratio of one Common
Share per Right, subject to adjustment.
No fractional shares will be issued and in lieu thereof,
payment in cash will be made based on the market price of the Common Shares on
the last trading day prior to the date of exercise.
Prior to August 26, 2006, at any time prior to the later of
(i) the Distribution Date and (ii) the date of the first occurrence of a
Triggering Event, the Directors may redeem the Rights in whole, but not in part,
at a price of $0.001 per Right, payable in cash, Common Shares, or other
consideration (the "Redemption Price"). Immediately upon the effective date of
the action of the Directors of the Company electing to redeem the Rights, the
right to exercise the Rights will terminate and the only right of the holders of
Rights will be to receive the Redemption Price.
Until a Right is exercised, the holder thereof, as such, will
have no rights as a shareholder of the Company, including, without limitation,
the right to vote or to receive dividends.
The Rights Agreement may be amended by the Company and the
Rights Agent without the approval of any holders of Rights at any time and from
time to time, provided that after the Distribution Date, the amendment will not
adversely affect the interests of holders of Rights, and no such amendment shall
decrease the Redemption Price or the period of time remaining until
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the Final Expiration Date or modify a time period relating to when Rights may be
redeemed at such time as the Rights are not then redeemable.
The Rights Agreement and the form of press release announcing the
declaration of the dividend distribution of the Rights are attached hereto as
exhibits and are incorporated herein by this reference. The foregoing
description of the Rights is as of the Record Date, does not purport to be
complete and is qualified in its entirety by reference to such exhibits.
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Item 2. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit No. Description
----------- ----------------------------------------
<S> <C> <C>
1 Form of Right Certificate (Exhibit A to
Rights Agreement filed as Exhibit 2
hereto)
2 Rights Agreement
3 Summary of Rights (Exhibit B to the
Rights Agreement filed as Exhibit 2
hereto)
4 Form of press release dated August 15,
1996.
</TABLE>
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SIGNATURE
Pursuant to the requirements of Section 12 the Securities Exchange Act of
1934, the registrant has duly caused this registration statement to be signed on
its behalf by the undersigned, thereto duly authorized.
CALIBER SYSTEM, INC.
By /s/ John P. Chandler
-------------------------------
John P. Chandler
Vice President and Treasurer
Date: August 22, 1996
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INDEX TO EXHIBITS
-----------------
<TABLE>
<CAPTION>
Sequential
Exhibit No. Description Page
- - ----------- ----------- ----------
<S> <C> <C>
1 Form of Right Certificate (Exhibit A
to Rights Agreement filed as Exhibit 2
hereto)
2 Rights Agreement
3 Summary of Rights (Exhibit B to the Rights Agreement
filed as Exhibit 2 hereto)
4 Form of press release dated August 15, 1996.
</TABLE>
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EXHIBIT 2
--------------------
CALIBER SYSTEM, INC.
and
KEYBANK NATIONAL ASSOCIATION
RIGHTS AGREEMENT
Dated August 22, 1996
--------------------
<PAGE> 2
TABLE OF CONTENTS
PAGE
PREAMBLE ....................................................1
Section 1. Certain Definitions...........................1
Section 2. Appointment of Rights Agent ..................6
Section 3. Issue of Rights Certificates .................7
Section 4. Form of Rights Certificates .................11
Section 5. Countersignature and Registration ...........12
Section 6. Transfer, Split Up, Combination,
and Exchange of Rights Certificates;
Mutilated, Destroyed, Lost, or Stolen
Rights Certificates .........................14
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights ...................15
Section 8. Cancellation of Rights Certificates .........17
Section 9. Listing of Common Shares; Transfer Taxes ....18
Section 10. Common Shares Record Date ...................20
Section 11. Adjustment of Purchase Price, Number
and Type of Shares or Number of Rights ......21
Section 12. Certificate of Adjusted Purchase
Price or Number of Shares ...................44
Section 13. Notice of Adjusted Purchase Price or
Number or Type of Shares to Holders
of Rights ...................................44
Section 14. Fractional Rights and Fractional Shares .....44
Section 15. Rights of Action ............................46
Section 16. Agreement of Rights Holders .................47
Section 17. Rights Certificate Holder Not Deemed
a Shareholder ...............................48
Section 18. Concerning the Rights Agent .................48
Section 19. Merger or Consolidation or Change
of Name of Rights Agent .....................49
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Section 20. Duties of Rights Agent ......................50
Section 21. Change of Rights Agent ......................54
Section 22. Issuance of New Rights Certificates .........56
Section 23. Redemption ..................................56
Section 24. Notice of Certain Events ....................58
Section 25. Notices .....................................59
Section 26. Supplements and Amendments ..................60
Section 27. Successors ..................................61
Section 28. Benefits of this Agreement ..................62
Section 29. Action by Directors .........................62
Section 30. Severability ................................62
Section 31. Governing Law ...............................62
Section 32. Counterparts ................................63
Section 33. Descriptive Headings ........................63
Exhibit A..................................................A-1
Exhibit B..................................................B-1
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Rights Agreement, dated August 22, 1996 ("Agreement"), between
Caliber System, Inc., an Ohio corporation (the "Company"), and KeyBank National
Association, a national bank (the "Rights Agent").
PREAMBLE
--------
The Directors of the Company have authorized and declared a
dividend consisting of one right ("Right") for each share of common stock of the
Company ("Common Share") outstanding on the close of business on August 26, 1996
(the "Record Date"), each Right representing the right to purchase one Common
Share, and have authorized the issuance of one Right with respect to each Common
Share issued between the Record Date and the Distribution Date, including
without limitation Common Shares that are hereafter issued upon conversion of
the Company's convertible securities or upon exercise of employee stock options
now existing or hereafter created, but excluding Common Shares issued upon
exercise of any Right. This Agreement sets forth the terms of the Rights.
Accordingly, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. CERTAIN DEFINITIONS. In addition to the terms
defined elsewhere herein, for purposes of this Agreement, the following terms
shall have the meanings indicated when used herein with initial capital letters:
(a) "Acquiring Person" shall mean any Person who
or which, together with all Affiliates and Associates of such
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Person, shall be the Beneficial Owner (as such terms are hereinafter defined) of
20% or more of the Common Shares then outstanding, but shall not include (i) the
Company, (ii) any Subsidiary of the Company, (iii) any employee benefit or stock
ownership plan of the Company or any Subsidiary of the Company, (iv) an entity
holding Common Shares for or pursuant to the terms of any such plan, (v) any
Person who has reported or is required to report such ownership of less than 20%
of the Common Shares then outstanding on Schedule 13G under the Exchange Act (or
any comparable or successor report), or (vi) any Person who has reported or is
required to report such ownership on Schedule 13D under the Exchange Act (or any
comparable or successor report) which Schedule 13D does not state any intention
to or reserve the right to control or influence the management or policies of
the Company or engage in any of the actions specified in Item 4 of such Schedule
(other than the disposition of the Common Shares) and, within 10 Business Days
of being requested by the Company to advise it regarding the same, certifies to
the Company that such Person acquired shares of Common Shares in excess of 20%
inadvertently or without knowledge of the terms of the Rights and who, together
with all Affiliates and Associates, thereafter does not acquire additional
Common Shares while the beneficial owner of 20% or more of the Common Shares
outstanding; PROVIDED, HOWEVER, that if the Person requested to so certify fails
to do so within 10 Business Days, then such Person shall become an Acquiring
Person immediately after such 10 Business Day period. Notwithstanding the
foregoing, the term "Acquiring Person" will
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not include a "group" required to file a Schedule 13D with the Commission
pursuant to Section 13(d) of the Exchange Act (a) so long as (i) such "group"
consists solely of beneficial owners of Common Shares prior to the date of this
Agreement, (ii) such "group" has not made a public announcement or filing with
the Commission which states in substance that such "group" or any members
thereof, or any Affiliate of any of the foregoing, has (A) made or intends to
make or effect any tender or exchange offer for more than 20% of the Common
Shares or merger or other business combination transaction, or (B) commenced or
intends to commence the solicitation of proxies in favor of any such transaction
or a change in a majority of the members of the Directors, and (iii) such
"group" does not beneficially own more than 25% of the then-outstanding Common
Shares or (b) which the Directors determine, after consultation with counsel
(who may be regular counsel to the Company), should not be deemed to constitute
an "Acquiring Person" hereunder.
(b) "Affiliate" and Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as in effect on the date hereof.
(c) A Person shall be deemed the "Beneficial
Owner" of and shall be deemed to "beneficially own" any securities:
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(i) which such person or any of such Person's
Affiliates or Associates beneficially owns, directly or
indirectly;
(ii) which such Person or any of such Person's
Affiliates or Associates has (A) the immediate or future right to
acquire pursuant to any agreement, arrangement or upon the exercise of
conversion rights, exchange rights, rights (other than these Rights),
warrants or options, or otherwise; PROVIDED, HOWEVER, that a Person
shall not be deemed the Beneficial Owner of, or to beneficially own,
securities tendered pursuant to an offer to purchase or a solicitation
of tender offers or an exchange offer made by or on behalf of such
Person or any of such Person's Affiliates or Associates until such
tendered securities are accepted for purchase or payment; or (B) the
right to vote pursuant to any agreement, arrangement or understanding;
or
(iii) which are beneficially owned, directly or
indirectly, by any other Person with which such Person or any of such
Person's Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any securities of the Company; PROVIDED, HOWEVER, that a
Person shall not be deemed the Beneficial Owner of, or to beneficially
own, any security if such Person has the right to vote such security
pursuant to an agreement, arrangement or understanding which (1) arises
solely from a revocable proxy given to such Person in response to a
public proxy or consent solicitation
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made pursuant to, and in accordance with, the applicable rules and
regulations of the Exchange Act and (2) is not also then reportable on
Schedule 13D under the Exchange Act (or any comparable or successor
report).
(d) "Business Day" shall mean any day other than
a Saturday, Sunday or a day on which banking institutions in the State of Ohio
are authorized or obligated by law or executive order to close.
(e) "Close of business" on any given date shall
mean 5:00 P.M., Eastern Time, on such date; PROVIDED, HOWEVER, that if such date
is not a Business Day it shall mean 5:00 P.M., Eastern Time, on the next
succeeding Business Day.
(f) "Common Shares" when used with reference to
the Company shall mean the Common Shares of the Company; PROVIDED that, if the
Company is the continuing or surviving corporation in a consolidation or merger
transaction, "Common Shares" when used with reference to the Company shall mean
the capital stock with the greatest aggregate voting power of the Company, or,
if the Company is a Subsidiary of another corporation or other legal entity, the
corporation or other legal entity which ultimately controls the Company. "Common
Shares" when used with reference to any corporation or other legal entity, other
than the Company, shall mean the capital stock with the greatest aggregate
voting power of such corporation or other legal entity, or, if such corporation
or other legal entity is a Subsidiary of another corporation or other legal
entity, the corporation or other legal
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entity which ultimately controls such first-mentioned corporation or other legal
entity trust.
(g) "Flip-in Event" shall mean any event
described in clauses (A), (B) or (C) of Section 11(a)(ii) hereof.
(h) "Flip-over Event" shall mean any event
described in clauses (i), (ii), or (iii) of Section 11(d) hereof.
(i) "Person" shall mean any individual, firm,
corporation, or other legal entity, and shall include any successor (by merger
or otherwise) of such entity.
(j) "Share Acquisition Date" shall mean the first
date of public announcement by the Company (by press release, filing made with
the Securities and Exchange Commission, or otherwise) that an Acquiring Person
has become such.
(k) "Subsidiary" shall mean any corporation or
other legal entity of which a majority of the voting power of the voting equity
securities or equity interests is beneficially owned by another Person.
(l) "Triggering Event" shall mean any Flip-in
Event or Flip-over Event.
Section 2. APPOINTMENT OF RIGHTS AGENT. The Company hereby
appoints the Rights Agent to act as agent for the Company and the holders of the
Rights (who, in accordance with Section 3 hereof, shall also be, prior to the
Distribution Date, the holders of the Common Shares) in accordance with the
terms and conditions hereof, and the Rights Agent hereby accepts such
appointment. The Company may from time to time act as Co-Rights Agent or appoint
such Co-Rights Agents as it may deem necessary
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or desirable, and will give notice thereof to the Rights Agent. Any actions
which may be taken by the Rights Agent pursuant to the terms of this Agreement
may be taken by any such Co-Rights Agent.
Section 3. ISSUE OF RIGHTS CERTIFICATES. (a) Until the earlier
of (i) the Close of Business on the tenth calendar day (or, unless the
Distribution Date shall have previously occurred, such later date as may be
specified by the Directors of the Company) after the Share Acquisition Date, and
(ii) the Close of Business on the tenth calendar day (or, unless the
Distribution Date shall have previously occurred, such later date as may be
specified by the Directors of the Company) after the date of the commencement of
a tender or exchange offer by any Person (other than the Company or any
Subsidiary of the Company or any employee benefit or stock ownership plan of the
Company or any entity holding Common Shares for or pursuant to the terms of any
such plan), if upon the consummation thereof such Person would be the Beneficial
Owner of 10% or more of the outstanding Common Shares (the earlier of such dates
being referred to herein as the "Distribution Date"), (A) the Rights shall be
evidenced (subject to the provisions of paragraph (B) of this Section 3) by the
certificates for Common Shares registered in the names of the record holders
thereof (which certificates for Common Shares shall also be deemed to be Rights
Certificates) and not by separate Rights Certificates, (C) the Rights shall be
transferable only in connection with the transfer of the underlying Common
Shares, and (Z) the transfer of any
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certificates evidencing Common Shares in respect of which Rights have been
issued shall also constitute the transfer of the Rights associated with the
Common Shares evidenced by such certificates. The Company shall notify the
Rights Agent of the Distribution Date and as soon as practicable after receipt
of such notice, the Rights Agent shall send, by first-class, insured, postage
prepaid mail, to each record holder of Common Shares as of the Close of Business
on the Distribution Date, at the address of such holder shown on the records of
the Company, a Rights Certificate, in substantially the form of Exhibit A hereto
(a "Rights Certificate"), evidencing one Right for each Common Share so held,
together with a notice setting forth the Purchase Price (as defined in Section 4
hereof) as in effect on the Distribution Date. After the Close of Business on
the Distribution Date, the Rights shall be evidenced solely by such Rights
Certificates.
(b) From and after the Distribution Date but
prior to the earlier of the Expiration Date or the Final Expiration Date (as
such terms are defined in Section 7 hereof), the Company shall notify the Rights
Agent of the record holder or holders of such Common Shares of the Company
issued upon the exercise of conversion rights, exchange rights, rights (other
than the Rights), warrants, or options outstanding and held by any Person on the
Distribution Date (whether any such right is then-exercisable or exercisable
only after the passage of time). As soon as practicable after receipt of such
notice, the Rights Agent shall send, by first-class, insured, postage prepaid
mail, to each such holder, at the address of such holder shown on the
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records of the Company, a Rights Certificate evidencing one Right for each
Common Share so held.
(c) Any Rights Certificate issued pursuant to
this Section 3 that represents Rights beneficially owned by an Acquiring Person
or any Associate or Affiliate thereof and any Rights Certificate issued at any
time upon the transfer of any Rights to an Acquiring Person or any Associate or
Affiliate thereof, and any Rights Certificate issued pursuant to Sections 6 or
11 hereof upon transfer, exchange, replacement, or adjustment of any other
Rights Certificate referred to in this sentence, shall be subject to and contain
the following legend or such similar legend as the Company may deem appropriate
and as is 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, or
relating to any transaction reporting system, on which the Common Shares or the
Rights may from time to time be listed or quoted, or to conform to usage:
The Rights represented by this Rights Certificate are or were
beneficially owned by a Person who was an Acquiring Person or an
Affiliate or an Associate of an Acquiring Person as defined in
the Rights Agreement, dated August 22, 1996, as amended from
time to time, between the Company and the Rights Agent named
therein (the "Rights Agreement"). This Rights Certificate and
the Rights represented hereby may become null and void in the
circumstances specified in the Rights Agreement.
(d) On the Record Date or as soon as practicable
thereafter, the Company shall send a copy of a Summary of Rights
to purchase Common Shares, in substantially the form attached
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hereto as Exhibit B (the "Summary of Rights"), by first-class, postage prepaid
mail, to each record holder of Common Shares as of the Record Date, at the
address of such holder shown on the shareholder list of the Company as of the
Record Date. With respect to certificates for Common Shares outstanding as of
the Record Date, until the Distribution Date, the Rights shall be evidenced by
such certificates for Common Shares registered in the names of the holders
thereof together with a copy of the Summary of Rights. Until the Distribution
Date (or earlier Expiration Date or Final Expiration Date), the surrender for
transfer of any certificate for Common Shares outstanding on the Record Date,
with or without a copy of the Summary of Rights attached thereto, shall also
constitute the transfer of the Rights associated with the Common Shares
represented thereby.
(e) Certificates for Common Shares issued,
whether upon original issuance, upon conversion of the Company's convertible
securities, upon exercise of stock options, or upon surrender for transfer or
exchange, after the Record Date but prior to the earliest of the Distribution
Date or the Expiration Date or the Final Expiration Date (as such terms are
defined in Section 7 hereof), shall have stamped on, impressed on, printed on,
written on, or otherwise affixed to them the following legend or such similar
legend as the Company may deem appropriate and as is 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, or
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relating to any transaction reporting system, on which the Common Shares or the
Rights may from time to time be listed or quoted, or to conform to usage:
This Certificate also evidences and entitles the holder hereof
to certain Rights as set forth in a Rights Agreement, dated
August 22, 1996, as amended from time to time, between Caliber
System, Inc. (the "Company") and KeyBank National Association,
(the "Rights Agreement"), the terms of which are hereby
incorporated herein by reference and a copy of which is on file
at the principal executive offices of the Company. Under certain
circumstances, as set forth in the Rights Agreement, such Rights
may be redeemed, may expire, may be amended, or may be evidenced
by separate certificates and no longer be evidenced by this
Certificate. Under certain circumstances, Rights issued to, or
held by, any Person who is, was, or becomes an Acquiring Person
or any Affiliate or Associate thereof (as such terms are defined
in the Rights Agreement) and any subsequent holder of such
Rights may become null and void. The Company will mail to the
holder of this Certificate a copy of the Rights Agreement
without charge within five business days after receipt of a
written request therefor.
Until the Distribution Date, the Rights associated with the Common Shares
represented by certificates containing the legend described above shall be
evidenced by such certificates alone, and the surrender for transfer of any
certificates shall also constitute the surrender for transfer of the Rights
associated with the Common Shares represented thereby.
Section 4. FORM OF RIGHTS CERTIFICATES. The Rights Certificates
(and the certificate and forms of election to purchase Common Shares and of
assignment to be printed on the reverse thereof) shall be substantially the same
as Exhibit A hereto with such changes, marks of identification, or designation
and such legends, summaries, or endorsements printed
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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 securities exchange or relating to any transaction
reporting system on which the Common Shares or the Rights may from time to time
be listed or quoted, or to conform to usage, or to reflect any amendment or
change herein or of the rights as hereafter provided. Subject to the provisions
of Sections 11 and 22 hereof, the Rights Certificates, whenever issued, shall be
dated as of the Record Date, and on their face shall entitle the holders thereof
to purchase such number of Common Shares as shall be set forth therein at the
price per share set forth therein (the "Purchase Price"), but the number of such
shares and the Purchase Price shall be subject to adjustment as provided in this
Agreement.
Section 5. COUNTERSIGNATURE AND REGISTRATION.
(a) The Rights Certificates shall be executed on
behalf of the Company by its Chairman of the Board, President, or any Vice
President, either manually or by facsimile signature, and have affixed thereto
the Company's seal or a facsimile thereof which shall be attested by the
Secretary or an Assistant Secretary of the Company, either manually or by
facsimile signature. The Rights Certificates shall be manually countersigned by
the Rights Agent and shall not be valid for any purpose unless so countersigned.
In case any officer of the Company who shall have signed any of the Rights
Certificates
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shall cease to be such officer of the Company before countersignature by the
Rights Agent and issuance and delivery by the Company, such Rights Certificates,
nevertheless, may be countersigned by the Rights Agent, and issued and delivered
by the Company with the same force and effect as though the person who signed
such Rights Certificates had not ceased to be such officer of the Company; and
any Rights Certificate may be signed on behalf of the Company by any person who,
at the actual date of the execution of such Rights Certificate, shall be a
proper officer of the Company to sign such Rights Certificate, although at the
date of the execution of this Rights Agreement any such person was not such an
officer.
(b) Following the Distribution Date, the Rights
Agent shall keep or cause to be kept, at one of its offices in Cleveland, Ohio
and at such other offices 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, or relating to any transaction reporting
system, on which the Common Shares or the Rights may from time to time be listed
or quoted, books for registration and transfer of the Rights Certificates issued
hereunder. Such books shall show the names and addresses of the respective
holders of the Rights Certificates, the number of Rights evidenced on its face
by each of the Rights Certificates, and the date of each of the Rights
Certificates.
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Section 6. TRANSFER, SPLIT UP, COMBINATION, AND EXCHANGE OF
RIGHTS CERTIFICATES; MUTILATED, DESTROYED, LOST, OR STOLEN RIGHTS CERTIFICATES.
(a) Subject to the provisions of Section 14 hereof, at any time after the close
of business on the Distribution Date, and at or prior to the close of business
on the earlier of the Expiration Date or the Final Expiration Date, any Rights
Certificate or Certificates may be transferred, split up, combined, or exchanged
for another Rights Certificate or Rights Certificates entitling the registered
holder to purchase a like number of Common Shares as the Rights Certificate or
Rights Certificates surrendered then entitled such holder to purchase. Any
registered holder desiring to transfer, split up, combine, or exchange any
Rights Certificate shall make such request in writing delivered to the Rights
Agent, and shall surrender the Rights Certificate or Rights Certificates to be
transferred, split up, combined, or exchanged at the principal office of the
Rights Agent. Thereupon the Rights Agent shall countersign and deliver to the
Person entitled thereto a Rights Certificate or Rights Certificates, as the case
may be, as so requested. The Company may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any
transfer, split up, combination, or exchange of Rights Certificates.
(b) Upon receipt by the Company and the Rights
Agent of evidence reasonably satisfactory to them of the loss, theft,
destruction, or mutilation of a Rights Certificate, and, in case of loss, theft,
or destruction, of indemnity or security
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reasonably satisfactory to them, and reimbursement to the Company and the Rights
Agent of all reasonable expenses incidental thereto, and upon surrender to the
Rights Agent and cancellation of the Rights Certificate if mutilated, the
Company shall make and deliver a new Rights Certificate of like tenor to the
Rights Agent for delivery to the registered owner in lieu of the Rights
Certificate so lost, stolen, destroyed, or mutilated.
Section 7. EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION DATE
OF RIGHTS. (a) The registered holder of any Rights Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein) in whole or in
part at any time after the Distribution Date upon surrender of the Rights
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
in Cleveland, Ohio, and at such other offices 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, or relating to any transaction
reporting system, on which the Common Shares or the Rights may from time to time
be listed or quoted, together with an amount in cash, in lawful money of the
United States of America by certified check or bank draft payable to the order
of the Company, equal to the Purchase Price for each Common Share as to which
the Rights are exercised, or, if applicable, the exercise price per Right
specified in Sections 11(a)(ii) or 11(d) hereof, as the case may be, at or prior
to the Close of Business on the earliest of (i) August 26,
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2006 (the "Final Expiration Date"), (ii) the date on which the Rights are
redeemed as provided in Section 23 hereof, or (iii) the time at which all
exercisable Rights are exchanged as provided in Section 11(o) hereof (the
earliest of such dates being herein referred to as the "Expiration Date").
(b) The Purchase Price for each Common Share
pursuant to the exercise of a Right shall be $120 as of August 26, 1996, and
shall be subject to adjustment from time to time as provided in Section 11
hereof.
(c) Upon receipt of a Rights Certificate
representing exercisable Rights, with the form of election to purchase duly
executed, accompanied by payment of the Purchase Price for the Common Shares to
be purchased and an amount equal to any applicable transfer tax in cash, or by
certified check or bank draft payable to the order of the Rights Agent, the
Rights Agent shall thereupon promptly (i) request the Company to instruct the
transfer agent to deliver the Common Shares (or make available, if the Rights
Agent is the transfer agent) certificates for the number of Common Shares to be
purchased and the Company hereby irrevocably authorizes its transfer agent to
comply with all such requests, (ii) when appropriate, requisition from the
Company the amount of cash to be paid in lieu of fractional shares in accordance
with Section 11(o) or Section 14 hereof or in lieu of the issuance of Common
Shares in accordance with Sections 11(a)(iii) or 11(d) hereof, (iii) after
receipt of such certificates, cause the same to be delivered to or upon the
order of the registered holder of such Rights
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Certificate, registered in such name or names as may be designated by such
holder, and (iv) when appropriate, after receipt promptly deliver such cash to
or upon the order of the registered holder of such Rights Certificate.
(d) In case the registered holder of any Rights
Certificate shall exercise less than all the Rights evidenced thereby, a new
Rights Certificate evidencing Rights equivalent to the Rights remaining
unexercised shall be issued by the Rights Agent to the registered holder of such
Rights Certificate or to his duly authorized assigns, subject to the provisions
of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to
the contrary, neither the Rights Agent nor the Company shall be obligated to
undertake any action with respect to a registered holder of Rights upon the
occurrence of any purported exercise as set forth in this Section 7 unless the
certificate contained in the form of election to purchase on the reverse side of
the Rights Certificate surrendered for such exercise shall have been completed
and signed by the registered holder thereof.
Section 8. CANCELLATION OF RIGHTS CERTIFICATES. All
Rights Certificates surrendered for the purpose of exercise,
transfer, split up, combination, or exchange shall, if
surrendered to the Company or to any of its stock transfer
agents, be delivered to the Rights Agent for cancellation or in
cancelled form, or, if surrendered to the Rights Agent, shall be
cancelled by it, and no Rights Certificates shall be issued in
lieu thereof except as expressly permitted by any of the
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provisions of this Agreement. The Company shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall so cancel and retire,
any other Rights Certificate purchased or acquired by the Company otherwise than
upon the exercise thereof. The Rights Agent shall deliver all cancelled Rights
Certificates to the Company or shall, at the written request of the Company,
destroy such cancelled Rights Certificates, and in such case shall deliver a
certificate of destruction thereof to the Company.
Section 9. LISTING OF COMMON SHARES; TRANSFER TAXES. (a) So long
as the Company's Common Shares are listed on a national securities exchange, the
Company shall use its reasonable best efforts to cause, from and after such time
as the Rights become exercisable, all Common Shares issuable upon exercise of
the Rights to be listed on such exchange upon official notice of issuance.
(b) The Company shall take all such action as may
be necessary to ensure that all Common Shares delivered upon exercise of Rights
shall be, at the time of delivery of the certificates for such shares (subject
to payment of the Purchase Price, if required), duly and validly authorized and
issued and fully paid and nonassessable shares.
(c) The Company shall 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 Rights Certificates or of
any Common Shares upon the exercise of Rights. The Company shall not, however,
be required
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to pay any transfer tax which may be payable in respect of any transfer or
delivery of Rights Certificates to a Person other than, or the issuance or
delivery of certificates for the Common Shares in a name other than that of, the
registered holder of the Rights Certificate evidencing Rights surrendered for
exercise, or to issue or deliver any certificates for Common Shares upon the
exercise of any Rights until any such tax shall have been paid (any such tax
being payable by the holder of such Rights Certificate at the time of surrender)
or until it has been established to the Company's satisfaction that no such tax
is due and shall not have any liability in respect of any income tax imposed
upon any Person in respect of any Right.
(d) The Company shall use its reasonable best
efforts (i) to file on an appropriate form, as soon as practicable following the
later of the first occurrence of a Triggering Event or the Distribution Date, a
registration statement under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the securities issuable upon exercise of the
Rights, (ii) to cause such registration statement to become effective as soon as
practicable after such filing, and (iii) to cause such registration statement to
remain effective (with a prospectus at all times meeting the requirements of the
Securities Act) until the earlier of (A) the date as of which the Rights are no
longer exercisable for such securities and (B) the Expiration Date. The Company
shall also take such action as may be appropriate under, or to ensure compliance
with, the securities or "blue sky" laws of the
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various states in connection with the exercisability of the Rights. The Company
may temporarily suspend, for a period of time after the date set forth in clause
(i) of the first sentence of this Section 9(d), the exercisability of the Rights
in order to prepare and file such registration statement and 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, as well as a public announcement at such time as the suspension is no
longer in effect. In addition, if the Company shall determine that a
registration statement should be filed under the Securities Act or any state
securities laws following the Distribution Date, the Company may temporarily
suspend the exercisability of the Rights in each relevant jurisdiction until
such time as a registration statement has been declared effective and, upon any
such suspension, the Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended, as well as a public
announcement at such time as the suspension is no longer in effect.
Notwithstanding anything in this Agreement to the contrary, the Rights shall not
be exercisable in any jurisdiction if the requisite registration or
qualification in such jurisdiction shall not have been effected or the exercise
of the Rights shall not be permitted under applicable law.
Section 10. COMMON SHARES RECORD DATE. Each Person in
whose name any certificate for Common Shares is issued upon the
exercise of Rights shall for all purposes be deemed to have
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become the holder of record of the Common Shares represented thereby on, and
such certificate shall be dated, the date upon which the Rights Certificate
evidencing such Rights was duly surrendered and payment of the Purchase Price
(and any applicable transfer taxes) was made; PROVIDED, HOWEVER, that if the
date of such surrender and payment is a date upon which the Common Shares
transfer books of the issuer of the Common Shares are closed, such Person shall
be deemed to have become the record holder of such Common Shares on, and such
certificate shall be dated, the next succeeding Business Day on which such
Common Shares transfer books are open. Prior to the exercise of the Rights
evidenced thereby, the holder of a Rights Certificate shall not be entitled to
any rights of a shareholder of the Company with respect to shares for which the
Rights shall be exercisable, including without limitation the right to vote, to
receive dividends or other distributions, or to exercise any preemptive rights,
and shall not be entitled to receive any notice of any proceedings of the
Company, except as provided in this Agreement.
Section 11. ADJUSTMENT OF PURCHASE PRICE, NUMBER AND TYPE OF
SHARES OR NUMBER OF RIGHTS. The Purchase Price, the number and type of Common
Shares covered by each Right, and the number of Rights outstanding are subject
to adjustment from time to time as provided in this Section 11.
(a)(i) In the event that the Company shall on or at any
time after the date of this Agreement (A) declare a dividend on the
Common Shares payable in Common Shares,
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<PAGE> 25
(B) subdivide the outstanding Common Shares, (C) combine the outstanding
Common Shares into a smaller number of shares, or (D) issue any shares
of its capital stock in a reclassification of the Common Shares
(including any such reclassification in connection with a consolidation
or merger in which the Company is the continuing or surviving
corporation), the Purchase Price in effect at the time of the record
date for such dividend or of the effective date of such subdivision,
combination, or reclassification, and the number and type of shares of
capital stock issuable on such date, shall be proportionately adjusted
so that the holder of any Right exercised after such time shall be
entitled to receive the aggregate number and kind of shares of capital
stock which, if such Right had been exercised immediately prior to such
date and at a time when the Common Shares transfer books of the Company
were open, such holder would have owned upon such exercise and been
entitled to receive by virtue of such dividend, subdivision,
combination, or reclassification. If an event occurs which would require
an adjustment under both this Section 11(a)(i) and Section 11(a)(ii)
hereof or Section 11(d) hereof, the adjustment provided for in this
Section 11(a)(i) shall be in addition to, and shall be made prior to,
any adjustment required pursuant to Section 11(a)(ii) or Section 11(d)
hereof.
(ii) Subject to Section 11(o) hereof, in the
event that
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<PAGE> 26
(A) any Acquiring Person or any Associate or 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, other than in a transaction subject to Section
11(d) hereof, (2) merge or otherwise combine with any Subsidiary
of the Company, (3) in one or more transactions (other than in
connection with the exercise or exchange of Rights or the
exercise or conversion of securities exercisable for or
convertible into shares of any class of capital stock of the
Company or any of its Subsidiaries) transfer any assets to the
Company or any Subsidiary of the Company in exchange (in whole
or in part) for shares of any class of capital stock of the
Company or any Subsidiary of the Company or for securities
exercisable for or convertible into shares of any class of
capital stock of the Company or any Subsidiary of the Company,
or otherwise obtain from the Company or any Subsidiary of the
Company, with or without consideration, any additional shares of
any class of capital stock of the Company or any Subsidiary of
the Company or securities exercisable for or convertible into
shares of any class of capital stock of the Company or of any
Subsidiary of the Company (other than as part of a pro rata
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distribution to all holders of such shares of any class of
capital stock of the Company or any Subsidiary of the Company),
(4) sell, purchase, lease, exchange, mortgage, pledge, transfer,
or otherwise dispose (in one or more transactions), to, from,
with, or of, as the case may be, the Company or any Subsidiary
of the Company, other than in a transaction subject to Section
11(d) hereof, assets, including securities, on terms and
conditions less favorable to the Company than the Company would
be able to obtain in arm's-length negotiation with an
unaffiliated third party, (5) receive any compensation from the
Company or any Subsidiary of the Company other than compensation
for full-time employment as a regular employee at rates in
accordance with the Company's (or its Subsidiaries') past
practices, or (6) receive the benefit, directly or indirectly
(except proportionately as a shareholder), of any loans,
advances, guarantees, pledges, or other financial assistance or
any tax credits or other tax advantage provided by the Company
or any Subsidiary of the Company;
(B) during such time as there is an Acquiring Person,
there shall be any reclassification of securities (including any
reverse stock split), recapitalization of the Company, or any
merger or consolidation of the Company with any Subsidiary of
the Company, or any other transaction or series of
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<PAGE> 28
transactions involving the Company or any Subsidiary of the
Company (whether or not with or into or otherwise involving an
Acquiring Person) other than a transaction subject to Section
11(d) hereof, 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 of
securities exercisable for or convertible into equity securities
of the Company or any Subsidiary of the Company which is
directly or indirectly beneficially owned by any Acquiring
Person or any Associate or Affiliate of any Acquiring Person; or
(C) any Person (other than the Company or any
Subsidiary of the Company or any employee benefit or stock
ownership plan of the Company or any entity holding Common
Shares for or pursuant to the terms of any such plan) who or
which, together with all Affiliates and Associates of such
Person, shall at any time after the date of this Agreement,
become an Acquiring Person;
then, and in each such case, the Company shall make adjustments in the terms of
the Rights so that each holder of a Right, except as provided below, shall
thereafter have a right to receive, upon exercise thereof in accordance with the
terms of this Agreement, at an exercise price per Right equal to the product of
the then-current Purchase Price multiplied by the number of Common Shares for
which a Right was exercisable
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immediately prior to the first occurrence of a Triggering Event, such number of
Common Shares as shall equal the result obtained by (x) multiplying the
then-current Purchase Price by the then number of Common Shares for which a
Right was exercisable immediately prior to the first occurrence of a Triggering
Event and dividing that product by (y) 50% of the current per share market price
of the Common Shares (determined pursuant to Section 11(e) hereof) on the date
of the first occurrence of a Triggering Event. Notwithstanding anything in this
Agreement to the contrary, from and after the later of the Distribution Date and
the first occurrence of a Flip-in Event, (1) any Rights that are or were
acquired or beneficially owned by any Acquiring Person (or any Affiliate or
Associate of such Acquiring Person) shall be void and any holder of such Rights
shall thereafter have no right to exercise such Rights under any provision of
this Agreement, (2) no Rights Certificate shall be issued pursuant to this
Agreement that represents Rights beneficially owned by an Acquiring Person or
any Affiliate or Associate thereof, (3) no Rights Certificate shall be issued at
any time upon the transfer of any Rights to an Acquiring Person or any Affiliate
or Associate thereof or to any nominee of such Acquiring Person or Affiliate or
Associate thereof, and (4) any Rights Certificate delivered to the Rights Agent
for transfer to an Acquiring Person or any Affiliate or Associate thereof shall
be cancelled.
(iii) Upon the occurrence of a Flip-in Event, if there
shall not be sufficient authorized but unissued Common
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<PAGE> 30
Shares or issued Common Shares held in treasury to permit the exercise
in full of the Rights in accordance with subparagraph (ii), the
Directors of the Company shall use their best efforts promptly to
authorize and, subject to the provisions of Section 9(d) hereof, make
available for issuance additional Common Shares; PROVIDED, HOWEVER, that
if at any time after 90 calendar days after the first occurrence of a
Flip-in Event, there shall not be sufficient Common Shares available for
issuance upon the exercise of a Right, then the Company shall deliver,
upon the surrender of such Right and without requiring payment of the
Purchase Price, Common Shares (to the extent available), and then cash
(to the extent permitted by applicable law and any agreements or
instruments to which the Company is a party in effect immediately prior
to the first occurrence of any Flip-in Event), which Common Shares and
cash shall have an aggregate value equal to the excess of (1) the
aggregate current per share market value of all the Common Shares
issuable in accordance with subsection (ii) of this Section 11(a) upon
the exercise of a Right (the "Exercise Value") over (2) the product of
the then-current Purchase Price multiplied by the number of Common
Shares for which a Right was exercisable immediately prior to the first
occurrence of a Triggering Event. To the extent that any legal or
contractual restrictions prevent the Company from paying the full amount
of cash payable in accordance with the foregoing sentence, the Company
shall pay to holders of the Rights as
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<PAGE> 31
to which such payments are being made all amounts which are not then
restricted on a pro rata basis. The Company shall continue to make
payments on a pro rata basis as funds become available until such
payments have been paid in full.
(b) In the event that the Company shall fix a
record date for the issuance of rights, options, or warrants to all holders of
Common Shares entitling them to subscribe for or purchase Common Shares (or
securities convertible into Common Shares) at a price per Common Share (or
having a conversion price per Common Share, if a security convertible into
Common Shares) less than the current per share market price of the Common Shares
(as defined in Section 11(e) hereof) on such record date, the Purchase Price to
be in effect after such record date shall be determined by multiplying the
Purchase Price in effect immediately prior to such record date by a fraction,
the numerator of which shall be the number of Common Shares outstanding on such
record date plus the number of Common Shares which the aggregate offering price
of the total number of Common Shares so to be offered (and/or the aggregate
initial conversion price of the convertible securities so to be offered) would
purchase at such current market price and the denominator of which shall be the
number of Common Shares outstanding on such record date plus the number of
additional Common Shares to be offered for subscription or purchase (or into
which the convertible securities so to be offered are initially convertible). In
case such subscription price may be paid in a consideration part or all of which
shall be in a form other than
28
<PAGE> 32
cash, the value of such consideration shall be as determined in good faith by
the Directors of the Company, whose determination shall be described in a
statement filed with the Rights Agent and shall be conclusive for all purposes.
Common Shares owned by or held for the account of the Company shall not be
deemed outstanding for the purpose of any such computation. Such adjustment
shall be made successively whenever such a record date is fixed; and in the
event that such rights, options, or warrants are not so issued, the Purchase
Price shall be adjusted to be the Purchase Price which would then be in effect
if such record date had not been fixed.
(c) In the event that the Company shall fix a
record date for the making of a distribution to all holders of the Common Shares
(including any such distribution made in connection with a consolidation or
merger in which the Company is the continuing or surviving corporation) of
evidences of indebtedness, cash (other than a regular periodic cash dividend at
a rate not in excess of 125% of the rate of the last cash dividend theretofore
paid), assets, stock (other than a dividend payable in Common Shares), or
subscription rights, options, or warrants (excluding those referred to in
Section 11(b) hereof), the Purchase Price to be in effect after such record date
shall be determined by multiplying the Purchase Price in effect immediately
prior to such record date by a fraction, the numerator of which shall be the
current per share market price of the Common Shares (as defined in Section 11(e)
hereof) on such record date, less the fair market value (as determined in
29
<PAGE> 33
good faith by the Directors of the Company, whose determination shall be
described in a statement filed with the Rights Agent and shall be conclusive for
all purposes) of the portion of the assets or evidences of indebtedness so to be
distributed (in the case of regular periodic cash dividends at a rate in excess
of 125% of the rate of the last cash dividend theretofore paid, only that
portion in excess of 125% of such rate) or of such subscription rights, options,
or warrants applicable to one Common Share and the denominator of which shall be
such current per share market price of the Common Shares. Such adjustments shall
be made successively whenever such a record date is fixed; and in the event that
such distribution is not so made, the Purchase Price shall again be adjusted to
be the Purchase Price which would then be in effect if such record date had not
been fixed.
(d) In the event that, following the Share
Acquisition Date, directly or indirectly, (i) the Company shall consolidate
with, or merge with or into, any Person and the Company shall not be the
continuing or surviving corporation of such merger or consolidation, (ii) any
Person shall consolidate with the Company, or merge with or into the Company,
and the Company shall not be the continuing or surviving corporation of such
merger or consolidation and, in connection with such merger or consolidation,
all or part of the Common Shares shall be changed into or exchanged for stock or
other securities of such other Person or cash or any other property, or (iii)
the Company shall sell or otherwise transfer (or one or more Subsidiaries of
30
<PAGE> 34
the Company shall sell or otherwise transfer), in one or more transactions,
assets or earning power (including without limitation securities creating any
obligation on the part of the Company and/or any Subsidiary of the Company)
aggregating more than 50% of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any Person or Persons, then, and in each such
case, the Company shall make adjustments in the terms of the Rights so that (A)
each holder of a Right (except as otherwise provided herein) shall thereafter
have the right to receive, upon the exercise thereof in accordance with the
terms of this Agreement at an exercise price per Right equal to the product of
the then-current Purchase Price multiplied by the number of Common Shares for
which a Right was exercisable immediately prior to the first occurrence of a
Triggering Event, such number of validly authorized and issued, fully paid,
nonassessable, and freely tradeable Common Shares of the Issuer (as such term is
defined below), free and clear of any liens, encumbrances, and other adverse
claims and not subject to any rights of call or first refusal, as shall be equal
to the result obtained by (x) multiplying the then-current Purchase Price by the
number of Common Shares for which a Right is exercisable immediately prior to
the first occurrence of a Triggering Event and dividing that product by (y) 50%
of the current per share market price of the Common Shares of the Issuer
(determined pursuant to Section 11(e) hereof) on the date of consummation of
such Flip-over Event; (B) the Issuer shall thereafter be liable for, and shall
assume, by virtue of such Flip-over Event, all
31
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the obligations and duties of the Company pursuant to this Agreement; (C) the
term "Company" shall thereafter be deemed to refer to the Issuer; and (D) the
Issuer shall take such steps (including without limitation the reservation of a
sufficient number of its Common Shares to permit the exercise of all outstanding
Rights) 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 possible, in relation to its Common Shares thereafter deliverable upon
the exercise of the Rights. For purposes of this Section 11(d), "Issuer" shall
mean (i) in the case of any Flip-over Event described in Sections 11(d)(i) or
(ii) above, the Person that is the continuing, surviving, resulting or acquiring
Person (including the Company as the continuing or surviving corporation of a
transaction described in Section 11(d)(ii) above), and (ii) in the case of any
Flip-over Event described in Section 11(d)(iii) above, the Person that is the
party receiving the greatest portion of the assets or earning power (including
without limitation securities creating any obligation on the part of the Company
and/or any of its Subsidiaries) transferred pursuant to such transaction or
transactions; provided, however, that, in any such case, (A) if (1) no class of
equity security of such Person is, at the time of such merger, consolidation, or
transaction and has been continuously over the preceding 12-month period,
registered pursuant to Section 12 of the Exchange Act, and (2) 20% or more of
the voting power of the voting equity securities or equity
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interests of such Person is beneficially owned, directly or indirectly, by
another Person, a class of equity security of which is and has been so
registered, the term "Issuer" shall mean such other Person; and (B) in case 20%
or more of the voting power of the voting equity securities or equity interests
of such Person is beneficially owned, directly or indirectly, by more than one
Person, a class of equity security of two or more of which are and have been so
registered, the term "Issuer" shall mean whichever of such Persons is the issuer
of the equity security having the greatest aggregate market value.
Notwithstanding the foregoing, if the Issuer in any of the Flip-in Events listed
above is not a corporation or other legal entity having outstanding equity
securities (including without limitation a business trust), then, and in each
such case, if the Issuer is directly or indirectly wholly owned by a corporation
or other legal entity having outstanding equity securities (including without
limitation a business trust), then all references to Common Shares of the Issuer
shall be deemed to be references to the Common Shares of the corporation or
other legal entity having outstanding equity securities (such as, without
limitation, a business trust) which ultimately controls such Person, and if
there is no such corporation or other legal entity having outstanding equity
securities, (A) proper provision shall be made so that the Issuer shall create
or otherwise make available for purposes of the exercise of the Rights in
accordance with the terms of this Agreement a type or types of security or
securities having a fair market value at
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least equal to the economic value of Common Shares which each holder of a Right
would have been entitled to receive if the Issuer had been a corporation or
other legal entity having outstanding equity securities (such as, without
limitation, a business trust), and (B) all other provisions of this Agreement
shall apply to the Issuer as if such securities were Common Shares. The Company
shall not consummate any Flip-over Event unless the Issuer shall have a
sufficient number of authorized Common Shares (or other securities as
contemplated above) which have not been issued or reserved for issuance to
permit the exercise in full of the Rights in accordance with this Section 11(d)
and unless prior to such consummation the Company and the Issuer shall have
executed and delivered to the Rights Agent a supplemental agreement providing
for the terms set forth in this Section 11(d) and further providing that as
promptly as practicable after the consummation of any Flip-over Event, the
Issuer shall:
(i) prepare and file a registration statement under the
Securities Act with respect to the Rights and the securities
issuable upon exercise of the Rights on an appropriate form, and
use its best efforts to cause such registration statement to (A)
become effective as soon as practicable after such filing and
(B) remain effective (with a prospectus at all times meeting the
requirements of the Securities Act) until the Expiration Date;
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(ii) take all 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; and
(iii) deliver to holders of the Rights historical
financial statements for the Issuer and each of its Affiliates
which comply in all respects with the requirements for
registration on Form 10 under the Exchange Act.
The provisions of this Section 11(d) shall similarly apply to successive
mergers, consolidations, sales, or other transactions. In the event that a
Flip-over Event occurs at any time after the occurrence of a Flip-in Event, the
Rights which have not theretofore been exercised shall thereafter become
exercisable in the manner described in this Section 11(d).
(e) For the purpose of any computation hereunder,
the "current per share market price" of Common Shares on any date shall be
deemed to be the average of the daily closing prices per share of such Common
Shares for the 30 consecutive Trading Days (as such term is hereinafter defined)
immediately prior to such date; PROVIDED, HOWEVER, that in the event that the
current per share market price of the Common Shares is determined during a
period following the announcement by the issuer of such Common Shares of (i) a
dividend or distribution on such Common Shares payable in such Common Shares or
securities convertible into such Common Shares or (ii) any subdivision,
combination, or reclassification of such Common
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Shares, and prior to the expiration of 30 Trading Days after the ex-dividend
date for such dividend or distribution or the record date for such subdivision,
combination, or reclassification, then, and in each such case, the "current
market price" shall be appropriately adjusted to take into account ex-dividend
trading or to reflect the current market price per Common Share equivalent. The
closing price for each day shall be the last sale price, regular way, or, in
case no such sale takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange or, if the Common Shares are
not listed or admitted to trading on the New York Stock Exchange, as reported in
the principal consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on which the
Common Shares are listed or admitted to trading or, if the Common Shares are not
listed or admitted to trading on any national securities exchange, the last
quoted price or, if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by the National Association
of Securities Dealers, Inc. Automated Quotation System ("NASDAQ") or such other
system then in use, or, if on any such date the Common Shares are not quoted by
any such organization, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in the Common Shares
selected by the Directors of the
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Company. The term "Trading Day" shall mean any day on which the principal
national securities exchange on which the Common Shares are listed or admitted
to trading is open for the transaction of business or, if the Common Shares are
not listed or admitted to trading on any national securities exchange, a Monday,
Tuesday, Wednesday, Thursday or Friday on which banking institutions in the
State of New York are not authorized or obligated by law or executive order to
close. If the Common Shares are not publicly held or not so listed or traded or
not the subject of available bid and asked quotes, "current per share market
price" shall mean the fair value per share as determined in good faith by the
Directors of the Company, whose determination shall be described in a statement
filed with the Rights Agent and shall be conclusive for all purposes.
(f) Except as set forth below, no adjustment in
the Purchase Price shall be required unless such 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(f) 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 thousandth of a share as the case may be. Notwithstanding the first
sentence of this Section 11(f), any adjustment required by this Section 11 shall
be made no later than the earlier of (i) three years from the date of the
transaction which requires such adjustment and (ii) the date of the expiration
of the right to exercise any Rights.
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(g) If as a result of an adjustment made pursuant
to Section 11(a) hereof, the holder of any Right thereafter exercised shall
become entitled to receive any shares of capital stock of the Company other than
Common Shares, thereafter the number of such other shares so receivable upon
exercise of any Right shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the Common Shares contained in Section 11 hereof and the provisions
of Sections 7, 9, 10, and 14 hereof with respect to the Common Shares shall
apply on like terms to any such other shares.
(h) All Rights originally issued by the Company
subsequent to any adjustment made to the Purchase Price hereunder shall evidence
the right to purchase, at the adjusted Purchase Price, the number of Common
Shares purchasable from time to time hereunder upon exercise of the Rights, all
subject to further adjustment as provided herein.
(i) Unless the Company shall have exercised its
election as provided in Section 11(j) hereof, upon each adjustment of the
Purchase Price as a result of the calculations made in Sections 11(b) and (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 Common Shares (calculated to the nearest
thousandth) obtained by (i) multiplying (A) the number of Common Shares covered
by a Right immediately prior to this adjustment by (B) the Purchase Price in
effect immediately prior
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to such adjustment of the Purchase Price, and (ii) dividing the product so
obtained by the Purchase Price in effect immediately after such adjustment of
the Purchase Price.
(j) The Company may elect, on or after the date
of any adjustment of the Purchase Price, to adjust the number of Rights in
substitution for any adjustment in the number of Common Shares purchasable upon
the exercise of a Right. Each of the Rights outstanding after such adjustment of
the number of Rights shall be exercisable for the number of Common Shares for
which a Right was exercisable immediately prior to such adjustment. Each Right
held of record prior to such adjustment of the number of Rights shall become
that number of Rights (calculated to the nearest thousandth) obtained by
dividing the Purchase Price in effect immediately prior to adjustment of the
Purchase Price by the Purchase Price in effect immediately after adjustment of
the Purchase Price. The Company shall make a public announcement of its election
to adjust the number of Rights, indicating the record date for the adjustment
and, if known at the time, the amount of the adjustment to be made. This record
date may be the date on which the Purchase Price is adjusted or any day
thereafter, but, if the Rights Certificates have been issued, shall be at least
10 calendar days later than the date of the public announcement. If Rights
Certificates have been issued, upon each adjustment of the number of Rights
pursuant to this Section 11(j), the Company shall, as promptly as practicable,
cause to be distributed to holders of record of Rights Certificates on such
record date Rights Certificates
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<PAGE> 43
evidencing, subject to Section 14 hereof, the additional Rights to which such
holders shall be entitled as a result of such adjustment or, at the option of
the Company, shall cause to be distributed to such holders of record in
substitution and replacement for the Rights Certificates held by such holders
prior to the date of adjustment, and upon surrender thereof, if required by the
Company, new Rights Certificates evidencing all the Rights to which such holders
shall be entitled after such adjustment. Rights Certificates so to be
distributed shall be issued, executed, and countersigned in the manner provided
for herein (and may bear, at the option of the Company, the adjusted Purchase
Price) and shall be registered in the names of the holders of record of Rights
Certificates on the record date specified in the public announcement.
(k) Irrespective of any adjustment or change in
the Purchase Price or the number or type of Common Shares issuable upon the
exercise of the Rights, the Rights Certificates theretofore and thereafter
issued may continue to express the Purchase Price per share and the number of
Common Shares which were expressed in the initial Rights Certificate issued
hereunder.
(1) Before taking any action that would cause an
adjustment reducing the Purchase Price below the then par value, if any, of the
Common Shares issuable upon exercise of the Rights, the Company shall take any
corporate action which may, in the opinion of its counsel, be necessary in order
that the
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Company may validly and legally issue fully paid and nonassessable Common Shares
at such adjusted Purchase Price.
(m) 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 Common Shares and other capital stock or securities of the
Company, if any, issuable upon such exercise over and above the Common Shares
and other capital stock or securities of the Company, if any, issuable upon such
exercise on the basis of the Purchase Price in effect prior to such adjustment;
PROVIDED, HOWEVER, that the Company shall deliver to such holder a due bill or
other appropriate instrument evidencing such holder's right to receive such
additional Common Shares upon the occurrence of the event requiring such
adjustment.
(n) The Company covenants and agrees that, after
the Distribution Date, it will not, except as permitted by Sections 22, 23 or 26
hereof, take any action if at the time such action is taken it is reasonably
foreseeable that such action will eliminate or diminish the benefits intended to
be afforded by the Rights.
(o) The Directors of the Company may, at their
option, at any time after the later of the Distribution Date and the first
occurrence of a Triggering Event, exchange all or part of the then-outstanding
and exercisable Rights (which shall not include Rights that have become void
pursuant to the provisions
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of Section 11(a)(ii) hereof) for Common Shares at an exchange ratio of one
Common Share 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 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 entity holding Common
Shares for or pursuant to the terms of any such plan), who or which, together
with all Affiliates and Associates of such Person, becomes the Beneficial Owner
of 50% or more of the Common Shares then outstanding. Immediately upon the
action of the Directors of the Company ordering the exchange of any Rights
pursuant to this Section 11(o), and without any further action and without any
notice, the right to exercise such Rights shall terminate and the only right
with respect to such Rights thereafter of the holder of such Rights shall be to
receive that number of Common Shares equal to the number of such Rights held by
such holder multiplied by the Exchange Ratio. Promptly after the action of the
Directors of the Company ordering the exchange of any Rights pursuant to this
Section 11(o), the Company shall publicly announce such action, and within 10
calendar days thereafter shall give 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; PROVIDED, HOWEVER, that the failure to give, or any
defect in, such notice shall
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not affect the validity of such exchange. 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 shall state the method by which the
exchange of the Common Shares for Rights shall be effected and, in the event of
any partial exchange, the number of Rights which will be exchanged. Any partial
exchange shall be effected pro rata based on the number of Rights (other than
Rights which have become void pursuant to the provisions of Section 11(a)(ii)
hereof) held by each holder of Rights. In any exchange pursuant to this Section
11(o), the Company, at its option, may substitute for any Common Share
exchangeable for a Right, (i) cash, (ii) debt securities of the Company, (iii)
other assets, or (iv) any combination of the foregoing, in any event having an
aggregate value which the Directors of the Company shall have determined in good
faith to be equal to the current market value of one Common Share (determined
pursuant to Section 11(e) hereof) on the Trading Day immediately preceding the
date of exchange pursuant to this Section 11(o). The Company shall not be
required to issue fractions of Common Shares or to distribute certificates which
evidence fractional Common Shares upon the exchange of a Right. In lieu of such
fractional Common Shares, the Company shall pay to the registered holders of the
Rights Certificates with regard to which such fractional Common Shares would
otherwise be issuable an amount in cash equal to the same fraction of the
current market value of a whole Common Share (determined pursuant to Section
11(e) hereof) on the Trading Day
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immediately preceding the date of exchange pursuant to this
Section 11(o).
Section 12. CERTIFICATE OF ADJUSTED PURCHASE PRICE OR NUMBER OF
SHARES. Whenever an adjustment is made as provided in Section 11 hereof, the
Company shall promptly prepare a certificate setting forth such adjustment
(including a description of any Rights which have become void as a result
thereof), and a brief statement of the facts accounting for such adjustment and
promptly file with the Rights Agent and with each transfer agent for the Common
Shares a copy of such certificate.
Section 13. NOTICE OF ADJUSTED PURCHASE PRICE OR NUMBER OR TYPE
OF SHARES TO HOLDERS OF RIGHTS. Whenever an adjustment is made as provided in
Section 11 hereof after the Distribution Date, the Company shall mail a brief
summary of such adjustment to each holder of a Rights Certificate in accordance
with Section 25 hereof.
Section 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES. (a) The
Company shall not be required to issue fractions of Rights or to distribute
Rights Certificates which evidence fractional Rights. In lieu of such fractional
Rights, there shall be paid as promptly as practicable to the registered holders
of the Rights Certificates with regard to which such fractional Rights would
otherwise be issuable, an amount in cash equal to the same fraction of the
current market value of a whole Right. For 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
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<PAGE> 48
on which such fractional Rights would have been otherwise issuable. The closing
price for any day shall be the last sale price, regular way, or, in case no such
sale takes place on such day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on the New York Stock Exchange or, if the Rights are not listed or
admitted to trading on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which the Rights are listed or
admitted to trading or, if the Rights are not listed or admitted to trading on
any national securities exchange, the last quoted price or, if not so quoted,
the average of the high bid and low asked prices in the over-the-counter market,
as reported by NASDAQ or such other system then in use or, if on any such date
the Rights are not quoted by any such organization, the average of the closing
bid and asked prices as furnished by a professional market maker making a market
in the Rights selected by the Directors of the Company. If on any such date no
such market maker is making a market in the Rights the fair value of the Rights
on such date as determined in good faith by the Directors of the Company shall
be used and shall be conclusive for all purposes.
(b) The Company shall not be required to issue
fractions of Common Shares upon exercise of the Rights or to distribute
certificates which evidence fractional Common Shares.
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In lieu of fractional Common Shares, the Company may pay to the registered
holders of Rights Certificates at the time such Rights are exercised as herein
provided an amount in cash equal to the same fraction of the current market
value of one Common Share. For purposes of this Section 14(b), the current
market value of a Common Share shall be the closing price of a Common Share (as
determined pursuant to the second sentence of Section 11(e) hereof) for the
Trading Day immediately prior to the date of such exercise.
(c) The holder of a Right by the acceptance of
the Right expressly waives his right to receive any fractional Rights or any
fractional shares upon exercise of a Right.
Section 15. RIGHTS OF ACTION. All rights of action in respect of
this Agreement are vested in the respective registered holders of the Rights
Certificates (and, prior to the Distribution Date, the registered holders of the
Common Shares); and any registered holder of any Rights Certificate (or, prior
to the Distribution Date, of the Common Shares), without the consent of the
Rights Agent or of the holder of any other Rights Certificate (or, prior to the
Distribution Date, of the Common Shares), may, in such holder's own behalf and
for such holder's own benefit, enforce, and may, subject to the provisions
hereof, institute and maintain any suit, action, or proceeding against the
Company to enforce, or otherwise act in respect of, such holder's right to
exercise the Rights evidenced by such Rights Certificate in the manner provided
in such Rights Certificate and in this Agreement. Without limiting the foregoing
or any
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remedies available to the holders of Rights, it is specifically acknowledged
that the holders of Rights would not have an adequate remedy at law for any
breach of this Agreement and will be entitled to specific performance of the
obligations under this Agreement, and injunctive relief against actual or
threatened violations of the obligations of any Person subject to this
Agreement.
Section 16. AGREEMENT OF RIGHTS HOLDERS. Every holder of a Right
by accepting the same consents and agrees with the Company and the Rights Agent
and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights
will be transferable only in connection with the transfer of the
Common Shares;
(b) after the Distribution Date, the Rights
Certificates are transferable only on the registry books of the Rights Agent if
surrendered at the principal office of the Rights Agent, duly endorsed or
accompanied by a proper instrument of transfer; and
(c) the Company and the Rights Agent may deem and
treat the Person in whose name the Rights Certificate (or, prior to the
Distribution Date, the associated Common Share certificate) is registered on the
transfer records maintained by the Rights Agent (or, prior to the Distribution
Date, by the Company's appointed transfer agent) as the absolute owner thereof
and of the Rights evidenced thereby (notwithstanding any notations of ownership
or writing on the Rights Certificate or
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the associated Common Share certificate made by anyone other than the Company,
its appointed transfer agent, or the Rights Agent) for all purposes whatsoever,
and neither the Company nor the Rights Agent shall be affected by any notice to
the contrary.
Section 17. RIGHTS CERTIFICATE HOLDER NOT DEEMED A SHAREHOLDER.
No holder, as such, of any Rights Certificate shall be entitled to vote, receive
dividends, or be deemed for any purpose the holder of the Common Shares or any
other securities of the Company which may at any time be issuable on the
exercise of the Rights represented thereby, nor shall anything contained herein
or in any Rights Certificate be construed to confer upon the holder of any
Rights Certificate, as such, any of the rights of a shareholder of the Company
or any right to vote for the election of directors or upon any matter submitted
to shareholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
shareholders (except as provided in Section 24 hereof), or to receive dividends
or subscription rights, or otherwise, until the Right or Rights evidenced by
such Rights Certificate shall have been exercised in accordance with the
provisions hereof or exchanged pursuant to the provisions of Section 11(o)
hereof.
Section 18. CONCERNING THE RIGHTS AGENT. (a) The
Company shall 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
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incurred in the administration and execution of this Agreement and the exercise
and performance of its duties hereunder. The Company also shall indemnify the
Rights Agent for, and hold it harmless against, any loss, liability, suit,
action, proceeding, or expense, incurred without negligence, bad faith, or
willful misconduct on the part of the Rights Agent, for anything done or omitted
by the Rights Agent in connection with the acceptance and administration of this
Agreement, including the costs and expenses of defending against any claim of
liability.
(b) The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered, or omitted by it in
connection with its administration of this Agreement in reliance upon any Rights
Certificate or certificate for Common Shares or for other securities of the
Company, instrument of assignment or transfer, power of attorney, endorsement,
affidavit, letter, notice, direction, consent, certificate, statement, or other
paper or document believed by it to be genuine and to be signed, executed, and,
where necessary, verified or acknowledged, by the proper person or persons.
Section 19. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS
AGENT. (a) Any corporation into which the Rights Agent or any successor Rights
Agent may be merged or with which it may be consolidated, or any corporation
resulting from any merger or consolidation to which the Rights Agent or any
successor Rights Agent shall be a party, or any corporation succeeding to the
corporate trust business of the Rights Agent
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or any successor Rights Agent, shall be the successor to the Rights Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto, provided that such corporation would
be eligible for appointment as a successor Rights Agent under the provisions of
Section 21 hereof. In case at the time such successor Rights Agent shall succeed
to the agency created by this Agreement, any of the Rights 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
Rights Certificates so countersigned; and in case at that time any of the Rights
Certificates shall not have been countersigned, any successor Rights Agent may
countersign such Rights Certificates either in the name of the predecessor
Rights Agent or in the name of the successor Rights Agent; and in all such cases
such Rights Certificates shall have the full force provided in the Rights
Certificates and in this Agreement.
(b) In case at any time the name of the Rights
Agent shall be changed and at such time any of the Rights Certificates shall
have been countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Rights Certificates so
countersigned. In case at that time any of the Rights Certificates shall not
have been countersigned, the Rights Agent may countersign such Rights
Certificates either in its prior name or in its changed name. In all such cases
such Rights Certificates shall have the full force provided in the Rights
Certificates and in this Agreement.
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Section 20. DUTIES OF RIGHTS AGENT. The Rights Agent undertakes
the duties and obligations imposed by this Agreement upon the following terms
and conditions, by all of which the Company and the holders of Rights
Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal
counsel (who may be legal counsel for the Company), and the opinion of such
counsel shall be full and complete authorization and protection to the Rights
Agent as to any action taken or omitted by it in good faith and in accordance
with such opinion.
(b) Whenever in the performance of its duties
under this Agreement the Rights Agent shall deem it necessary or desirable that
any fact or matter be proved or established by the Company prior to taking or
suffering any action hereunder, such fact or matter (unless other evidence in
respect thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a certificate signed by any one of the
Chairman of the Board, the President, the Treasurer, or the Secretary of the
Company and delivered to the Rights Agent; and such certificate shall be full
authorization to the Rights Agent for any action taken or suffered in good faith
by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder
only for its own negligence, bad faith, or willful misconduct.
(d) The Rights Agent shall not be liable for or
by reason of any of the statements of fact or recitals contained
in this Agreement or in the Rights Certificates (except its
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countersignature thereof) or be required to verify the same, but all such
statements and recitals are and shall be deemed to have been made by the Company
only.
(e) The Rights Agent shall not be under any
responsibility in respect of the validity of this Agreement or the execution and
delivery hereof (except the due execution and delivery hereof by the Rights
Agent) or in respect of the validity or execution of any Rights Certificate
(except its countersignature thereof); nor shall it be responsible for any
breach by the Company of any covenant or condition contained in this Agreement
or in any Rights Certificate; nor shall it be responsible for any adjustment
required under the provisions of Section 11 hereof (including any adjustment
which results in Rights becoming void) or responsible for the manner, method, or
amount of any such adjustment or the ascertaining of the existence of facts that
would require any such adjustment (except with respect to the exercise of Rights
evidenced by Rights Certificates after actual notice of any such adjustment or
voidance); nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any Common
Shares to be issued pursuant to this Agreement or any Rights Certificate or as
to whether any Common Shares will, when issued, be validly authorized and
issued, fully paid, and nonassessable.
(f) The Company shall perform, execute,
acknowledge, and deliver or cause to be performed, executed,
acknowledged, and delivered all such further and other acts,
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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 shall accept instructions
with respect to the performance of its duties hereunder from any one of the
Chairman of the Board, the President, the Secretary, the Treasurer, the Chief
Financial Officer, the General Counsel, or any Assistant or Associate General
Counsel of the Company, and apply to such officers for advice or instructions in
connection with its duties, and it shall not be liable for any action taken or
suffered to be taken by it in good faith in accordance with instructions of any
such officer.
(h) The Rights Agent and any 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 legal entity.
(i) The Rights Agent may execute and exercise any
of the rights or powers hereby vested in it or perform any duty hereunder either
itself or by or through its attorneys or agents, and the Rights Agent shall not
be answerable or accountable for any act, default, neglect, or misconduct of any
such attorneys or agents or for any loss to the Company
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resulting from any such act, default, neglect, or misconduct, PROVIDED
reasonable care was exercised in the selection and continued employment thereof.
The Rights Agent shall not be under any duty or responsibility to insure
compliance with any applicable federal or state securities laws in connection
with the issuance, transfer, or exchange of Rights Certificates.
(j) The Rights Agent shall promptly remit to the
Company any funds paid to it upon exercise of the Rights pursuant to Section 7
hereof.
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 calendar days' notice in writing mailed to the Company and to
each transfer agent of the Common Shares by registered or certified mail, and to
the holders of the Rights Certificates by first-class mail. The Company may
remove the Rights Agent or any successor Rights Agent upon 30 calendar days'
notice in writing, mailed to the Rights Agent or successor Rights Agent, as the
case may be, and to each transfer agent of the Common Shares by registered or
certified mail, and to the holders of the Rights Certificates by first-class
mail. If the Rights Agent shall resign or be removed or shall otherwise become
incapable of acting, the Company shall appoint a successor to the Rights Agent.
If the Company shall fail to make such appointment within a period of 60
calendar 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
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of a Rights Certificate (who shall, with such notice, submit his Rights
Certificate for inspection by the Company), then the registered holder of any
Rights Certificate may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent. Any successor Rights Agent, whether appointed
by the Company or by such a court, shall be a corporation organized and doing
business under the laws of the United States or of the States of Ohio or New
York (or of any other state of the United States so long as such corporation is
authorized to do business as a banking institution in the States of Ohio or New
York), in good standing, and having a principal office in the States of Ohio or
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 million and maintains such offices as may be required to
comply with any applicable law or with any rule or regulation of any stock
exchange, or relating to any transaction reporting system, or which the Common
Shares or the Rights may from time to time be listed or quoted. 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.
55
<PAGE> 59
Not later than the effective date of any such appointment, the Company shall
file notice thereof in writing with the predecessor Rights Agent and each
transfer agent of the Common Shares, and mail a notice thereof in writing to the
registered holders of the Rights Certificates. Failure to give any notice
provided for in this Section 21, however, or any defect therein, shall not
affect the legality or validity of the resignation or removal of the Rights
Agent or the appointment of the successor Rights Agent, as the case may be.
Section 22. ISSUANCE OF NEW RIGHTS CERTIFICATES. Notwithstanding
any of the provisions of this Agreement or of the Rights to the contrary, the
Company may, at its option, issue new Rights Certificates evidencing Rights in
such form as may be approved by its Directors to reflect any adjustment or
change in the Purchase Price per share and the number or kind or class of shares
or other securities or property purchasable under the Rights Certificates made
in accordance with the provisions of this Agreement.
Section 23. REDEMPTION. (a) Prior to the Expiration Date, the
Directors of the Company may, at their option, at any time prior to the Close of
Business on the later of (i) the Distribution Date and (ii) the date of the
first occurrence of a Triggering Event, redeem all but not less than all of the
then-outstanding Rights at a redemption price of $0.001 per Right appropriately
adjusted to reflect any stock split effective, stock dividend paid, or similar
transaction occurring
56
<PAGE> 60
after August 26, 1996 (such redemption price being hereinafter referred to as
the "Redemption Price").
(b) Immediately upon the effective date of the
action of the Directors of the Company ordering the redemption of the Rights,
and without any further action and without any notice, the right to exercise the
Rights shall terminate and the only right thereafter of the holders of Rights
shall be to receive the Redemption Price. Promptly after the action of its
Directors ordering the redemption of the Rights, the Company shall publicly
announce such action and 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
Company; PROVIDED, HOWEVER, that the failure to give, or any defect in, any such
notice shall not affect the validity of the redemption of the Rights. Any notice
which is mailed in the manner herein provided shall be deemed given, whether or
not the holder receives the notice. The notice of redemption mailed to the
holders of Rights shall state the method by which the payment of the Redemption
Price will be made. The Company may, at its option, pay the Redemption Price in
cash, Common Shares (based upon the current per share market price of the Common
Shares (determined pursuant to Section 11(e) hereof) at the time of redemption)
or any other form of consideration deemed appropriate by the Directors of the
Company (based upon the fair market value of such other consideration,
determined by the
57
<PAGE> 61
Directors of the Company in good faith) or any combination thereof.
Section 24. NOTICE OF CERTAIN EVENTS. In case, after the
Distribution Date, the Company shall propose (a) to pay any dividend payable in
stock of any class to the holders of Common Shares or to make any other
distribution to the holders of Common Shares (other than a regular periodic cash
dividend at a rate not in excess of 125% of the rate of the last regular
periodic cash dividend theretofore paid), or (b) to offer to the holders of
Common Shares rights, options, or warrants to subscribe for or to purchase any
additional Common Shares or shares of stock of any class or any other
securities, rights or options, or (c) to effect any reclassification of its
Common Shares (other than a reclassification involving only the subdivision of
outstanding Common Shares), 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 or more transactions,
of more than 50% of the assets or earning power of the Company and its
Subsidiaries, taken as a whole, 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 each holder of a Rights Certificate, in
accordance with Section 25 hereof, a notice of such proposed action, which shall
specify the record date for the purposes of such stock dividend, distribution or
rights, options, or warrants, or the date on which such reclassification,
consolidation, merger,
58
<PAGE> 62
sale, transfer, liquidation, dissolution, or winding up is to take place and the
date of participation therein by the holders of the Common Shares, if any such
date is to be fixed, and such notice shall be so given, in the case of any
action covered by clause (a) or (b) above, at least 20 calendar days prior to
the record date for determining holders of the Common Shares for purposes of
such action, and, in the case of any such other action, at least 20 calendar
days prior to the date of the taking of such proposed action or the date of
participation therein by the holders of the Common Shares, whichever shall be
the earlier. In case any of the events set forth in Section 11(a)(ii) or Section
11(d) 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 Rights
Certificate, in accordance with Section 25 hereof, a notice of the occurrence of
such event, which shall specify the event and the consequences of the event to
holders of Rights.
Section 25. NOTICES. Notices or demands authorized by this
Agreement to be given or made by the Rights Agent or by the holder of any Rights
Certificate to or on the Company shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another address is filed in
writing with the Rights Agent) as follows:
Caliber System, Inc.
P.O. Box 5459
Akron, Ohio 44334-0459
Attention: Secretary
Subject to the provisions of Section 21 hereof, any notice or demand authorized
by this Agreement to be given or made by the
59
<PAGE> 63
Company or by the holder of any Rights Certificate to or on the Rights Agent
shall be sufficiently given or made if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing with the Company)
as follows:
KeyBank National Association
127 Public Square
Cleveland, Ohio 44114
Attention: B. William Bedy
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Rights Certificate 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 Rights Agent.
Section 26. SUPPLEMENTS AND AMENDMENTS. Prior to the
Distribution Date and subject to Section 11 and the last sentence of this
Section 26, if the Company so directs, the Company and the Rights Agent shall
supplement or amend any provision of this Agreement without the approval of any
holders of certificates representing Common Shares. From and after the
Distribution Date and subject to the last sentence of this Section 26, if the
Company so directs, the Company and the Rights Agent shall supplement or amend
this Agreement without the approval of any holders of Rights Certificates in
order (i) to cure any ambiguity, (ii) to correct or supplement any provision
contained herein which may be defective or inconsistent with any other
provisions herein, (iii) to shorten or lengthen any time period hereunder, or
(iv) to supplement or amend the provisions hereunder in any manner which the
Company
60
<PAGE> 64
may deem desirable, including without limitation the addition of other events
requiring adjustment to the Rights under Sections 11(a)(ii) or 11(d) hereof or
procedures relating to the redemption of the Rights, which supplement or
amendment shall not, in the good faith determination of the Directors of the
Company, adversely affect the interests of the holders of Rights Certificates
(other than an Acquiring Person or an Affiliate or Associate of an Acquiring
Person). Upon the delivery of a certificate from an officer of the Company which
states that the proposed supplement or amendment is in compliance with the terms
of this Section 26, the Rights Agent shall execute such supplement or amendment;
PROVIDED, HOWEVER, that the failure or refusal of the Rights Agent to execute
such supplement or amendment shall not affect the validity of any supplement or
amendment adopted by the Company, any of which shall be effective in accordance
with the terms thereof. Notwithstanding anything in this Agreement to the
contrary, no supplement or amendment shall be made which decreases the stated
Redemption Price or the period of time remaining until the Final Expiration Date
or which modifies a time period relating to when the Rights may be redeemed at
such time as the Rights are not then redeemable.
Section 27. SUCCESSORS. All the covenants and
provisions of this Agreement by or for the benefit of the
Company or the Rights Agent shall bind and inure to the benefit
of their respective successors and assigns hereunder.
61
<PAGE> 65
Section 28. BENEFITS OF THIS AGREEMENT. Nothing in this
Agreement shall be construed to give to any Person other than the Company, the
Rights Agent, and the registered holders of the Rights Certificates (and, prior
to the Distribution Date, the Common Shares) any legal or equitable right,
remedy, or claim under this Agreement; but this Agreement shall be for the sole
and exclusive benefit of the Company, the Rights Agent, and the registered
holders of the Rights Certificates.
Section 29. ACTION BY DIRECTORS. Whenever any action hereunder
or in connection with the Rights is required or permitted to be taken by the
Directors of the Company, such action may also be taken by the Executive and
Finance Committee of the Directors or by any other duly authorized committee
thereof.
Section 30. SEVERABILITY. If any term, provision, covenant, or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void, or unenforceable, the remainder of the
terms, provisions, covenants, and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired, or invalidated.
Section 31. GOVERNING LAW. This Agreement and each Rights
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of Ohio and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to contracts to
be made and performed entirely within such State.
62
<PAGE> 66
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.
63
<PAGE> 67
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
Attest: CALIBER SYSTEM, INC.
By: By:
-------------------------- ----------------------------
KEYBANK NATIONAL ASSOCIATION
Attest:
By: By:
-------------------------- ----------------------------
64
<PAGE> 68
Exhibit A
---------
[FORM OF RIGHTS CERTIFICATE]
Certificate No. R-
______________ Rights
NOT EXERCISABLE AFTER AUGUST 26, 2006 OR EARLIER IF REDEEMED.
THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE
COMPANY, AT $0.001 PER RIGHT ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT, DATED AUGUST [ ], 1996, AS AMENDED FROM TIME
TO TIME, BETWEEN THE COMPANY AND THE RIGHTS AGENT NAMED
THEREIN (THE "RIGHTS AGREEMENT") AND ARE GOVERNED BY AND
SUBJECT TO CHANGE PURSUANT TO THE RIGHTS AGREEMENT. [THE
RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE
BENEFICIALLY OWNED BY A PERSON WHO WAS AN ACQUIRING PERSON OR
AN ASSOCIATE OR AFFILIATE OF AN ACQUIRING PERSON AS DEFINED IN
THE RIGHTS AGREEMENT. THIS RIGHTS CERTIFICATE AND THE RIGHTS
REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE
CIRCUMSTANCES SPECIFIED IN THE RIGHTS AGREEMENT.*]
Rights Certificate
------------------
This certifies that ___________________, or registered
assigns, is the registered owner of the number of Rights set forth above, each
of which entitles the owner thereof, subject to the terms, provisions and
conditions of the Rights Agreement, dated August 22, 1996 (the "Rights
Agreement"), between Caliber
- - --------
* The portion of the legend in brackets shall be inserted only
if applicable.
A-1
<PAGE> 69
System, Inc., an Ohio corporation (the "Company"), and KeyCorp National
Association (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. (Eastern Time) on August 26, 2006 at the principal office of
the Rights Agent, or its successors as Rights Agent, in Cleveland, Ohio, one
fully paid nonassessable share of common stock of the Company (a "Common
Share"), at a purchase price of $120 per share (the "Purchase Price"), upon
presentation and surrender of this Rights Certificate with the Form of Election
to Purchase and Certificate duly executed. The number of Rights evidenced by
this Rights 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 the Record Date, based on the
Common Shares as constituted at such date.
As provided in the Rights Agreement, the Purchase Price and
the number of Common Shares which may be purchased upon the exercise of the
Rights evidenced by this Rights Certificate are subject to modification and
adjustment upon the happening of certain events, and the Rights are subject to
modification, amendment, redemption, and certain other events.
This Rights Certificate is subject to all of the terms,
provisions, and conditions of the Rights Agreement, which terms, provisions, and
conditions are hereby incorporated herein by reference and made a part hereof
and to which Rights Agreement reference is hereby made for a full description of
the rights,
A-2
<PAGE> 70
limitations of rights, obligations, duties, and immunities hereunder of the
Rights Agent, the Company, and the holders of the Rights Certificates. Copies of
the Rights Agreement are on file at the above-mentioned office of the Rights
Agent.
This Rights Certificate, with or without other Rights
Certificates, upon surrender at the principal office of the Rights Agent, may be
exchanged for another Rights Certificate or Rights Certificates of like tenor
and date evidencing Rights entitling the holder to purchase a like aggregate
number of Common Shares as the Rights evidenced by the Rights Certificate or
Rights Certificates surrendered shall have entitled such holder to purchase. If
this Rights Certificate shall be exercised in part, the holder shall be entitled
to receive upon surrender hereof another Rights Certificate or Rights
Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate may be redeemed by the Company at its option at a
redemption price of $0.001 per Right.
No fractional Common Shares will be issued upon the exercise
of any Right or Rights evidenced hereby, but in lieu thereof a cash payment will
be made as provided in the Rights Agreement.
No holder of this Rights Certificate shall be entitled to vote
or receive dividends or be deemed for any purpose the holder of the Common
Shares or of any other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be
A-3
<PAGE> 71
construed to confer upon the holder hereof, as such, any of the rights of a
shareholder of the Company or any right to vote for the election of directors or
upon any matter submitted to shareholders at any meeting thereof, or to give or
withhold consent to any corporate action, or, to receive notice of meetings or
other actions affecting shareholders (except as provided in the Rights
Agreement), or to receive dividends or subscription rights, or otherwise, until
the Right or Rights evidenced by this Rights Certificate shall have been
exercised as provided in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers
of the Company and its corporate seal. Dated as of the Record
Date.
ATTEST:
By:
- - -------------------------- ------------------------
Secretary Title:
A-4
<PAGE> 72
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
------------------
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificates.)
FOR VALUE RECEIVED, __________________________________________
hereby sells, assigns, and transfers unto ______________________________________
________________________________________________________________________________
(Please print name and address of transferee)
________________________________________________________________________________
this Rights Certificate, together with all right, title, and interest therein,
and does hereby irrevocably constitute and appoint ______________ Attorney, to
transfer the within Rights Certificate on the books of the within-named Company,
with full power and substitution.
Dated:____________________
______________________________
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Rights Certificate)
Signature Guaranteed:
A-5
<PAGE> 73
FORM OF ELECTION TO PURCHASE
----------------------------
(To be executed if holder desires to
exercise the Rights Certificate.)
To KeyCorp National Association:
The undersigned hereby irrevocably elects to exercise
_________________ Rights represented by this Rights Certificate to purchase the
Common Shares 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 Rights
Certificate, a new Rights 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:___________________
___________________________
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Rights Certificate)
Signature Guaranteed:
A-7
<PAGE> 74
CERTIFICATE
-----------
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) the Rights evidenced by this Rights Certificate [ ] are [ ] are not
being exercised by or on behalf of a Person who is or was an Acquiring Person or
an Affiliate or Associate of any such Person (as such terms are defined pursuant
to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate from
any Person who is, was or became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated:________________
______________________________
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Rights Certificate)
Signature Guaranteed:
A-6
<PAGE> 75
Exhibit B
---------
SUMMARY OF RIGHTS
ISSUED PURSUANT TO CALIBER SYSTEM, INC. RIGHTS AGREEMENT
On August 14, 1996, the Directors of Caliber System, Inc. (the
"Company") declared a dividend distribution of one right (a "Right") for each
outstanding share of common stock of the Company ("Common Share"). The Rights
will be issued to shareholders of record at the close of business on August 26,
1996 (the "Record Date"). The terms of the Rights are set forth in a Rights
Agreement, dated August 22, 1996, between the Company and KeyCorp National
Association (the "Rights Agent").
Each Right entitles the registered holder to purchase from the
Company one Common Share at a price of $120 per share (the "Purchase Price"),
subject to adjustment. The Rights will expire on August 26, 2006, unless earlier
redeemed by the Company as described below.
Until the Distribution Date (as described below), the Rights
will be evidenced by the Common Share certificates. The Rights Agreement
provides that, until the Distribution Date, the Rights will be transferred with
and only with the Common Shares. Until the Distribution Date (or earlier
redemption or expiration of the Rights), (i) new Common Share certificates
issued upon transfer or new issuance of Common Shares will contain a notation
incorporating the Rights Agreement by reference and (ii) the surrender for
transfer of any certificates for Common Shares will also constitute the transfer
of the Rights associated with the Common Shares represented by such certificate.
The Rights are not exercisable until the earlier to occur of
(i) 10 days following a public announcement by the Company that a person or
group of affiliated or associated persons (an "Acquiring Person") has acquired,
or obtained the right to acquire, beneficial ownership of 20% or more of the
outstanding Common Shares (or such later date as the Directors may specify) and
(ii) 10 days (or such later date as the Directors may specify) following the
commencement of a tender offer or exchange offer for 20% or more of such
outstanding Common Shares, (the earlier of such dates being hereinafter called
the "Distribution Date"), PROVIDED, HOWEVER, that a person shall not be an
Acquiring Person (i) if such person has reported or is required to report such
ownership of less than 20% of the Common Shares then outstanding on Schedule 13G
under the Securities Exchange Act of 1934, as amended (the "Exchange Act") or
(ii) if such person has reported or is required to report such ownership on
Schedule 13D under the Exchange Act, which Schedule 13D does not state any
intention to or reserve the right to
<PAGE> 76
control or influence the Company or engage in certain other actions, and upon
the Company's request, such person certifies to the Company that such person
acquired Common Shares in excess of 20% inadvertently and such person, together
with its affiliates and associates, thereafter does not acquire additional
Common Shares while the beneficial owner of 20% or more of the Common Shares
outstanding. Notwithstanding the foregoing, the term a "Acquiring Person" will
not include a "group" required to file a Schedule 13D with the Commission
pursuant to Section 13(d) of the Exchange Act (a) so long as (i) such "group"
consists solely of beneficial owners of Common Shares prior to the date of this
Agreement, (ii) such "group" has not made a public announcement or filing with
the Commission which states in substance that such "group" or any members
thereof, or any Affiliate of any of the foregoing, has (A) made or intends to
make or effect any tender or exchange offer for more than 20% of the Common
Shares or merger or other business combination transaction, or (B) commenced or
intends to commence the solicitation of proxies in favor of any such transaction
or a change in a majority of the members of the Directors, and (iii) such
"group" does not beneficially own more than 25% of the then-outstanding Common
Shares or (b) which the Directors determine, after consultation with counsel
(who may be regular counsel to the Company), should not be deemed to constitute
an "Acquiring Person" hereunder.
As soon as practicable following the Distribution Date,
separate certificates evidencing the Rights (the "Rights Certificates") will be
mailed to holders of record of the Common Shares as of the close of business on
the Distribution Date and such separate Rights Certificates will thereafter
evidence the Rights.
The Purchase Price payable upon exercise of the Rights, and
the number of Common Shares or other securities or property issuable upon
exercise, 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 Shares, (ii) upon the grant to holders of the
Common Shares of certain rights, options, or warrants to subscribe for Common
Shares or convertible securities at less than the current market price of the
Common Shares, or (iii) upon the distribution to holders of the Common Shares of
evidences of indebtedness or cash (excluding regular periodic cash dividends at
a rate not in excess of 125% of the rate of the last cash dividend theretofore
paid), assets, stock (other than dividends payable in Common Shares), or of
subscription rights or warrants (other than those referred to above). With
certain exceptions, no adjustment in the Purchase Price will be required until
cumulative adjustments require an adjustment of at least 1% in such Purchase
Price.
In the event that (i) an Acquiring Person merges into the
Company and the Company's Common Shares are not changed or exchanged, (ii) an
Acquiring Person engages in one of a number of other self-dealing transactions
specified in the Rights
<PAGE> 77
Agreement, or (iii) any person becomes an Acquiring Person (collectively, a
"Flip-In Event"), proper provision shall be made so that each holder of a Right
will thereafter have the right to receive, upon exercise thereof at the then
current exercise price of the Right, that number of Common Shares having a
market value of two times the exercise price of the Right.
In the event that (i) the Company engages in a merger or other
business transaction in which the Company is not the surviving corporation, (ii)
the Company engages in a merger or other business combination transaction in
which its Common Shares are changed or exchanged, or (iii) 50% or more of the
Company's assets or earning power are sold, (collectively a "Flip-Over Event";
"Flip-In Events and Flip-Over Events" are referred to collectively as
"Triggering Events"), proper provision shall be made so that 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 (or, under certain circumstances, an economically equivalent security or
securities) of the surviving, resulting or acquiring person which at the time of
such transaction would have a market value of two times the exercise price of
the Right.
Rights that are or were beneficially owned by an Acquiring
Person shall be void after the later of the Distribution Date or the first
occurrence of a Flip-In Event.
The Directors may, at their option, at any time after the
latter of the Distribution Date or the first occurrence of a Triggering Event
and prior to the time that a person or group has acquired or obtained the right
to acquire 50% or more of the outstanding Common Shares, exchange all or part of
the exercisable Rights for Common Shares at an exchange ratio of one Common
Share per Right, subject to adjustment.
No fractional shares will be issued and in lieu thereof,
payment in cash will be made based on the market price of the Common Shares on
the last trading day prior to the date of exercise.
Prior to August 26, 2006, at any time prior to the later of
(i) the Distribution Date and (ii) the date of the first occurrence of a
Triggering Event, the Directors may redeem the Rights in whole, but not in part,
at a price of $0.001 per Right, payable in cash, Common Shares, or other
consideration (the "Redemption Price"). Immediately upon the effective date of
the action of the Directors of the Company electing to redeem the Rights, the
right to exercise the Rights will terminate and the only right of the holders of
Rights will be to receive the Redemption Price.
Until a Right is exercised, the holder thereof, as
such, will have no rights as a shareholder of the Company,
<PAGE> 78
including, without limitation, the right to vote or to receive
dividends.
The Rights Agreement may be amended by the Company and the
Rights Agent without the approval of any holders of Rights at any time and from
time to time, provided that after the Distribution Date, the amendment will not
adversely affect the interests of holders of Rights, and no such amendment shall
decrease the Redemption Price or the period of time remaining until the Final
Expiration Date or modify a time period relating to when Rights may be redeemed
at such time as the Rights are not then redeemable.
A copy of the Rights Agreement has been filed with the
Securities and Exchange Commission as an Exhibit to a Registration Statement
dated August 22, 1996. A copy of the Rights Agreement is available free of
charge from the Company. This summary description of the Rights does not purport
to be complete and is qualified in its entirety by reference to the Rights
Agreement, which is hereby incorporated herein by reference.
<PAGE> 1
EXHIBIT 4
NEWS RELEASE [CALIBER LOGO]
CALIBER SYSTEM, INC.
3680 WEST MARKET STREET
P.O. BOX 5459
AKRON, OH 44334-0459
(330) 605-5848
HTTP://WWW.CALIBERSYS.COM
FOR IMMEDIATE RELEASE
CONTACTS R.M. ADARNOV
CALIBER SYSTEM, INC.
(330) 665-8894
CALIBER SYSTEM ANNOUNCES DIVIDEND, SHAREHOLDER RIGHTS PLAN AND INFORMATION
REGARDING THIRD QUARTER FINANCIAL PERFORMANCE
AKRON, OHIO, AUGUST 15, 1996 - Daniel J. Sullivan, Chairman of the
Board, President and CEO of Caliber System, Inc. (NYSE: CBB), today announced
declaration of a dividend payment, adoption of a shareholder rights plan and
preliminary information regarding third quarter financial performance.
The Company's Board of Directors has authorized the payment of a
regular quarterly dividend of $.18 per share payable on November 1, 1996 to
shareholders of record on October 15, 1996.
The Board of Directors also has adopted a shareholder rights plan. Its
adoption is not in response to any takeover proposal. Under the plan, the
Board has declared a dividend of one right for each share of Company common
stock held of record as of the close of business on August 26, 1996. The rights
will not be exercisable, and no rights certificate will be distributed, until
ten calendar days following a public announcement that a person or group has
acquired 20% of the Company's common stock. Subject to certain exceptions, the
Company will generally be entitled to redeem the rights at $0.001 per right at
any time. A letter describing the details of the rights plan will be
distributed to the stockholders of the Company by a mailing in September. "We
firmly believe this plan will enable the Board of Directors to better protect
the investment of our shareholders," said Sullivan.
In July, we stated that operating losses for 1996 at Viking would
significantly exceed the company's earlier estimate and announced that the loss
for the second quarter ended June 15, 1996 was $31.2 million. As previously
indicated, costs for consolidating the Company's four regional carriers into
the "new" Viking will continue throughout 1996. Extensive operations and sales
plans have been implemented to manage the rapid growth and associated expenses
experienced at Viking. Although the third quarter does not end until September
7, 1996, our present expectation is that the operating losses experienced by
Viking in the second quarter will continue at approximately the same rate
through the present quarter. With this information, we presently anticipate
that Caliber System, Inc. will, at best, break even for the third quarter. The
company will release third quarter earnings the week of September 23.
<PAGE> 2
"Without question, it has been a difficult transition year for Viking.
However, we remain confident that our strategy is right - focused on attaining
long term objectives for our customers and shareholders alike. We continue to
move forward with the Viking consolidation. The merging of facilities,
equipment and operating systems are on track for completion in 1996 under the
leadership of Ron Pelzel, promoted to the Viking CEO position on July 3rd. We
will stay the course but continue to intensely evaluate our operations and
reduce costs as appropriate," Sullivan added.
Caliber System, Inc. is a leading, value-added provider of
transportation, logistics and related information services. its operating
units include RPS, a business-to-business small package carrier; Viking
Freight, a superregional freight carrier; Caliber Logistics, a supplier of
contract logistics services; Roberts Express, a critical-shipment carrier; and
Caliber Technology, a provider of computer-based solutions for customers.
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