UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) October 1, 1998
CCB Financial Corporation
(Exact name of registrant as specified in its charter)
North Carolina 0-12358 56-1347849
(State or other (Commission File (IRS Employer
jurisdiction Number) Identification No.)
of incorporation)
111 Corcoran Street, Post Office Box 931, Durham, NC 27702
(Address of principal executive offices)
Registrant's telephone number, including area code (919) 683-7777
N/A
(Former name or former address, if changed since last report)
Item 5. Other Events.
Effective October 1, 1998, the Board of Directors of the
Registrant amended and restated the 1990 Shareholder Rights Plan
(the "Rights Plan") to extend its term and to make other changes
the Board concluded were necessary to update the original Rights
Plan. The Board's primary purpose in modifying and continuing the
Rights Plan is to require, with certain specified exceptions, any
potential acquirors of more than specified percentages of the
outstanding voting shares of the Registrant to negotiate directly
with the Board so that the Board can determine, after consultation
with its professional advisors, whether such acquisition would be
in the shareholders' best interests.
Item 7. Financial Statements and Exhibits.
(c) Exhibits
Exhibit 3 Supplement to the Amended and
Restated Articles of Incorporation.
Exhibit 4.1 Specimen of Registrant's Common
Stock certificate.
Exhibit 4.2 Amended and Restated Rights
Agreement between CCB Financial Corporation and
Central Carolina Bank and Trust Company dated as
of October 1, 1998.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, as amended, Registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
CCB FINANCIAL CORPORATION
Date: October 1, 1998 By: /s/ ERNEST C. ROESSLER
Ernest C. Roessler
Chairman, President and
Chief Executive Officer
Date: October 1, 1998 By: /s/ W. HAROLD PARKER, JR.
W. Harold Parker, Jr.
Senior Vice President and
Chief Accounting Officer
Exhibit Index
Exhibit 3 Supplement to the Amended and
Restated Articles of Incorporation.
Exhibit 4.1 Specimen of Registrant's Common
Stock certificate.
Exhibit 4.2 Amended and Restated Rights
Agreement between CCB Financial Corporation and
Central Carolina Bank and Trust Company dated as
of October 1, 1998.
Exhibit A
SUPPLEMENT TO THE AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF CCB FINANCIAL CORPORATION
4.C. Series A Junior Participating Preferred Stock:
(i) Designation and Amount. The shares of such series
shall be designated as "Series A Junior Participating Preferred
Stock," $5.00 par value per share, and the number of shares
constituting such series shall be 800,000. Such number of shares
may be increased or decreased by resolution of the Board of
Directors of this Corporation ("Board of Directors"); provided,
that no decrease shall reduce the number of shares of Series A
Junior Participating Preferred Stock to a number less than the
number of shares of the Corporation's outstanding common stock,
par value $5.00 per share ("Common Stock"), then outstanding plus
the number of shares Common Stock reserved for issuance upon the
exercise of outstanding options, rights or warrants or upon the
conversion of any outstanding securities issued by this
Corporation convertible into Series A Junior Participating
Preferred Stock.
(ii) Dividends and Distributions.
(a) Subject to the rights of the holders of any shares
of any series of preferred stock (or any similar stock)
ranking prior and superior to the Series A Junior
Participating Preferred Stock with respect to dividends, the
holders of shares of Series A Junior Participating Preferred
Stock, in preference to the holders of Common Stock and of
any other junior stock, shall be entitled to receive, when,
as and if declared by the Board of Directors out of funds
legally available for such purpose, quarterly dividends
payable in cash on the first business day of January, April,
July, and October in each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date
after the first issuance of a share or fraction of a share
of Series A Junior Participating Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the
greater of (1) $1.00 or (2) subject to the provisions for
adjustment hereinafter set forth, one hundred (100) times
the aggregate per share amount of all cash dividends, and
one hundred (100) times the aggregate per share amount
(payable in kind) of all non-cash dividends or other
distributions, other than an dividend payable in shares of
Common Stock or subdivision of the outstanding shares of
Common Stock (by reclassification or otherwise), declared on
the Common Stock since the immediately preceding Quarterly
Dividend Payment Date or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of
any share or fraction of a share of Series A Junior
Participating Preferred Stock. In the event this
Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the amount to which holders of
shares of Series A Junior Participating Preferred Stock were
entitled immediately prior to such event under clause (2) of
the preceding sentence shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to
such event.
(b) This Corporation shall declare a dividend or
distribution on the Series A Junior Participating Preferred
Stock as provided in paragraph (a) of this subsection (ii)
immediately after it declares a dividend or distribution on
the Common Stock (other than a dividend payable in shares of
Common Stock); provided that, in the event no dividend or
distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment
Date and the next subsequent Quarterly Dividend Payment
Date, a dividend of $1.00 per share on the Series A Junior
Participating Preferred Stock shall nevertheless be payable
on such subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative
on outstanding shares of Series A Junior Participating
Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares, unless the
date of issue of such shares is prior to the record date for
the first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the
record date for the determination of holders of shares of
Series A Junior Participating Preferred Stock entitled to
receive quarterly dividends and before such Quarterly
Dividends Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the
shares of Series A Junior Participating Preferred Stock in
an amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may
fix a record date for the determination of holders of shares
of Series A Junior Participating Preferred Stock entitled to
receive payment of a dividend or distribution declared
thereon, which record date shall be not more than sixty (60)
days prior to the date fixed for the payment thereof.
(iii) Voting Rights. The holders of shares of
Series A Junior Participating Preferred Stock shall have the
following voting rights:
(a) Subject to the provision for adjustment
hereinafter set forth, each share of Series A Junior
Participating Preferred Stock shall entitle the holder
thereof to one hundred (100) votes on all matters submitted
to a vote of the shareholders of this Corporation. In the
event this Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the number
of votes per share to which holders of shares of Series A
Junior Participating Preferred Stock were entitled
immediately prior to such event shall be adjusted by
multiplying such number by a fraction, the numerator of
which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding
immediately prior to such event.
(b) Except as otherwise provided herein, in any other
resolution creating a series of preferred stock or any
similar stock, in any amendment to the Amended and Restated
Articles of Incorporation of this Corporation or by law, the
holders of shares of Series A Junior Participating Preferred
Stock and any other capital stock of this Corporation having
general voting rights shall vote together as one class on
all matters submitted to a vote of shareholders of this
Corporation.
(c) Except as set forth herein, or as otherwise
provided by law, holders of Series A Junior Participating
Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent
they are entitled to vote with holders of Common Stock as
set forth herein) for taking any corporate action.
(iv) Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Junior Participating
Preferred Stock as provided in subsection (ii) are in
arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on
shares of Series A Junior Participating Preferred Stock
outstanding shall have been paid in full, this Corporation
shall not:
(1) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Junior
Participating Preferred Stock;
(2) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Junior
Participating Preferred Stock, except dividends paid
ratably on the Series A Junior Participating Preferred
Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total
amounts to which the holders of all such shares are
then entitled;
(3) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Junior
Participating Preferred Stock, provided that the
Corporation may at any time redeem, purchase or
otherwise acquire shares of any such junior stock in
exchange for shares of any class or series of stock of
this Corporation ranking junior (either as to dividends
or upon dissolution, liquidation or winding up) to the
Series A Junior Participating Preferred Stock; or
(4) redeem or purchase or otherwise acquire for
consideration any shares of Series A Junior
Participating Preferred Stock, or any shares of stock
ranking on a parity with the Series A Junior
Participating Preferred Stock, except in accordance
with a purchase offer made in writing or by publication
(as determined by the Board of Directors) to all
holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual
dividend rates and other relative rights and
preferences of the respective series and classes, shall
determine in good faith will result in fair and
equitable treatment among the respective series or
classes.
(b) This Corporation shall not permit any subsidiary
of this Corporation to purchase or otherwise acquire for
consideration any shares of capital stock of this
Corporation unless the Corporation could, under paragraph
(a) of this subsection (iv), purchase or otherwise acquire
such shares at such time and in such manner.
(v) Reacquired Shares. Any shares of Series A Junior
Participating Preferred Stock purchased or otherwise acquired by
this Corporation in any manner whatsoever shall be retired and
canceled promptly after the acquisition thereof. All such shares
upon their cancellation shall become authorized but unissued
shares of preferred stock and may be reissued as part of a new
series of preferred stock subject to the conditions and
restrictions on issuance set forth herein, in a resolution of the
Board of Directors, in the Amended and Restated Articles of
Incorporation of this Corporation, or in any other supplement or
amendment creating a series of preferred stock or any similar
stock or as otherwise required by law.
(vi) Liquidation, Dissolution of Winding Up. Upon any
liquidation, dissolution or winding up of this Corporation, no
distribution shall be made (a) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Junior Participating
Preferred Stock unless, prior thereto, the holders of shares of
Series A Junior Participating Preferred Stock shall have received
$18,750 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to
the date of such payment, provided that in no event shall the
holders of shares of Series A Junior Participating Preferred
Stock receive an amount less than an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth,
equal to one hundred (100) times the aggregate amount to be
distributed per share to holders of shares of Common Stock, or
(b) to the holders of shares of stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up)
with the Series A Junior Participating Preferred Stock, except
distributions made ratably on the Series A Junior Participating
Preferred Stock and all such parity stock in proportion to the
total amounts to which the holders of all such shares are
entitled upon such liquidation, dissolution or winding up. In
the event this Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock,
or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the aggregate amount to which holders of
shares of Series A Junior Participating Preferred Stock were
entitled immediately prior to such event under the proviso in
clause (a) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to
such event.
(vii) Merger, Etc. In the event this Corporation shall
enter into any, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or converted or
changed into other stock or securities, cash and/or any other
property, then each share of Series A Junior Participating
Preferred Stock shall at the same time be similarly exchanged or
changed into an amount per share, subject to the provision for
adjustment hereinafter set forth, equal to one hundred (100)
times the aggregate amount of stock, securities, cash and/or any
other property (payable in kind), as the case may be, into which
or for which each share of Common Stock is converted, changed or
exchanged. In the event this Corporation shall at any time
declare or pay any dividend on the Common Stock payable in shares
of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares
of Common Stock, then in each such case the amount set forth in
the preceding sentence with respect to the exchange or change of
shares of Series A Junior Participating Preferred Stock shall be
adjusted by multiplying such amount by a fraction, the numerator
of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the
number is shares of Common Stock that were outstanding
immediately prior to such event.
(viii) No Redemption. The shares of Series A Junior
Participating Preferred Stock shall not be redeemable, except as
otherwise provided herein.
(ix) Rank. The Series A Junior Participating Preferred
Stock shall rank, with respect to the payment of dividends and
the distribution of assets, junior to all series of any other
class of this Corporation's preferred stock.
(x) Amendment. The Amended and Restated Articles of
Incorporation of this Corporation shall not be amended in any
manner, nor shall the Board of Directors take any action, which
would materially alter or change the powers, preferences or
special rights of the Series A Junior Participating Preferred
Stock so as to affect them adversely without the affirmative vote
of the holders of at least two-thirds of the outstanding shares
of Series A Junior Participating Preferred Stock, voting together
as a single class.
(xi) Fractional Shares. Series A Junior Participating
Preferred Stock may be issued in fractions of a share which shall
entitle the holder, in proportion to such holder's fractional
shares, to exercise voting rights, receive dividends, participate
in distributions and to have the benefit of all other rights of
holders of Series A Junior Participating Preferred Stock.
Holders of the capital stock of this Corporation shall not
be entitled to preemptive rights with respect to any shares of
the Corporation which may be issued.
(FACE OF CERTIFICATE)
COMMON STOCK COMMON STOCK
NUMBER SHARES
CCB ____________ VIGNETTE ______________
THIS CERTIFICATE IS
TRANSFERABLE IN CRANFORD,
N.J. OR IN NEW YORK, N.Y.
INCORPORATED UNDER THE
LAWS OF THE STATE OF
NORTH CAROLINA CUSIP 124875 10 5
SEE REVERSE FOR CERTAIN
DEFINITIONS AND RIGHTS LEGEND
CCB FINANCIAL CORPORATION
This is to Certify that
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
is the owner of ___________________________________________
FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON
STOCK, PAR VALUE OF $5.00 PER SHARE OF
CCB Financial Corporation transferable only on the Books of
the Corporation by the registered owner hereof in person or by
duly authorized attorney upon surrender of this certificate
properly endorsed. This certificate is not valid unless
countersigned by the Transfer Agent and registered by the
Registrar.
Witness the facsimile seal of the Corporation and the
facsimile signatures of its duly authorized officers.
Dated _______________
(CORPORATE SEAL)
/s/ ERNEST C. ROESSLER
CHAIRMAN, PRESIDENT COUNTERSIGNED AND REGISTERED:
AND CHIEF EXECUTIVE REGISTRAR AND TRANSFER COMPANY
OFFICER (CRANFORD, NEW JERSEY)
/s/ LEO P. PYLYPEC TRANSFER AGENT
SECRETARY AND REGISTRAR
BY ___________________________
AUTHORIZED SIGNATURE
(REVERSE SIDE OF CERTIFICATE)
CCB FINANCIAL CORPORATION
CCB Financial Corporation is authorized to issue common and
preferred stock. The Corporation will upon request furnish any
shareholder, without charge, information as to the number of such
shares authorized and outstanding and a copy of the portions of
the charter or resolutions containing the designations,
preferences, limitations and relative rights of all shares and
any series thereof. Any such request may be addressed to the
Secretary of the Corporation at its executive offices in Durham,
North Carolina.
The following abbreviations, when used in the inscription on
the face of this certificate, shall be construed as though they
were written out in full according to applicable laws or
regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with the right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT - ______________ Custodian _______________
(Cust) (Minor)
under Uniform Gifts to Minors
Act _________________________
(State)
Additional abbreviations may also be used
though not in the above list.
Legend printed on left margin:
This certificate also evidences and entitles the holder hereof to
certain rights ("Rights") as set forth in the Amended and
Restated Rights Agreement between CCB Financial Corporation and
Central Carolina Bank and Trust Company, as Rights Agent, dated
as of October 1, 1988 and as amended and supplemented thereafter
(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 CCB Financial Corporation.
Under certain circumstances, as set forth in the Rights
Agreement, such Rights will be evidenced by separate certificates
and will no longer be evidenced by this certificate. CCB
Financial Corporation will mail to the holder of this certificate
a copy of the Rights Agreement without charge after receipt of a
written request therefor. As described in the Rights Agreement,
Rights issued to any Person (including its Affiliates) who
becomes an Acquiring Person (as defined in the Rights Agreement)
shall become null and void.
For value received, __________________________ hereby sell,
assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
(BOX)
____________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING
ZIP CODE, OF ASSIGNEE)
____________________________________________________________
____________________________________________________________
______________________________________________________ shares
of the Common Stock represented by the within certificate and do
hereby irrevocably constitute and appoint
____________________________________________________ Attorney
to transfer the said stock on the books of the within-named
Corporation with full power of substitution in the premises.
Dated ______________
SIGNATURE(S): _________________________
_________________________
NOTICE: THE SIGNATURE(S) TO
THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME(S) AS
WRITTEN UPON THE FACE OF THE
CERTIFICATE, IN EVERY
PARTICULAR, WITHOUT ALTERATION
OR ENLARGEMENT, OR ANY CHANGE
WHATEVER.
SIGNATURE(S) GUARANTEED: _________________________
THE SIGNATURE(S) SHOULD BE
GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION, (BANKS,
STOCKBROKERS, SAVINGS AND LOAN
ASSOCIATIONS AND CREDIT UNIONS
WITH MEMBERSHIP IN AN APPROVED
SIGNATURE GUARANTEE MEDALLION
PROGRAM), PURSUANT TO SEC RULE
17 Ad-15.
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN,
MUTILATED OR DESTROYED, THE CORPORATION WILL REQUIRE A BOND OF
INDEMNITY AS A CONDITION TO THE ISSUANCE OF A REPLACEMENT
CERTIFICATE.
AMENDED AND RESTATED RIGHTS AGREEMENT
between
CCB FINANCIAL CORPORATION
and
CENTRAL CAROLINA BANK AND TRUST COMPANY
Dated as of October 1, 1998
TABLE OF CONTENTS
Page
Section 1. Certain Definitions 1
Section 2. Appointment of Rights Agent 6
Section 3. Issue of Right Certificates 7
Section 4. Form of Right Certificates 8
Section 5. Countersignature and Registration 9
Section 6. Transfer, Split Up, Combination and Exchange of
Right Certificates; Mutilated, Destroyed, Lost
or Stolen Right Certificates 10
Section 7. Exercise of Rights; Purchase Price; Expiration Date 10
Section 8. Cancellation and Destruction of Right Certificates 12
Section 9. Reservation and Availability of Equity Interests 12
Section 10. Equity Interests Record Date 12
Section 11. Adjustment of Purchase Price, Number of Equity
Interests or Number of Rights 13
Section 12. Certificate of Adjusted Purchase Price
or Number of Equity Interests 19
Section 13. Merger or Sale or Transfer of Assets or
Earning Power 19
Section 14. Fractional Rights and Fractional Equity Interests 20
Section 15. Rights of Action 21
Section 16. Agreement of Right Holders 22
Section 17. Right Certificate Holder Not Deemed a Shareholder 22
Section 18. Concerning the Rights Agent 23
Section 19. Merger or Change of Name of Rights Agent 23
Section 20. Duties of Rights Agent 24
Section 21. Change of Rights Agent 26
Section 22. Issuance of New Right Certificates 27
Section 23. Redemption 27
Section 24. Exchange 29
Section 25. Notice of Certain Events 31
Section 26. Notices 31
Section 27. Supplements and Amendments 32
Section 28. Successors 33
Section 29. Benefits of this Agreement 33
Section 30. Severability 33
Section 31. Governing Law 33
Section 32. Counterparts 33
Section 33. Descriptive Headings 33
Signatures 34
Exhibit A - Supplement to the Amended and Restated Articles of
Incorporation of CCB Financial Corporation
Exhibit B - Form of Right Certificate
Exhibit C - Summary of Rights to Purchase Equity Interests
AMENDED AND RESTATED RIGHTS AGREEMENT
This Amended and Restated Rights Agreement ("Agreement") is
made this 1st day of October, 1998, between CCB FINANCIAL
CORPORATION, a North Carolina corporation ("Corporation"), and
CENTRAL CAROLINA BANK AND TRUST COMPANY ("Rights Agent").
W I T N E S S E T H :
WHEREAS, the Board of Directors of the Corporation
determined previously to provide all shareholders of the
Corporation with the opportunity to benefit from the long-term
prospects and value of the Corporation and to ensure that all
shareholders of the Corporation receive fair and equal treatment
in the event of any proposed acquisition of the Corporation; and
WHEREAS, on February 26, 1990, the Board of Directors of the
Corporation authorized and declared a dividend of one preferred
share purchase right ("Right") for each Common Share of the
Corporation outstanding at the close of business on February 26,
1990 (the "Record Date"), each Right representing the right to
purchase a one one-hundredth (1/100) interest in a Preferred
Share, upon the terms and subject to the conditions set forth in
a Rights Agreement, dated February 26, 1990, and further
authorized and directed the issuance of one Right with respect to
each Common Share that shall become outstanding between the
Record Date and the earliest of the Distribution Date, the
Redemption Date and the Final Expiration Date; and
WHEREAS, the Board of Directors has reviewed the Rights
Agreement in light of the circumstances now existing and has
determined that the amendment, restatement and extension of the
term of such Rights Agreement as set forth herein is in the best
interests of the Corporation and its shareholders and will
further the purposes of the Rights Agreement as initially
adopted.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements hereinafter set forth, the parties hereby agree
as follows:
Section 1. Certain Definitions.
For purposes of this Agreement, including the above
preamble, the following terms shall have the meanings indicated:
(a) Acquiring Person. The term "Acquiring Person" shall
mean any Person who or which, together with all Affiliates of
such Person, is the Beneficial Owner of fifteen percent (15%) or
more of the Common Shares of the Corporation then outstanding,
but shall not include (i) the Corporation, (ii) any Subsidiary of
the Corporation, (iii) any employee benefit plan of the
Corporation or any Subsidiary of the Corporation, or any Person
holding Common Shares for or pursuant to the terms of any such
plan, or (iv) any Person who is the Beneficial Owner of one
percent (1%) or less of the Corporation's Common Shares and with
whom the Corporation has entered an agreement, approved by a
majority vote of the Continuing Directors, providing the
acquisition of the Corporation's outstanding Common Shares, and
to whom the Corporation has granted, by a majority vote of the
Continuing Directors, an option to acquire a number of Common
Shares equal to or greater than fifteen percent (15%) of the
number of Common Shares of the Corporation outstanding
immediately prior to such grant (an "Option Owner"); provided,
however, that such exclusion of an Option Owner shall cease, and
such Option Owner shall be deemed an Acquiring Person, upon the
termination or expiration of such agreement other than as a
consequence of the consummation of the acquisition transaction
provided for therein. Notwithstanding the foregoing, no Person
shall become an "Acquiring Person" as the result of an
acquisition of Common Shares of the Corporation which, by
reducing the number of such Common Shares outstanding, increases
the proportionate number of Common Shares of which such Person
(together with its Affiliates) is the Beneficial Owner of fifteen
percent (15%) or more of the Common Shares of the Corporation
then outstanding; provided, however, that if a Person becomes the
Beneficial Owner of fifteen percent (15%) or more of the Common
Shares of the Corporation then outstanding by reason of share
purchases by the Corporation and shall, after such share
purchases by the Corporation, become the Beneficial Owner of any
additional Common Shares of the Corporation, then such Person
shall be deemed to be an "Acquiring Person." Notwithstanding the
foregoing, if the Continuing Directors determine in good faith
that a Person who would otherwise be an "Acquiring Person", as
defined pursuant to the foregoing provisions of this Section
1(a), has become such inadvertently, and such Person divests as
promptly as practicable a sufficient number of Common Shares so
that such Person would no longer be an "Acquiring Person," as
defined pursuant to the foregoing provisions of this Section
1(a), then such Person shall not be deemed to be an "Acquiring
Person" for any purposes of this Agreement. The Corporation's
Board of Directors may, in its discretion, reduce the fifteen
percent (15%) level set forth in this Section 1(a) to ten percent
(10%) in any instance or in one or more instances. Upon such a
reduction in a particular instance, with regard to all matters
applicable to such instance, the phrase "fifteen percent (15%)"
wherever it appears in this Agreement shall be deemed to read
"ten percent (10%)".
(b) Affiliate. The term "Affiliate" (whether referred to
as an "affiliate" of, or a Person "affiliated" with, a specified
Person) shall mean a Person that directly or indirectly through
one or more intermediaries, controls, or is controlled by, or is
under common control with, the Person specified. An Associate of
a Person shall be deemed such Person's "Affiliate".
(c) Associate. The term "Associate," when used to indicate
a relationship with any Person, shall mean:
(i) any corporation, partnership (general or limited),
joint venture, limited liability company or other Person
that is a business organization (other than the Corporation
or a Subsidiary of the Corporation) of which such Person is
an officer, director, partner, manager or member or is,
directly or indirectly, either alone or together with one or
more members of his immediate family, the Beneficial Owner
of ten percent (10%) or more of any class of Equity
Interests;
(ii) any trust or other estate in which such Person has
a substantial beneficial interest or as to which such Person
serves as a trustee or in a similar fiduciary capacity; and
(iii) any relative or spouse of such Person, or any
relative of such spouse, who has the same home as such
Person.
(d) Beneficial Owner. A Person shall be deemed the
"Beneficial Owner" of any Equity Interests:
(i) in which such Person or any of such Person's
Affiliates has direct or indirect beneficial economic
interests;
(ii) which such Person or any of such Person's
Affiliates has (A) the right to acquire (whether such right
is exercisable immediately or only after the passage of
time) pursuant to any agreement, arrangement or
understanding (other than customary agreements with or among
underwriters and selling group members with respect to a
bona fide public offering of Equity Interests), or upon the
exercise of conversion rights, exchange rights, rights
(other than the Rights issued hereunder), warrants or
options, or otherwise; provided, however, that a Person
shall not be deemed the Beneficial Owner of Equity Interests
tendered pursuant to a tender or exchange offer made by or
on behalf of such Person or any of such Person's Affiliates
until such tendered Equity Interests are accepted for
purchase or exchange; and, provided further, that a Person
who is an Option Owner shall not be deemed the Beneficial
Owner of the Common Shares of the Corporation acquirable
under the option granted to such Person by the Corporation
unless and until such Person's exclusion from the definition
of "Acquiring Person" shall terminate; or (B) the right to
vote pursuant to any agreement, arrangement or
understanding; provided, however, that a Person shall not be
deemed the Beneficial Owner of any Equity Interest if the
agreement, arrangement or understanding to vote such Equity
Interest (1) arises solely from a revocable proxy or consent
given to such Person in response to a public proxy or
consent solicitation made pursuant to, and in accordance
with, the applicable Rules and Regulations promulgated under
the Exchange Act, and (2) is not also then reportable under
the Exchange Act on Schedule 13D under the Rules and
Regulations of the SEC (or any comparable or successor
reports); or
(iii) in which another Person has a direct or
indirect beneficial economic interest and with whom such
Person or any of such Person's Affiliates has any agreement,
arrangement or understanding (other than customary
agreements with or among underwriters and selling group
members with respect to a bona fide public offering of
Equity Interests) for the purpose of acquiring, holding,
voting (except to the extent contemplated by the proviso to
Section 1(d)(ii)(B) hereof) or disposing of any such Equity
Interests.
(e) Business Day. The term "Business Day" shall mean any
day other than a Saturday, a Sunday, or a day on which banking
institutions in the City of Durham, North Carolina are authorized
or obligated by law or executive order to close.
(f) Close of Business. The term "Close of Business" on any
given date shall mean 5:00 o'clock, p.m., Durham, North Carolina
time, on such date; provided, however, that if such date is not a
Business Day it shall mean 5:00 o'clock, p.m., Durham, North
Carolina time, on the next succeeding Business Day.
(g) Common Shares. The term "Common Shares" when used with
reference to the Corporation shall mean the authorized shares of
common stock of the Corporation. "Common Shares" when used with
reference to any Person other than the Corporation shall mean the
Equity Interests with the greatest voting power of such other
Person or, if such other Person is a Subsidiary of another
Person, the Person or Persons which ultimately control such first-
mentioned Person.
(h) Continuing Directors. The term "Continuing Directors"
shall mean the members of the Corporation's Board of Directors in
office at any time relevant under this Agreement who are not
Affiliates of any Acquiring Person or any Person who would be
deemed an Acquiring Person in the absence of the "Option Owner"
exclusion from the definitions of "Acquiring Person" and
"Beneficial Owner".
(i) Current Market Price. The term "Current Market Price"
shall have the meaning set forth in Section 11(d).
(j) Distribution Date. The term "Distribution Date" shall
have the meaning set forth in Section 3(b) hereof.
(k) Equity Interests. The term "Equity Interests" shall
mean all types of ownership interests in a Person, including, but
not limited to, capital stock, partnership (general or limited)
interests, joint venture interests, limited liability company
membership interests, and interests in profits, losses and/or
distributions.
(l) Exchange Act. The term "Exchange Act" shall mean the
federal Securities Exchange Act of 1934, as amended and as in
force and effect at each time reference to this definition is
necessary or useful to implement the terms and conditions of this
Agreement.
(m) Final Expiration Date. The term "Final Expiration
Date" shall have the meaning set forth in Section 7(a) hereof.
(n) Offer. The term "Offer" shall mean a written proposal
delivered to the Corporation by any Person who (together with its
Affiliates) was the Beneficial Owner of one percent (1%) or less
of the outstanding Common Shares of the Corporation as of the
date such proposal is delivered to the Corporation, has not
within one (1) year prior to the delivery of such written
proposal been the Beneficial Owner of more than one percent (1%)
of the then outstanding Common Shares of the Corporation, and (at
any time when such Person (together with its Affiliates) was a
Beneficial Owner of more than one percent (1%) of such Common
Shares) publicly disclosed, or caused the public disclosure of,
any intention which relates to or would result in the
acquisition, or influence of control, of the Corporation (an
"Offeror"), and which proposal:
(i) provides for the acquisition of all of the
outstanding shares of Voting Stock held by any Person other
than the Offeror and its Affiliates for cash at the same
price;
(ii) is accompanied by a written opinion of an
investment banking firm which is addressed to the holders of
shares of Voting Stock other than the Offeror and its
Affiliates and states that the price to be paid to such
holders pursuant to the Offer is fair to such holders from a
financial point of view;
(iii) states that the Offeror has obtained written
financing commitments from recognized financing sources,
and/or has on hand cash or cash equivalents, for the full
amount of all financing necessary to consummate the Offer;
and
(iv) requests the Corporation to call a Special Meeting
of the holders of Voting Stock for the purpose of voting on
a resolution requesting the Corporation's Board of Directors
to accept such Offer and contains a written agreement of the
Offeror to pay (or share with any other Offeror) at least
fifty percent (50%) of the Corporation's costs of such
Special Meeting (exclusive of the Corporation's costs of
preparing and mailing proxy material for its own
solicitation).
(o) Offer Date. The term "Offer Date" shall have the
meaning set forth in Section 23(c)(i) hereof.
(p) Person. The term "Person" shall mean any natural
person, corporation, partnership (general or limited), limited
liability company, joint venture, trust, association or other
entity, and shall include any successor (by merger or otherwise)
of such entity.
(q) Preferred Shares. The term "Preferred Shares" shall
mean the series of Preferred Stock of the Corporation having the
rights and preferences set forth in the form of Exhibit A hereof.
(r) Purchase Price. The term "Purchase Price" shall have
the meaning set forth in Section 7(b) hereof.
(s) Redemption Date. The term "Redemption Date" shall have
the meaning set forth in Section 7(a) hereof.
(t) Record Date. The term "Record Date" shall mean the
close of Business on February 26, 1990.
(u) Right Certificate. The term "Right Certificate" shall
have the meaning set forth in Section 3 hereof having the
characteristics set forth in Exhibit B hereto.
(v) Rules and Regulations. The term "Rules and
Regulations" shall mean the applicable rules and regulations
promulgated by the SEC or any applicable federal or state
regulatory agency or authority that has jurisdiction over the
Corporation or any of its subsidiaries at the relevant time.
(w) Securities Act. The term "Securities Act" shall mean
the federal Securities Act of 1933, as amended and as in force
and effect at each time reference to this definition is necessary
or useful to implement the terms and conditions of this
Agreement.
(x) SEC. The term "SEC" shall mean the federal Securities
and Exchange Commission.
(y) Shares Acquisition Date. The term "Shares Acquisition
Date" shall mean the first date of public announcement by the
Corporation or an Acquiring Person that an Acquiring Person has
become such.
(z) Special Meeting. The term "Special Meeting" shall have
the meaning set forth in Section 23(c)(i) hereof.
(aa) Subsidiary. The term "Subsidiary" of any Person shall
mean any other Person of which the Person is the Beneficial Owner
of a majority of the voting power of the voting Equity Interests
thereof.
(bb) Trading Day. The term "Trading Day" shall mean a day
on which the principal national securities exchange on which an
Equity Interest is listed or admitted to trading is open for the
transaction of business, or if the Equity Interest is quoted on
any level of The Nasdaq Stock Market, Inc. ("Nasdaq"), a day on
which the Nasdaq is open for the transaction of business, or if
the Equity Interest is not listed or admitted to trading on any
national securities exchange or quoted on the Nasdaq, a Business
Day.
(cc) Voting Stock. The term "Voting Stock" shall mean (i)
the Common Shares of the Corporation and (ii) any other Equity
Interests of the Corporation entitled to vote generally in the
election of directors or entitled to vote together with such
Common Shares in respect of any merger, share exchange, sale of
all or substantially all of the assets of the Corporation or any
Subsidiary thereof, or the liquidation, dissolution or winding up
of the Corporation.
Section 2. Appointment of Rights Agent.
The Corporation hereby appoints the Rights Agent to continue
to act as agent for the Corporation in accordance with the terms
and conditions hereof, and the Rights Agent hereby accepts such
continuing appointment. The Corporation may from time to time
appoint such co-Rights Agents as it may deem necessary or
desirable upon ten (10) days prior written notice to the Rights
Agent. The Rights Agent shall have no liability for or duty to
supervise any such co-Rights Agent.
Section 3. Issue of Right Certificates.
(a) From the Record Date until, but not including, the
Distribution Date, (i) the Rights will be evidenced (subject to
the provisions of Section 3(b) hereof) by the certificates for
Common Shares of the Corporation registered in the names of the
holders thereof (which certificates shall also be deemed to be
Right Certificates ) and not by separate Right Certificates, and
(ii) the right to receive Right Certificates will be transferable
only in connection with the transfer of such Common Shares. As
soon as practicable after the Distribution Date, the Corporation
will notify the Rights Agent of the occurrence of the
Distribution Date, and the Corporation will prepare and execute,
the Rights Agent will countersign, and the Corporation will send
or cause to be sent (and the Rights Agent will, if requested, at
the Corporation's expense, send) by first-class, insured, postage-
paid mail, to each record holder of the Corporation's Common
Shares as of the Close of Business on the Distribution Date, at
the address of such holder shown on the records of the
Corporation, a Right Certificate, in substantially the form of
Exhibit B hereto (a "Right Certificate"), evidencing one Right
for each Common Share so held. As of the Distribution Date, the
Rights will be evidenced solely by such Right Certificates.
(b) For purposes of this Agreement, the Distribution Date
shall be the earlier of (i) the Close of Business on the tenth
(10th) Business Day after the Shares Acquisition Date or (ii) the
Close of Business on the tenth (10th) Business Day (or such later
date as may be determined by the Board of Directors of the
Corporation, in its sole discretion) after the date of the public
commencement by any Person (other than the Corporation, any
Subsidiary of the Corporation, any employee benefit plan of the
Corporation or of any Subsidiary of the Corporation, or any
Person holding Common Shares of the Corporation for or pursuant
to the terms of any such plan) of, or of the first public
announcement of the intention of any Person (other than the
Corporation, any Subsidiary of the Corporation, any employee
benefit plan of the Corporation or any Subsidiary of the
Corporation, or of any Person holding Common Shares of the
Corporation for or pursuant to the terms of any such plan) to
commence, a tender or exchange offer the consummation of which
would result in any Person becoming the Beneficial Owner of
Common Shares of the Corporation aggregating fifteen percent
(15%) or more of such Common Shares then outstanding (including
any such date which is after the Record Date and prior to the
issuance of the Rights).
(c) As soon as practicable after the date of the adoption
of this Amended and Restated Rights Agreement by the
Corporation's Board of Directors (the "Adoption Date"), the
Corporation shall send a copy of a Summary of Rights to Purchase
Equity Interests, in substantially the form of Exhibit C hereto
(the "Summary of Rights"), by first-class, postage-prepaid mail,
to each record holder of its Common Shares as of and after the
Close of Business on the Adoption Date, at the address of such
holder shown on the records of the Corporation. With respect to
certificates for such Common Shares outstanding as of and after
the Adoption Date, until the Distribution Date, the Rights will
be evidenced by such certificates registered in the names of the
holders thereof. Until the Distribution Date (or the earlier of
the Redemption Date or the Final Expiration Date), the surrender
for transfer of any certificate for Common Shares of the
Corporation outstanding on or after the Adoption 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.
(d) Certificates for Common Shares of the Corporation which
become outstanding after the Adoption Date but prior to the
earliest of the Distribution Date, the Redemption Date or the
Final Expiration Date shall have impressed on, printed on,
written on or otherwise affixed to them the following legend:
This certificate also evidences and entitles the holder
hereof to certain rights ("Rights") as set forth in the
Amended and Restated Rights Agreement between CCB
Financial Corporation and Central Carolina Bank and
Trust Company, as Rights Agent, dated as of October 1,
1998 and as amended and supplemented thereafter (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 CCB
Financial Corporation. Under certain circumstances, as
set forth in the Rights Agreement, such Rights will be
evidenced by separate certificates and will no longer
be evidenced by this certificate. CCB Financial
Corporation will mail to the holder of this certificate
a copy of the Rights Agreement without charge after
receipt of a written request therefor. As described in
the Rights Agreement, Rights issued to any Person
(including its Affiliates) who becomes an Acquiring
Person (as defined in the Rights Agreement) shall
become null and void.
With respect to such certificates containing the foregoing
legend, until the Distribution Date, the Rights associated with
the Common Shares represented by such certificates shall be
evidenced by such certificates alone, and the surrender for
transfer of any such certificates shall also constitute the
transfer of the Rights associated with the Common Shares
represented thereby. In the event that the Corporation purchases
or acquires any of its Common Shares after the Adoption Date but
prior to the Distribution Date, any Rights associated with such
Common Shares shall be deemed canceled and retired so that the
Corporation shall not be entitled to exercise any Rights
associated with the Common Shares which are no longer
outstanding. The Rights Agent shall deem any such Right
Certificates not outstanding if it has actual knowledge that the
Corporation has purchased or acquired the Common Shares with
which they were associated.
Section 4. Form of Right Certificates.
The Right Certificates (and the forms of election to
purchase Preferred Shares and of assignment printed on the
reverse thereof) shall be substantially in the form of Exhibit B
hereto. The Right Certificates shall be in machine printable
format and in a form reasonably satisfactory to the Rights Agent,
and may have such marks of identification or designation and such
legends, summaries or endorsements printed thereon as the
Corporation may deem appropriate and as are not inconsistent with
the provisions of this Agreement, or as may be required to comply
with any applicable law or with any Rule or Regulation made
pursuant thereto or with any rule or regulation of any stock
exchange on which the Rights may from time to time be listed, or
to conform to usage. Subject to the provisions of this
Agreement, the Right Certificates shall entitle the holders
thereof to purchase such number of one one-hundredth (1/100)
interests in a Preferred Share as shall be set forth therein at
the Purchase Price per one one-hundredth (1/100) interest in a
Preferred Share set forth therein and established under Section 7
herein, but the number of such one one-hundredth (1/100)
interests in a Preferred Share and the Purchase Price shall be
subject to adjustment as provided herein.
Section 5. Countersignature and Registration.
(a) The Right Certificates shall be executed on behalf of
the Corporation by its Chairman of the Board, President or any
Executive Vice President, either manually or by facsimile
signature, shall have affixed thereto the Corporation's seal or a
facsimile thereof, and shall be attested by the Secretary or an
Assistant Secretary of the Corporation, either manually or by
facsimile signature. The Right Certificates shall be manually
countersigned and dated by an authorized signatory of the Rights
Agent and shall not be valid for any purpose unless
countersigned. In case any authorized officer of the Corporation
who shall have signed any of the Right Certificates shall cease
to be such an authorized officer of the Corporation before
countersignature by the Rights Agent and issuance and delivery by
the Corporation, such Right Certificates, nevertheless, may be
countersigned by the Rights Agent and issued and delivered by the
Corporation with the same force and effect as though the person
who signed such Right Certificates had not ceased to be such an
officer of the Corporation; and any Right Certificate may be
signed on behalf of the Corporation by any person who, at the
actual date of the execution of such Right Certificate, shall be
an authorized officer of the Corporation to sign such Right
Certificate, although at the date of the adoption of this
Agreement any such person was not such an officer.
(b) Following the Distribution Date, the Rights Agent will
keep or cause to be kept, at its designated office, books for
registration and transfer of the Right Certificates issued
hereunder. Such books shall show the names and addresses of the
respective holders of the Right Certificates, the number of
Rights evidenced on its face by each of the Right Certificates
and the date of each of the Right Certificates. In case any
authorized signatory of the Rights Agent who shall have
countersigned any of the Right Certificates shall cease to be
such signatory before delivery of the Right Certificates by the
Corporation, such Right Certificates, nevertheless, may be issued
and delivered by the Corporation with the same force and effect
as though the person who countersigned such Right Certificates
had not ceased to be such signatory; and any Right Certificate
may be countersigned on behalf of the Rights Agent by any person
who, at the actual date of the countersignature of such Right
Certificate, shall be a proper signatory of the Rights Agent to
countersign such Right Certificate, although at the date of the
execution of this Agreement any such person was not such a
signatory.
Section 6. Transfer, Split Up, Combination and Exchange
of Right Certificates; Mutilated, Destroyed, Lost
or Stolen Right Certificates.
(a) Subject to the provisions of this Agreement, 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
Redemption Date or the Final Expiration Date, any Right
Certificate or Right Certificates (other than Right Certificates
representing Rights that have become void pursuant to Section
11(a)(ii) hereof or that have been exchanged pursuant to Section
24 hereof) may be transferred, split up, combined or exchanged
for another Right Certificate or Right Certificates, entitling
the registered holder to purchase a like number of one one-
hundredth (1/100) interests in a Preferred Share as the Right
Certificate or Right Certificates surrendered then entitled such
holder to purchase. Any registered holder desiring to transfer,
split up, combine or exchange any Right Certificate or Right
Certificates shall make such request in writing delivered to the
Rights Agent, and shall surrender the Right Certificate or Right
Certificates to be transferred, split up, combined or exchanged
at the designated office of the Rights Agent, along with a
signature guarantee and such other and further documentation as
the Rights Agent may reasonably require. Thereupon the Rights
Agent shall countersign and deliver to the Person entitled
thereto a Right Certificate or Right Certificates, as the case
may be, as so requested from the holder of such Right Certificate
or Right Certificates. The Corporation may require payment from
the holders of Rights of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any
transfer, split up, combination or exchange of Right
Certificates.
(b) Upon receipt by the Corporation and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Right Certificate, and, in case of
loss, theft or destruction, of indemnity or security reasonably
satisfactory to them, and, at the Corporation's or the Rights
Agent's request, reimbursement to the Corporation and the Rights
Agent of all reasonable expenses incidental thereto, and upon
surrender of the Right Certificate and a signature guarantee and
such other and further documentation as the Rights Agent may
reasonably require to the Rights Agent and cancellation of the
Right Certificate if mutilated, the Corporation will make and
deliver a new Right Certificate of like tenor to the Rights Agent
for countersignature and delivery to the registered holder in
lieu of the Right Certificate so lost, stolen, destroyed or
mutilated.
Section 7. Exercise of Rights; Purchase Price;
Expiration Date.
(a) The registered holder of any Right Certificate may
exercise the Rights evidenced thereby (except as otherwise
provided herein) in whole or in part at any time after the
Distribution Date upon surrender of the Right Certificate, with
the form of election to purchase on the reverse side thereof duly
executed, to the Rights Agent at the designated office of the
Rights Agent, together with payment of the Purchase Price for
each one one-hundredth (1/100) interest in a Preferred Share as
to which the Rights are exercised, at or prior to the earliest of
(i) the Close of Business on October 1, 2008 ("Final Expiration
Date"), (ii) the time at which the Rights are redeemed as
provided in Section 23 hereof ("Redemption Date"), or (iii) the
time at which such Rights are exchanged as provided in Section 24
hereof. The Corporation shall provide the Rights Agent with a
prompt written notice of the occurrence of any of the events
provided for in this Section 7(a).
(b) The Purchase Price for each one one-hundredth (1/100)
interest in a Preferred Share pursuant to the exercise of a Right
initially shall be One Hundred Eighty-Seven Dollars and Fifty
Cents ($187.50), shall be subject to adjustment from time to time
as provided in this Agreement and shall be payable in lawful
money of the United States of America in accordance with Section
7(c) below.
(c) Upon receipt of a Right Certificate representing
exercisable Rights, with the form of election to purchase duly
executed, accompanied by payment of the Purchase Price for the
Preferred Shares to be purchased and an amount equal to any
applicable transfer tax required to be paid by the holder of such
Right Certificate in accordance with Section 9 hereof in cash or
by certified check, cashier's check or money order payable to the
order of the Corporation, the Rights Agent shall thereupon
promptly (i) (A) requisition from any transfer agent of the
Preferred Shares Certificates for the number of Preferred Shares
to be purchased and the Corporation hereby irrevocably authorizes
its transfer agent to comply with all such requests, or (B)
requisition from the depositary agent depositary receipts
representing such number of one one-hundredth (1/100) interests
in a Preferred Share as are to be purchased (in which case
certificates for the Preferred Shares represented by such
receipts shall be deposited by the transfer agent with the
depositary agent) and the Corporation hereby directs the
depositary agent to comply with all such requests, (ii) when
appropriate, requisition from the Corporation the amount of cash
to be paid in lieu of issuance of fractional Preferred Shares in
accordance with Section 14 hereof, (iii) after receipt of such
certificates or depositary receipts, cause the same to be
delivered to or upon the order of the registered holder of such
Right Certificate, registered in such name or names as may be
designated by such holder and (iv) when appropriate, after
receipt, deliver such cash to or upon the order of the registered
holder of such Right Certificate. The provisions of this Section
7(c) shall apply whenever cash or Equity Interests (such as
Common Shares) may be received in lieu of the Preferred Shares
upon exercise of the Rights and surrender of the Right
Certificates.
(d) In case the registered holder of any Right Certificate
shall exercise less than all the Rights evidenced thereby, a new
Right Certificate evidencing Rights equivalent to the Rights
remaining unexercised shall be issued by the Rights Agent to the
registered holder of such Right Certificate or to such holder's
authorized assigns, subject to the provisions of Section 14
hereof.
(e) The Corporation covenants and agrees that it will cause
to be reserved and kept available out of its authorized and
unissued Preferred Shares, the number of Preferred Shares that
will be sufficient to permit the exercise in full of all
outstanding Rights in accordance with this Section 7.
(f) In those circumstances where a holder of a Right may
exercise that Right under more than one of Sections 7(a),
11(a)(ii) and 13, subject to the provisions of this Agreement
applicable to such Sections, the holder may elect to exercise
such Right under the provisions of any such Section under which
such exercise is then permitted.
Section 8. Cancellation and Destruction of Right
Certificates.
All Right Certificates surrendered for the purpose of
exercise, transfer, split up, combination or exchange shall, if
surrendered to the Corporation or to any of its agents, be
delivered to the Rights Agent for cancellation or in canceled
form, or, if surrendered to the Rights Agent, shall be canceled
by it, and no Certificates shall be issued in lieu thereof except
as expressly permitted by any of the provisions of this Rights
Agreement. The Corporation shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall so cancel
and retire, any other Right Certificate purchased or acquired by
the Corporation otherwise than upon the exercise thereof. The
Rights Agent shall deliver all canceled Right Certificates to the
Corporation, or shall, at the written request of the Company,
destroy such canceled Right Certificates, and in such case shall
deliver a certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Equity
Interests.
(a) The Corporation covenants and agrees that it will take
all such action as may be necessary to ensure that any Equity
Interest delivered upon exercise of a Right shall, at the time of
delivery of the certificate for such Equity Interest (subject to
payment of the Purchase Price), be duly authorized, validly
issued and fully paid and nonassessable.
(b) The Corporation further covenants and agrees that it
will pay when due and payable any and all federal and state
transfer taxes and charges which may be payable in respect of
the issuance or delivery of the Right Certificates or of Equity
Interests upon the exercise of Rights. The Corporation shall
not, however, be required to pay any transfer tax which may be
payable in respect of any transfer or delivery of Right
Certificates to a Person other than, or the issuance or delivery
of certificates or depositary receipts for Equity Interests in a
name other than that of, the registered holder of the Right
Certificates evidencing Rights surrendered for transfer, delivery
or exercise or to issue or to deliver any certificates or
depositary receipts for Equity Interests upon the exercise of any
Rights until any such tax shall have been paid (any such tax
being payable by the holder of such Right Certificates at the
time of surrender) or until it has been established to the
Corporation's reasonable satisfaction that no such tax is due.
Section 10. Equity Interests Record Date.
Each Person in whose name any certificate for an Equity
Interest is issued upon the exercise of a Right shall for all
purposes be deemed to have become the holder of record of the
Equity Interest represented thereby on, and such certificate
shall be dated, the date upon which the Right Certificate
evidencing such Right 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 transfer books of the Corporation
respecting such Equity Interest are closed, such Person shall be
deemed to have become the record holder of such Equity Interest
on, and such certificate shall be dated, the next succeeding
Business Day on which the applicable transfer books of the
Corporation are open. Prior to the exercise of the Rights
evidenced thereby, the holder of a Right Certificate shall not be
entitled to any rights of a holder of any Equity Interests 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
Corporation, except as provided herein.
Section 11. Adjustment of Purchase Price, Number of
Equity Interests or Number of Rights.
The Purchase Price, the number of Equity Interests therein
covered by each Right and the number of Rights outstanding are
subject to adjustment from time to time as provided in this
Section 11.
(a) (i) In the event the Corporation shall at any time
after the date of this Agreement (A) declare a dividend on
outstanding Preferred Shares payable in Preferred Shares, (B)
subdivide the outstanding Preferred Shares, (C) combine the
outstanding Preferred Shares into a smaller number of Preferred
Shares or (D) issue any of its Equity Interests in a
reclassification of the Preferred Shares (including any such
reclassification in connection with a merger in which the
Corporation is the continuing or surviving corporation), except
as otherwise provided in this Section 11(a), the Purchase Price
in effect at the time of the record date for such dividend or of
the effective date of such subdivision, combination or
reclassification, and the number and kind of Equity Interests
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 Equity
Interests which, if such Right had been exercised immediately
prior to such date and at a time when the Equity Interests
transfer books of the Corporation were open, he would have owned
upon such exercise and been entitled to receive by virtue of such
dividend, subdivision, combination or reclassification; provided,
however, that in no event shall the consideration to be paid upon
the exercise of one (1) Right be less than the aggregate par
value, if any, of the Equity Interests issuable upon exercise of
one (1) Right.
(ii) Subject to Section 24 hereof, in the event any
Person shall become an Acquiring Person, each holder of a Right
shall thereafter have a right to receive, upon exercise thereof
at a price equal to the then current Purchase Price multiplied by
the number of one one-hundredth (1/100) interests in a Preferred
Share for which a Right is then exercisable, in accordance with
the terms of this Agreement and in lieu of interests in Preferred
Shares, such number of Common Shares of the Corporation as shall
equal the result obtained by (A) multiplying the then current
Purchase Price by the number of one one-hundredth (1/100)
interests in a Preferred Share for which a Right is then
exercisable and dividing that product by (B) fifty percent (50%)
of the then Current Market Price of the Corporation's Common
Shares on the date such Person became an Acquiring Person. In
the event that any Person shall become an Acquiring Person and
the Rights shall then be outstanding, the Corporation shall not
take any action which would eliminate or diminish the benefits
intended to be afforded by the Rights. From and after the time
any Person becomes an Acquiring Person, any Rights of which such
Acquiring Person (or any Affiliate thereof) is the Beneficial
Owner shall be void and any holder of such Rights shall
thereafter have no right to exercise such Rights under any
provision of this Agreement. No Right Certificate shall be
issued pursuant to Section 3 hereof that represents Rights the
Beneficial Owner of which would be a Person (or any Affiliate
thereof) whose Rights would be void pursuant to the preceding
sentence; no Right Certificate shall be issued at any time upon
the transfer of any Rights to an Acquiring Person (or any
Affiliate thereof), or to any nominee of such Acquiring Person or
Affiliate, whose Rights would be void pursuant to the preceding
sentence. Where a Right Certificate is delivered to the Rights
Agent for transfer to an Acquiring Person (or an Affiliate
thereof), and the Rights Agent has actual knowledge or has
received notice from the Corporation that the transferee is an
Acquiring Person (or an Affiliate thereof), that Right
Certificate shall be canceled. The Rights Agent shall have no
liability for canceling Right Certificates so delivered for
transfer.
(iii) In the event that there shall not be sufficient
Common Shares of the Corporation authorized but unissued to
permit the exercise in full of the Rights in accordance with
Section 11(a)(ii), (A) the Corporation shall take all such action
as may be necessary to authorize additional Common Shares for
issuance upon exercise of the Rights or (B) the Corporation, at
its option, notwithstanding any other provision of this
Agreement, with respect to each Right, to the extent permitted by
applicable law and any agreements or instruments in effect on the
Distribution Date to which the Corporation is a party, upon
exercise of the Rights and payment of the Purchase Price
therefor, in lieu of issuing such additional Common Shares, (x)
may issue another Equity Interest having a Current Market Value
as of the Trading Day immediately prior to the date of issuance
equal to Current Market Value of the Corporation's Common Shares
on such Trading Day, or (y) may pay cash in an amount equal to
the excess, if any, of the Current Market Value of a Common Share
as of the Trading Day immediately prior to the date of payment
over the Purchase Price per Right. To the extent that any legal
or contractual restrictions prevent the Corporation from paying
the full amount of cash and/or Equity Interests payable in
accordance with the foregoing sentence, the Corporation shall pay
to holders of the Rights as to which such payments are being made
all amounts which are not then restricted on a pro rata basis.
The Corporation shall continue to make payments on a pro rata
basis as funds become available until such payments have been
paid in full. The Corporation shall provide the Rights Agent
with written notice of any election made pursuant to this Section
11(a)(iii).
(iv) In the event that the Rights become exercisable or
exchangeable under the provisions of this Agreement, the
Corporation covenants and agrees to use its best efforts, to (A)
cause a registration statement under the Securities Act, or if
the Securities Act is not applicable, to the comparable federal
or state securities laws applicable to the Corporation's Equity
Interests, as in effect on the date in question, and under the
applicable Rules and Regulations thereunder, on an appropriate
form, with respect to the Equity Interests purchasable upon
exercise of the Rights or exchangeable for such Rights, to remain
effective (with a prospectus or offering circular at all times
meeting the requirements of the Securities Act or any other
applicable federal or state law) until the Final Expiration Date;
(B) qualify or register the Equity Interests purchasable upon
exercise of the Rights under the blue sky laws of such
jurisdictions as may be necessary or appropriate; and (C) list
the Equity Interests purchasable upon exercise of the Rights on
each national securities exchange on which Equity Interests of
the same class or series were listed prior to exercisability of
the Rights or, if such Equity Interests are not listed or
admitted to the trading on any national securities exchange,
qualify such Equity Interests for quotation on the Nasdaq or such
other comparable system then in use. The Corporation covenants
and agrees to bear the full cost of any registration,
qualification or listing required under this Section 11(a)(iv).
(b) In case the Corporation shall fix a record date for the
issuance of rights, options or warrants to all holders of
Preferred Shares entitling them (for a period expiring within
forty-five (45) calendar days after such record date) to
subscribe for or purchase Preferred Shares (or Equity Interests
having the same rights, privileges and preferences as the
Preferred Shares ("equivalent preferred shares")) or Equity
Interests convertible into Preferred Shares or equivalent
preferred shares at a price per Preferred Share or equivalent
preferred share (or having a conversion price per share, if an
Equity Interest convertible into Preferred Shares or equivalent
preferred shares) less than the then Current Market Price of the
Preferred Shares 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
Preferred Shares outstanding on such record date plus the number
of Preferred Shares which the aggregate offering price of the
total number of Preferred Shares and/or equivalent preferred
shares so to be offered (and/or the aggregate initial conversion
price of the convertible Equity Interests so to be offered) would
purchase at such Current Market Price and the denominator of
which shall be the number of Preferred Shares outstanding on such
record date plus the number of additional Preferred Shares and/or
equivalent preferred shares to be offered for subscription or
purchase (or into which the convertible Equity Interests so to be
offered are initially convertible); provided, however, that in no
event shall the consideration to be paid upon the exercise of one
(1) Right be less than the aggregate par value, if any, of the
Equity Interests of the Corporation issuable upon exercise of one
(1) Right. In case such subscription price may be paid in a
consideration part or all of which shall be in a form other than
cash, the value of such consideration shall be as determined in
good faith by the Board of Directors of the Corporation, whose
determination shall be described in a statement filed with the
Rights Agent and binding upon the Rights Agent and the holders of
the Rights. Such adjustments shall be made successively whenever
such a record date is fixed; and in the event that such rights,
options or warrants are not so issued, the Purchase Price shall
be adjusted to be the Purchase Price which would then be in
effect if such record date had not been fixed.
(c) In case the Corporation shall fix a record date for the
making of a distribution to all holders of the Preferred Shares
(including any such distribution made in connection with a merger
in which the Corporation is the continuing or surviving
corporation) of evidences of indebtedness or assets (other than a
regular quarterly cash dividend or a dividend payable in
Preferred Shares) or subscription rights or warrants (excluding
those referred to in Section 11(b) hereof), the Purchase Price to
be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to
such record date by a fraction, the numerator of which shall be
the then Current Market Price of the Preferred Shares on such
record date, less the fair market value (as determined in good
faith by the Board of Directors of the Corporation, whose
determination shall be described in a statement filed with the
Rights Agent and binding upon the Rights Agent and the holders of
the Rights) of the portion of the assets or evidences of
indebtedness so to be distributed or of such subscription rights
or warrants applicable to one (1) Preferred Share and the
denominator of which shall be such Current Market Price of the
Preferred Shares; provided, however, that in no event shall the
consideration to be paid upon the exercise of one (1) Right be
less than the aggregate par value, if any, of the Equity
Interests of the Corporation to be issued upon exercise of one
(1) Right. Such adjustments shall be made successively whenever
such a record date is fixed; and in the event that such
distribution is not so made, the Purchase Price shall again be
adjusted to be the Purchase Price which would then be in effect
if such record date had not been fixed.
(d) (i) For the purpose of any computation hereunder, the
"Current Market Price" of any Equity Interests (a "Security" for
the purpose of this Section 11(d)(i)) on any date shall be deemed
to be the average of the daily closing prices per share of such
Security for the thirty (30) consecutive Trading Days immediately
prior to such date (or, when specifically provided otherwise
herein, the Trading Day or the period of Trading Days so
specifically provided); provided, however, that in the event that
the Current Market Price of the Security is determined during a
period following the announcement by the issuer of such Security
of (A) a dividend or distribution on such Security payable in
shares or units of such Security or Equity Interests convertible
into such shares or units, or (B) any subdivision, combination or
reclassification of such Security and prior to the expiration of
thirty (30) Trading Days after the ex-dividend date for such
dividend or distribution, or the record date for such
subdivision, combination or reclassification, then, and in each
such case, the Current Market Price shall be appropriately
adjusted to reflect the Current Market Price equivalent of such
Security. The closing price for each Trading Day shall be the
last sale price, regular way, or, in case no such sale takes
place on such day, the average of the closing bid and asked
prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock
Exchange, or, if the Security is not listed or admitted to
trading on the New York Stock Exchange, as reported in the
principal consolidated transaction reporting system with respect
to securities listed on the principal national securities
exchange on which the Security is listed or admitted to trading,
or, if the Security is not listed or admitted to trading on any
national securities exchange, the 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 Nasdaq or such other
system then in use, or, if on any such date the Security is
publicly traded but is not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Security
selected by the Board of Directors of the Corporation.
(ii) For the purpose of any computation hereunder, the
"Current Market Price" of the Preferred Shares shall be
determined in accordance with the method set forth in Section
11(d)(i) hereof. If the Preferred Shares are not publicly
traded, the "Current Market Price" of a Preferred Share shall be
conclusively deemed to be one hundred (100) times the Current
Market Price of the Common Shares of the Corporation as
determined pursuant to Section 11(d)(i) hereof (appropriately
adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof). If neither the
Corporation's Common Shares nor its Preferred Shares are publicly
held or so listed or traded, "Current Market Price" shall mean
the fair value per share as determined in good faith by the Board
of Directors of the Corporation, whose determination shall be
described in a statement filed with the Rights Agent and binding
upon the Rights Agent and the holders of the Preferred Shares.
(e) No adjustment in the Purchase Price shall be required
unless such adjustment would require an increase or decrease of
at least one percent (1%) in the Purchase Price; provided,
however, that any adjustments which by reason of this Section
11(e) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All
calculations under this Section 11 shall be made to the nearest
cent or to the nearest one one-millionth (1/1,000,000) interest
in a Preferred Share or one ten-thousandth (1/10,000) interest in
any other Equity Interest as the case may be. Notwithstanding
the first sentence of this Section 11(e), any adjustment required
by this Section 11 shall be made no later than the earlier of (i)
three (3) years from the date of the transaction which requires
such adjustment or (ii) the date of the expiration of the right
to exercise any Rights.
(f) If as a result of an adjustment made pursuant to
Section 11(a) hereof, the holder of any Right thereafter
exercised shall become entitled to receive any Equity Interests
of the Corporation other than Preferred Shares or interests
therein, thereafter the amount of such Equity Interests 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
Preferred Shares contained in Section 11(a) through (c),
inclusive, and the provisions of Sections 7, 9, 10, 13 and 24
hereof with respect to the Preferred Shares shall apply on like
terms to any such other Equity Interests. The Corporation shall
provide the Rights Agent with prompt written notice of any such
election to utilize other Equity Interests, the type of Equity
Interests and the exchange ratio of Right Certificates therefor.
(g) All Rights originally issued by the Corporation
subsequent to any adjustment made to the Purchase Price hereunder
shall evidence the right to purchase, at the adjusted Purchase
Price, the number of one one-hundredth (1/100) interests in a
Preferred Share purchasable from time to time hereunder upon
exercise of the Rights, all subject to further adjustment as
provided herein.
(h) Unless the Corporation shall have exercised its
election as provided in Section 11(a)(i) 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 one one-hundredth (1/100)
interests in a Preferred Share (calculated to the nearest one one-
millionth (1/1,000,000) interest in a Preferred Share) obtained
by (i) multiplying (x) the number of one one-hundredths (1/100)
interests covered by a Right immediately prior to this adjustment
by (y) the Purchase Price in effect immediately prior to such
adjustment of the Purchase Price and (ii) dividing the product so
obtained by the Purchase Price in effect immediately after such
adjustment of the Purchase Price.
(i) The Corporation may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of Rights,
in substitution for any adjustment in the number of one one-
hundredth (1/100) interests in a Preferred Share purchasable upon
the exercise of a Right. Each of the Rights outstanding after
such adjustment of the number of Rights shall be exercisable for
the number of one one-hundredth (1/100) interests in a Preferred
Share for which a Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such adjustment
of the number of rights shall become that number of Rights
(calculated to the nearest one ten-thousandth (1/10,000))
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 Corporation shall make a public announcement of its election
to adjust the number of Rights, and shall simultaneously provide
the Rights Agent with written notice of such election to adjust,
which announcement and notice shall indicate the record date for
the adjustment, and, if known at the time, the amount of the
adjustment to be made. This record date may be the date on which
the Purchase Price is adjusted or any day thereafter, but, if the
Right Certificates have been issued, shall be at least ten (10)
days later than the date of the public announcement. If Right
Certificates have been issued, upon each adjustment of the number
of Rights pursuant to this Section 11(i), the Corporation shall,
as promptly as practicable, cause to be distributed to holders of
record of Right Certificates on such record date right
Certificates evidencing, subject to Section 14 hereof, the
additional Rights to which such holders shall be entitled as a
result of such adjustment, or at the option of the Corporation,
shall cause to be distributed to such holders of record in
substitution and replacement for the Right Certificates held by
such holders prior to the date of adjustment, and upon surrender
thereof along with a signature guarantee and such other and
further documentation as the Rights Agent may reasonably require,
if required by the Corporation, new Right Certificates evidencing
all the Rights to which such holders shall be entitled after such
adjustment. The Corporation shall provide the Rights Agent with
written notice of the occurrence of any distribution effected
pursuant to the foregoing. Right Certificates so to be
distributed shall be issued, executed and countersigned in the
manner provided for herein and shall be registered in the names
of the holders of record of Right Certificates on the record date
specified in the public announcement.
(j) Irrespective of any adjustment or change in the
Purchase Price or the number of one one-hundredth (1/100)
interests in a Preferred Share issuable upon the exercise of the
Rights, the Right Certificates theretofore and thereafter issued
may continue to express the Purchase Price and the number of one
one-hundredth interests in a Preferred Share which were expressed
in the initial Right Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below one one-hundredth (1/100) of
the then par value, if any, of the Preferred Shares issuable upon
exercise of the Rights, the Corporation shall take any corporate
action which may, in the opinion of its counsel, be necessary in
order that the Corporation may validly and legally issue fully
paid and nonassessable Preferred Shares at such adjusted Purchase
Price.
(l) In any case in which this Section 11 shall require that
an adjustment in the Purchase Price be made effective as of a
record date for a specified event, the Corporation may elect to
defer until the occurrence of such event the issuing to the
holder of any Right exercised after such record date of the
Preferred Shares and other Equity Interests of the Corporation,
if any, issuable upon such exercise over and above the Preferred
Shares and other Equity Interests of the Corporation, if any,
issuable upon such exercise on the basis of the Purchase Price in
effect prior to such adjustment; provided, however, that the
Corporation shall deliver to such holder a due bill or other
appropriate instrument evidencing such holder's right to receive
such additional Preferred Shares or other Equity Interests upon
the occurrence of the event requiring such adjustment. The
Corporation shall give the Rights Agent prompt written notice of
its election to defer the issuance of Preferred Shares.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Board of Directors of the Corporation shall
be entitled to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this Section
11, as and to the extent that it in its sole discretion shall
determine to be advisable in order that any consolidation or
subdivision of the Preferred Shares, issuance wholly for cash of
any Preferred Shares at less than the Current Market Price of
such Preferred Shares, issuance wholly for cash of Preferred
Shares or other Equity Interests which by their terms are
convertible into or exchangeable for Preferred Shares, dividends
on Preferred Shares payable in Preferred Shares or issuance of
rights, options or warrants referred to hereinabove in Section
11(b) hereof, hereafter made by the Corporation to holders of its
Preferred Shares shall not be taxable to such shareholders.
(n) In the event that at any time after the date of this
Agreement and prior to the Distribution Date, the Corporation
shall (i) declare or pay any dividend on its Common Shares
payable in Common Shares or (ii) effect a subdivision,
combination or consolidation of its Common Shares (by
reclassification or otherwise than by payment of dividends in
Common Shares) into a greater or lesser number of Common Shares,
then in any such case (A) the number of one one-hundredth (1/100)
interests in a Preferred Share purchasable after such event upon
proper exercise of each Right shall be determined by multiplying
the number of one one-hundredth (1/100) interests in a Preferred
Share so purchasable immediately prior to such event by a
fraction, the numerator of which is the number of Common Shares
of the Corporation outstanding immediately before such event and
the denominator of which is the number of such Common Shares
outstanding immediately after such event, and (B) each Common
Share of the Corporation outstanding immediately after such event
shall have issued with respect to it that number of Rights which
each such Common Share outstanding immediately prior to such
event had issued with respect to it. The adjustments provided
for in this Section 11(n) shall be made successively whenever
such a dividend is declared or paid or such a subdivision,
combination or consolidation is effected.
Section 12. Certificate of Adjusted Purchase Price or
Number of Equity Interests.
Whenever an adjustment is made as provided in Sections 11
and 13 hereof, the Corporation shall promptly (a) prepare a
certificate setting forth such adjustment, including, but not
limited to, the adjusted Purchase Price and a brief statement of
the facts accounting for such adjustment, (b) file with the
Rights Agent and with the transfer agents for its Equity
Interests a copy of such certificate and (c) mail a brief summary
thereof to each holder of a Right Certificate in accordance with
Section 25 hereof. The Rights Agent may rely, and shall incur no
liability for relying upon, the most recent such certificate
which it has received.
Section 13. Merger or Sale or Transfer of Assets or
Earning Power.
In the event, directly or indirectly (a) the Corporation
shall merge with and into any other Person, (b) any Person shall
merge with and into the Corporation and the Corporation shall be
the continuing or surviving corporation of such merger and, in
connection with such merger, all or part of the Common Shares of
the Corporation shall be changed into or exchanged for the Equity
Interests of any other Person (or the Corporation) or cash or any
other property, or (c) the Corporation shall sell or otherwise
transfer (or one or more of its Subsidiaries shall sell or
otherwise transfer), in one or more transactions, assets or
earning power aggregating fifty percent (50%) or more of the
assets or earning power of the Corporation and its Subsidiaries
(taken as a whole) to any other Person other than the Corporation
or one or more of its wholly-owned Subsidiaries, then, and in
each such case, proper provision shall be made so that (i) each
holder of a Right (except as otherwise provided herein) shall
thereafter have the right to receive, upon the exercise thereof
at a price equal to the then current Purchase Price multiplied by
the number of one one-hundredth (1/100) interests in a Preferred
Share for which a Right is then exercisable, in accordance with
the terms of this Agreement and in lieu of Preferred Shares, such
number of Common Shares of such other Person (including the
Corporation as successor thereto or as the surviving corporation)
as shall equal the result obtained by (A) multiplying the then
current Purchase Price by the number of one one-hundredth (1/100)
interests in a Preferred Share for which a Right is then
exercisable and dividing that product by (B) fifty percent (50%)
of the then Current Market Price of the Common Shares of such
other Person (determined pursuant to Section 11(d) hereof) on the
date of consummation of such merger, sale or transfer; (ii) the
issuer of such Common Shares shall thereafter be liable for, and
shall assume, by virtue of such merger, sale or transfer, all the
obligations and duties of the Corporation pursuant to this
Agreement; (iii) the term "Corporation" shall thereafter be
deemed to refer to such issuer; and (iv) such issuer shall take
such steps (including, but not limited to, the reservation of a
sufficient number of its Common Shares in accordance with Section
9 hereof and the making of payments in cash and/or securities
equal to the Purchase Price in accordance with Section 11(a)(iii)
hereof) in connection with such consummation as may be necessary
to assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be, in relation to its
Common Shares thereafter deliverable upon the exercise of the
Rights. The Corporation shall not consummate any such merger,
sale or transfer unless prior thereto the Corporation and such
issuer shall have executed and delivered to the Rights Agent a
supplemental agreement so providing. The prior written consent
of the Rights Agent must be obtained in connection with any such
supplemental agreement which alters the rights or duties of the
Rights Agent. The Corporation shall not enter into any
transaction of the kind referred to in this Section 13 if at the
time of such transaction there are any agreements or arrangements
which, as a result of the consummation of such transaction, would
eliminate or substantially diminish the benefits intended to be
afforded by the Rights. The provisions of this Section 13 shall
similarly apply to successive mergers or consolidations or sales
or other transfers. The Rights Agent may rely, and shall be
fully protected in relying, on a certificate of the Corporation
stating that the provisions of this Section 13 have been
fulfilled.
Section 14. Fractional Rights and Fractional Equity
Interests.
(a) The Corporation shall not be required to issue
fractions of Rights or to distribute Right Certificates which
evidence fractional Rights. In lieu of such fractional Rights,
there shall be paid to the registered holders of the Right
Certificates with regard to which such fractional Rights would
otherwise be issuable, an amount in cash equal to the same
fraction of the Current Market Value of a whole Right. For the
purposes of this Section 14(a), the Current Market Value of a
whole Right shall be the closing price of the Rights for the
Trading Day immediately prior to the date on which such
fractional Rights would have been otherwise issuable. The
closing price for any Trading Day shall be the last sale price,
regular way, or, in case no such sale takes place on such day,
the average of the closing bid and asked prices, regular way, in
either case as reported in the principal consolidated transaction
reporting system with respect to securities listed or admitted to
trading on the New York Stock Exchange, or, if the Rights are not
listed or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting
system with respect to securities listed on the principal
national securities exchange on which the Rights are listed or
admitted to trading, or, if the Rights are not listed or admitted
to trading on any national securities exchange, the last quoted
price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by
Nasdaq or such other system then in use, or, if on any such date
the Rights are not quoted by any such organization, the average
of the closing bid and asked prices as furnished by a
professional market maker making a market in the Rights selected
by the Board of Directors of the Corporation. If on any such
date no such market maker is making a market in the Rights, the
fair value of the Rights on such date as determined in good faith
by the Board of Directors of the Corporation shall be used.
(b) The Corporation shall not be required to issue
fractional interests in Equity Interests (other than fractional
interests which are integral multiples of one one-hundredth of a
Preferred Share) upon exercise of the Rights or to distribute
certificates which evidence fractional interests in Equity
Interests (other than fractions which are integral multiples of
one one-hundredth (1/100) of such Equity Interest). Fractional
interests in Equity Interests in integral multiples of one one-
hundredth (1/100) of an Equity Interest may, at the election of
the Corporation, be evidenced by depositary receipts, pursuant to
an appropriate agreement between the Corporation and a depositary
selected by it; provided, however, that such agreement shall
provide that the holders of such depositary receipts shall have
all the rights, privileges and preferences to which they are
entitled as beneficial owners of the Equity Interests represented
by such depositary receipts; and, provided further, that the
Corporation shall notify the Rights Agent of any such election
pursuant to this Section 14(b). In lieu of fractional interests
in Equity Interests that are not integral multiples of one one-
hundredth (1/100) of an Equity Interest, the Corporation shall
pay to the registered holders of Right Certificates at the time
such Rights are exercised as herein provided an amount in cash
equal to the same fraction of the Current Market Value of one (1)
Equity Interest. For the purposes of this Section 14(b), the
Current Market Value of an Equity Interest shall be the closing
price of such Equity Interest (as determined pursuant to the
second sentence of Section 11(d)(i) hereof) for the Trading Day
immediately prior to the date of such exercise.
(c) Upon accepting a Right, the holder of such Right
expressly waives such holder's right to receive any fractional
Rights or fractional Equity Interests upon exercise of a Right
(except as provided above).
Section 15. Rights of Action.
All rights of action in respect of this Agreement, excepting
the rights of action given to the Rights Agent under Section 18
hereof, are vested in the respective registered holders of the
Right Certificates (and, prior to the Distribution Date, the
registered holders of the Corporation's Common Shares); and any
registered holder of any Right Certificate (or, prior to the
Distribution Date, of such Common Shares), without the consent of
the Rights Agent or of the holder of any other Right Certificate
(or, prior to the Distribution Date, of such Common Shares), may,
in his own behalf and for his own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the
Corporation to enforce, or otherwise act in respect of, his right
to exercise the Rights evidenced by such Right Certificate in the
manner provided in such Right Certificate and in this Agreement.
Without limiting the foregoing or any remedies available to the
holders of Rights, it is specifically acknowledged that the
holders of Rights would not have an adequate remedy at law for
any beach of this Agreement and will be entitled to specific
performance of the obligations under, and injunctive relief
against actual or threatened violations of the obligations of any
Person subject to, this Agreement.
Section 16. Agreement of Right Holders.
Every holder of a Right, by accepting the same, consents and
agrees with the Corporation 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
Corporation's Common Shares;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if
surrendered at the designated office of the Rights Agent, duly
endorsed or accompanied by a proper instrument of transfer along
with a signature guarantee and such other and further
documentation as the Rights Agent may reasonably require; and
(c) the Corporation and the Rights Agent may deem and treat
the Person in whose name the Right Certificate (or, prior to the
Distribution Date, the associated Common Shares certificate) as
registered as the absolute owner thereof and of the Rights
evidenced thereby (notwithstanding any notations of ownership or
writing on the Right Certificates or the associated Common Shares
certificate made by anyone other than the Corporation or the
Rights Agent) for all purposes whatsoever, and neither the
Corporation nor the Rights Agent shall be affected by any notice
to the contrary.
Section 17. Right Certificate Holder Not Deemed a
Shareholder.
No holder, as such, of any Right Certificate shall be
entitled to vote, receive dividends or be deemed for any purpose
the holder of any Equity Interest of the Corporation which may at
any time be issuable on the exercise of the Rights represented
thereby, nor shall anything contained herein or in any Right
Certificate be construed to confer upon the holder of any Right
Certificate, as such, any of the rights of a shareholder of the
Corporation 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 25 hereof), or to
receive dividends or subscription rights, or otherwise, until the
Right or Rights evidenced by such Right Certificate shall have
been exercised in accordance with the provisions hereof.
Section 18. Concerning the Rights Agent.
(a) The Corporation agrees to pay to the Rights Agent such
compensation as shall be agreed to in writing between the
Corporation and the Rights Agent for all services rendered by it
hereunder and, from time to time, on demand of the Rights Agent,
its reasonable expenses and counsel fees and other disbursements
(including reasonable attorneys' disbursements) incurred in the
administration and execution of this Agreement and the exercise
and performance of its duties hereunder. The Corporation also
agrees to indemnify the Rights Agent for, and to hold it harmless
against, any loss, liability, or expense, incurred without
negligence, bad faith or willful misconduct on the part of the
Rights Agent, for anything done or omitted by the Rights Agent in
connection with the acceptance and administration of this
Agreement, including reasonable attorneys' fees and expenses and
the costs and expenses of defending against any claim of
liability in the premises. This Section 18(a) shall survive the
termination of this Agreement.
(b) The Rights Agent shall be protected and shall incur no
liability for, or in respect of any action taken, suffered or
omitted by it in connection with, its administration of this
Agreement in reliance upon any Right Certificate or certificate
for any Equity Interest of the Corporation, instrument of
assignment or transfer, power of attorney, endorsement,
affidavit, letter, notice, direction, consent, certificate,
statement, instructions, or other paper or document believed by
it to be genuine and to be signed and executed by the proper
person or persons and, where necessary, verified or acknowledged,
or otherwise upon the advice of counsel as set forth in Section
20 hereof.
Section 19. Merger or Change of Name of Rights Agent.
(a) Any Person into which the Rights Agent or any successor
Rights Agent may be merged or any corporation resulting from any
merger to which the Rights Agent or any successor Rights Agent
shall be a party, or any Person succeeding to the stock transfer
or corporate trust business of the Rights Agent or any successor
Rights Agent, shall be the successor to the Rights Agent under
this Agreement without the execution or filing of any paper or
any further act on the part of any of the parties hereto,
provided that such Person would be eligible for appointment as a
successor Rights Agent under the provisions of Section 21 hereof.
In case at the time such successor Rights Agent shall succeed to
the agency created by this Agreement and any of the Right
Certificates shall have been countersigned but not delivered, any
such successor Rights Agent may adopt the Right Certificates so
countersigned; and in case at that time any of the Right
Certificates shall not have been countersigned, any successor
Rights Agent may countersign such Right Certificates either in
the name of the predecessor Rights Agent or in the name of the
successor Rights Agent; and in all such cases such Right
Certificates shall have the full force provided in the Right
Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent shall
be changed and at such time any of the Right Certificates shall
have been countersigned but not delivered, the Rights Agent may
adopt the countersignature under its prior name and deliver Right
Certificates so countersigned; and in case at that time any of
the Right Certificates shall not have been countersigned, the
Rights Agent may countersign such Right Certificates either in
its prior name or in its changed name; and in all such cases such
Right Certificates shall have the full force provided in the
Right Certificates and in this Agreement.
Section 20. Duties of Rights Agent.
The Rights Agent undertakes the duties and obligations
imposed by this Agreement upon the following terms and
conditions, by all of which the Corporation and the holders of
Right Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel of its
selection (who may be legal counsel for the Corporation), and the
opinion of such counsel shall be full and complete authorization
and protection to the Rights Agents 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
Corporation prior to taking or suffering any action hereunder,
such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by the Chairman of
the Board, the President, an Executive Vice President or the
Secretary of the Corporation 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 Right Certificates (except its
countersignature thereof) or be required to verify the same, but
all such statements and recitals are and shall be deemed to have
been made by the Corporation 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 validity or execution of any
Right Certificate (except its countersignature thereof); nor
shall it be responsible for any breach by the Corporation of any
covenant or condition contained in this Agreement or in any Right
Certificate; nor shall it be responsible for any change in the
exercisability of the Rights (including the Rights becoming void
pursuant to Section 11(a)(ii) hereof) or any adjustment in the
terms of the Rights (including the manner, method or amount
thereof) provided for in Sections 3, 11, 12, 23 or 24 hereof, or
the ascertaining of the existence of facts that would require to
the exercise of Rights evidenced by Right Certificates after
actual notice that such change or adjustment is required; nor
shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation
of any Equity Interest to be issued pursuant to this Agreement or
any Right Certificate or as to whether any Equity Interest will,
when issued, be validly authorized and issued, fully paid and
nonassessable.
(f) The Corporation agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and others acts,
instruments and assurances as may reasonably be required by the
Rights Agent for the carrying out or performance by the Rights
Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties
hereunder and certificates delivered pursuant to any provision
hereof from the Chairman of the Board, the President, any
Executive Vice President, or the Secretary, of the Corporation,
and is authorized to apply to such officers for advice or
instructions in connection with its duties, and it shall not be
liable for any action taken or suffered to be taken by it in good
faith in accordance with such instructions of any such officer.
An application by the Rights Agent for instructions may set forth
in writing any action proposed to be taken or omitted by the
Rights Agent with respect to its duties and obligations under
this Agreement and the date on and/or after which such actions
shall be taken, and the Rights Agent shall not be liable for any
action taken or omitted in accordance with a proposal included in
any such application on or after the date specified therein
(which date shall not be less than one (1) Business Day after the
Corporation receives such application) without the consent of the
Corporation unless prior to taking or omitting such action, the
Rights Agent has received written instructions in response to
such application specifying the actions to be taken or omitted.
(h) The Rights Agent and any shareholder, director, officer
or employee of the Rights Agent may buy, sell or deal in any of
the Rights or other Equity Interests of the Corporation or become
pecuniarily interested in any transaction in which the
Corporation may be interested, or contract with or lend money to
the Corporation 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 Corporation 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 Corporation resulting from any such
act, default, neglect or misconduct, provided reasonable care was
exercised in the selection and continued employment thereof.
(j) No provision of this Agreement shall require the Rights
Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder or in the exercise of its rights if there shall be
reasonable grounds for believing the repayment of such funds or
adequate indemnification against such risk or liability is not
reasonably assured to it.
(k) In addition to the foregoing, the Rights Agent shall be
protected and shall incur no liability for, or in respect of, any
action taken or omitted by it in connection with its
administration of this Agreement in reliance upon (i) the proper
execution of the certification concerning beneficial ownership
appended to the Form of Assignment and the Form of Election to
Purchase included as part of Exhibit B hereto (the
"Certification"), unless the Rights Agent shall have actual
knowledge that, as executed, the Certification is untrue or (ii)
the non-execution or failure to complete the Certification
including, without limitation, any refusal to honor any otherwise
permissible assignment or election by reason of such nonexecution
or failure.
(l) The Corporation agrees to give the Rights Agent prompt
written notice of any event of which the Corporation has
knowledge that would prohibit the exercise or transfer of the
Rights Certificates.
Section 21. Change of Rights Agent.
The Rights Agents or any successor Rights Agent may resign
and be discharged from its duties under this Agreement upon
thirty (30) days notice in writing mailed to the Corporation and,
at the Corporation's expense, to each transfer agent of the
Corporation's Equity Interests by registered or certified mail,
and to the holders of the Right Certificates by first class mail.
The Corporation may remove the Rights Agent or any successor
Rights Agent upon thirty (30) days notice in writing, mailed to
the Rights Agent or successor Rights Agent, as the case may be,
and to each transfer agent of the Corporation's Equity Interests
by registered or certified mail, and to the holders of the Right
Certificates by first class mail. If the Rights Agent shall
resign or be removed or shall otherwise become incapable of
acting, the Corporation shall appoint a successor to the Rights
Agent. If the Corporation shall fail to make such appointment
within a period of thirty (30) days after giving notice of such
remove or after it has been notified in writing of such
resignation or incapacity by the resigning or incapacitated
Rights Agent or by the holder of a Right Certificate (who shall,
with such notice, submit his Right Certificate for inspection by
the Corporation), then the Corporation shall become the Rights
Agent and the registered holder of any Right Certificate may
apply to any court of competent jurisdiction for the appointment
of a new Rights Agent. Any successor Rights Agent, whether
appointed by the Corporation or by such a court, shall be a
commercial bank or trust company organized and doing business
under the laws of the State of North Carolina (or of the United
States or any other state of the United States so long as such
bank or trust company is authorized to do business as a bank or
trust company in the State of North Carolina), in good standing,
having an office in the State of North Carolina which is
authorized under such laws to exercise corporate trust or stock
transfer powers in such state 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 One Hundred Million Dollars ($100,000,000).
After appointment, the successor Rights Agent shall be vested
with the same powers, rights, duties and responsibilities as if
it had been originally named as Rights Agent without further act
or deed; but the predecessor Rights Agent shall deliver and
transfer to the successor Rights Agent any property at the time
held by it hereunder, and execute and deliver any further
assurance, conveyance, act or deed necessary for the purpose.
Not later than the effective date of any such appointment the
Corporation shall file notice thereof in writing with the
predecessor Rights Agent and each transfer agent of the
Corporation's Equity Interests, and mail a notice thereof in
writing to the registered holders of the Right Certificates.
Failure to give any notice provided for in this Section 21,
however, or any defect therein, shall not affect the legality or
validity of the resignation or removal of the Rights Agent or the
appointment of the successor Rights Agent, as the case may be.
Section 22. Issuance of New Right Certificates.
Notwithstanding any of the provisions of this Agreement or
of the Rights to the contrary, the Corporation may, at its
option, issue new Right Certificates evidencing Rights in such
form as may be approved by its Board of Directors to reflect any
adjustment or change in the Purchase Price and the number or kind
or class of Equity Interests or property purchasable under the
Right Certificates made in accordance with the provisions of this
Agreement.
Section 23. Redemption.
(a) The Rights may be redeemed by action of the Board of
Directors of the Corporation pursuant to Section 23(b) or by
shareholder action pursuant to Section 23(c) and shall not be
redeemed in any other manner. The Rights Agent shall be given
written notice of any such redemption.
(b) The Board of Directors of the Corporation may, at its
option, at any time prior to such time as any Person becomes an
Acquiring Person, redeem all but not less than all the then
outstanding Rights at a redemption price of $.01 per Right,
appropriately adjusted to reflect any stock split, stock dividend
or similar transaction occurring after the date hereof (such
redemption price being hereinafter referred to as the "Redemption
Price"). Subject to the prior sentence, the redemption of the
Rights by the Board of Directors may be made effective at such
time, on such basis and with such conditions, as the Board of
Directors in its sole discretion may establish.
(c)(i) In the event the Corporation receives an Offer
from any Offeror, the Board of Directors of the Corporation may,
at its option, call a special meeting of shareholders (the
"Special Meeting") for the purpose of voting on a precatory
resolution requesting the Board of Directors to accept such
Offer, as such Offer may be amended or revised by the Offeror
from time to time to increase the price per share in cash to be
paid to holders of shares of Voting Stock (the "Resolution").
The Special Meeting shall be held on a date selected by the Board
of Directors, which date shall be not less than ninety (90) and
not more than one hundred and twenty days (120) after the later
of (A) the date such Offer is received by the Corporation (the
"Offer Date") and (B) the date of any meeting of shareholders
already scheduled as of the Offer Date; provided, however, that
if (x) such other meeting shall have been called for the purpose
of voting on a precatory resolution with respect to another Offer
(the "Other Offer") and (y) the Offer Date of the Offer shall be
not later than fifteen (15) days after the date the Other Offer
was received by the Corporation, then the Resolution with respect
to the Offer and the Other Offer shall be voted on at such
meeting and such meeting shall be deemed to be the Special
Meeting for the Offer and the Other Offer. The Board of
Directors of the Corporation shall set a date for determining the
shareholders of record entitled to notice of and to vote at the
Special Meeting in accordance with the Corporation's Articles of
Incorporation and Bylaws and with applicable law. At the
Offeror's request, the Corporation shall include in any proxy
soliciting material prepared by it in connection with the Special
Meeting proxy soliciting material submitted by the Offeror;
provided, however, that by written agreement with the Corporation
contained in or delivered with such request, the Offeror shall
indemnify the Corporation against any and all liabilities
resulting from any misstatements, misleading statements and
omissions contained in the Offeror's proxy soliciting material
and shall agree to pay the Corporation's incremental costs
incurred as a result of including such material in the
Corporation's proxy soliciting material. Notwithstanding the
foregoing, no Special Meeting shall be held from and after such
time as any Person becomes an Acquiring Person, and any Special
Meeting scheduled prior to such time and not theretofore held
shall be canceled.
(ii) If at a Special Meeting a Resolution receives the
affirmative vote of the holders of a majority of shares of Voting
Stock outstanding as of the record date of the Special Meeting,
then all the Rights shall be redeemed by such shareholder action
at the Redemption Price, effective as follows: (A) if, within
fifty-five (55) days following the date of the Special Meeting,
the Corporation and the Offeror to which such Resolution was
applicable enter into an agreement providing for such Offeror's
acquisition of all outstanding shares of Voting Stock at a price
per share in cash equal to or greater than the price contained in
such Resolution, the Rights shall be redeemed by such shareholder
action at the Redemption Price immediately prior, and as the last
condition, to the consummation of the transaction so agreed upon;
or (B) if, after the aforesaid fifty-five (55) day period and
within sixty (60) days following the date of the Special Meeting,
the Offeror commences a tender offer to purchase all of the
outstanding shares of Voting Stock held by any Person other than
the Offeror and its Affiliates at a price per share equal to or
greater than the price contained in such Resolution, the Rights
shall be redeemed by such shareholder action immediately prior,
and as the last condition, to the consummation of the purchase of
all such Voting Stock pursuant to such tender offer. In the
circumstances described in items (A) and (B) of this Section
23(c)(ii), the Offeror shall not be deemed an Acquiring Person
solely by reason of entering into the agreement described in item
(A) or commencing, or announcing the intention to commence, the
tender offer described in item (B).
(iii) Nothing contained in this Section 23(c) shall be
deemed to be in derogation of the obligation of the Board of
Directors of the Corporation to exercise its fiduciary duty.
Without limiting the foregoing, nothing contained herein shall be
construed to suggest or imply that the Board of Directors shall
not be entitled to reject any Offer, or to recommend that holders
of shares of Voting Stock reject any tender offer, or to take any
other action (including, without limitation, the commencement,
prosecution, defense or settlement of any litigation and the
submission of additional or alternative Offers or other proposals
to the Special Meeting) with respect to any Offer or any tender
offer that the Board of Directors believes is necessary or
appropriate in the exercise of such fiduciary duty.
(iv) Nothing contained in this Section 23(c) shall be
construed as limiting or prohibiting the Corporation or any
Offeror from proposing or engaging, at any time, in any
acquisition, disposition or other transfer of any Equity
Interests of the Corporation, any merger involving the
Corporation or any of its Subsidiaries, any sale or other
transfer of assets of the Corporation or any of its Subsidiaries,
any liquidation, dissolution or winding-up of the Corporation, or
any other business combination or other transaction, or any other
action by the Corporation or any Offeror; provided, however, that
the holders of Rights shall have the rights set forth in this
Agreement with respect to any such acquisition, disposition,
transfer, merger, sale, liquidation, dissolution, winding-up,
business combination, transaction or action.
(d) Immediately upon the action of the Board of Directors
of the Corporation ordering the redemption of the Rights pursuant
to Section 23(b), or upon the effectiveness of the redemption of
the Rights pursuant to Section 23(c), and without any further
action and without any notice, the right to exercise the Rights
will terminate and the only right thereafter of the holders of
Rights shall be to receive the Redemption Price. The Corporation
shall promptly give public notice of any such redemption;
provided, however, that the failure to give, or any defect in,
any such notice shall not affect the validity of such redemption.
Within ten (10) days after such action of the Board of Directors
ordering the redemption of the Rights pursuant to Section 23(b)
hereof or the effectiveness of the redemption of the Rights
pursuant to Section 23(c) hereof, as the case may be, the
Corporation shall mail a notice of redemption to all the holders
of the then outstanding Rights at their last addresses as they
appear upon the registry books of the Rights Agent or, prior to
the Distribution Date, on the registry books of the transfer
agent for the Common Shares of the Corporation. Any notice which
is mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. Each such notice
of redemption will state the method by which the payment of the
Redemption Price will be made. Neither the Corporation nor any
of its Affiliates may redeem, acquire or purchase for value any
Rights at any time in any manner other than that specifically set
forth in this Section 23 or in Section 24 hereof, and other than
in connection with the purchase of Common Shares prior to the
Distribution Date.
Section 24. Exchange.
(a) The Board of Directors of the Corporation may, at its
sole option, at any time after any Person becomes an Acquiring
Person, exchange all or part of the then outstanding and
exercisable Rights (which shall not include Rights that have
become void pursuant to the provisions of Section 11(a)(ii)
hereof) for Common Shares at an exchange ratio of one (1) 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"). The Rights Agent shall be given written
notice of any such exchange, and the Exchange Ratio pursuant to
which such exchange is effected. Notwithstanding the foregoing,
the Board of Directors shall not be empowered to effect such
exchange at any time after any Person (other than the
Corporation, any Subsidiary of the Corporation, any employee
benefit plan of the Corporation or any such Subsidiary, or any
Person holding Common Shares for or pursuant to the terms of any
such plan), together with all Affiliates of such Person, becomes
the Beneficial Owner of fifty percent (50%) or more of the Common
Shares then outstanding.
(b) Immediately upon the action of the Board of Directors
of the Corporation ordering the exchange of any Rights pursuant
to Section 24(a) and without any further action and without any
notice, the right to exercise such Rights shall terminate and the
only right thereafter of a holder of such Rights shall be to
purchase, at the Purchase Price, that number of Common Shares of
the Corporation equal to the number of such Rights held by such
holder multiplied by the Exchange Ratio. The Corporation shall
promptly give public notice of any such exchange and the Rights
Agent shall be given written notice of any such exchange;
provided, however, that the failure to give, or any defect in,
such notice shall not affect the validity of such exchange. The
Corporation shall promptly mail a notice of any such exchange to
all of the holders of such Rights at their last addresses as they
appear upon the registry books of the Rights Agent. Any notice
which is mailed in the manner herein provided shall be deemed
given, whether or not the holder receives the notice. Each such
notice of exchange will state the method by which the exchange of
the Common Shares of the Corporation for Rights will be effected
and, in the event of any partial exchange, the number of Rights
which will be exchanged. Any partial exchange shall be effected
pro rata based on the number of Rights (other than Rights which
have become void pursuant to the provisions of Section 11(a)(ii)
hereof) held by each holder of Rights.
(c) In any exchange pursuant to this Section 24, the
Corporation, at its option, may substitute interests in Preferred
Shares (or equivalent preferred shares, as such term is defined
in Section 11(b) hereof) for Common Shares exchangeable for
Rights, at the initial rate of one one-hundredth (1/100) interest
in a Preferred Share (or equivalent preferred share) for each
Common Share, as appropriately adjusted to reflect adjustments in
the voting rights of the Preferred Shares pursuant to Exhibit A
hereto so that the fraction of a Preferred Share delivered in
lieu of each Common Share shall have the same voting rights as
one (1) Common Share. The Rights Agent shall be given written
notice of any such substitution.
(d) In the event that there shall not be sufficient Common
Shares or Preferred Shares authorized but unissued to permit any
exchange of Rights as contemplated in accordance with this
Section 24, (i) the Corporation shall take all such action as may
be necessary to authorize additional Common Shares or Preferred
Shares for issuance upon exchange of the Rights or (ii) the
Corporation, at its option, notwithstanding any other provision
of this Agreement, with respect to each Right, to the extent
permitted by applicable law and any agreements or instruments in
effect on the Distribution Date to which the Corporation is a
party, upon exercise of the Rights, may pay cash in an amount
equal to the excess, if any, of the Current Market Value of a
Common Share over the Purchase Price per Right, in lieu of
issuing such Common Shares. For purposes of this Section 24(d),
the Current Market Value shall be the closing price of a Common
Share on the Trading Day immediately prior to the date of
exchange pursuant to this Section 24. To the extent that any
legal or contractual restrictions prevent the Corporation from
paying the full amount of cash payable in accordance with the
foregoing sentence, the Corporation shall pay to holders of the
Rights as to which such payments are being made all amounts which
are not then restricted on a pro rata basis. The Corporation
shall continue to make payments on a pro rata basis as funds
become available until such payments have been paid in full.
The Corporation shall provide the Rights Agent with written
notice of any election made pursuant to this Section 24(d).
(e) The Corporation shall not be required to issue
fractions of its Common Shares or to distribute certificates
which evidence fractional Common Shares. In lieu of such
fractional Common Shares, the Corporation shall pay to the
registered holders of the Right 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. For the purposes of this Section
24(e), the Current Market Value of a whole Common Share shall be
the closing price of a Common Share (as determined pursuant to
the second sentence of Section 11(d)(i)) for the Trading Day
immediately prior to the date of exchange pursuant to this
Section 24.
Section 25. Notice of Certain Events.
(a) In case the Corporation shall propose (i) to pay any
dividend payable on an Equity Interest of any class to the
holders of its Preferred Shares or to make any other distribution
to the holders of its Preferred Shares (other than a regular
quarterly cash dividend), (ii) to offer to the holders of its
Preferred Shares rights or warrants to subscribe for or to
purchase any additional Preferred Shares or other Equity
Interests, or rights or options with respect thereto, (iii) to
effect any reclassification of its Preferred Shares (other than a
reclassification involving only the subdivision of outstanding
Preferred Shares), (iv) to effect any 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 one or more of the assets or earning power
of the Corporation and its Subsidiaries (taken as a whole) to,
any other Person, (v) to effect the liquidation, dissolution or
winding up of the Corporation, or (vi) to declare or pay any
dividend on the Corporation's Common Shares payable in such
Common Shares or to effect a subdivision, combination or
consolidation of its Common Shares (by reclassification or
otherwise than by payment of dividends in such Common Shares),
then, in each such case, the Corporation shall give to each
holder of a Right Certificate and the Rights Agent, in accordance
with Section 26 hereof, a notice of such proposed action, which
shall specify the record date for the purposes of such stock
dividend, or distribution of rights or warrants, or the date on
which such reclassification, merger, sale, transfer, liquidation,
dissolution, or winding up is to take place and the date of
participation therein by the holders of the Common Shares and/or
Preferred 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 (i) or (ii) above at least ten (10) days prior to the
record date for determining holders of the Preferred Shares for
purposes of such action, and in the case of any such other
action, at least ten (10) days prior to the date of the taking of
such proposed action or the date of participation therein by the
holders of the Common Shares and/or Preferred Shares, whichever
shall be earlier.
(b) In case the event set forth in Section 11(a)(ii) hereof
shall occur, then the Corporation shall as soon as practicable
thereafter give to each holder of a Right Certificate and to the
Rights Agent, in accordance with Section 26 hereof, a notice of
the occurrence of such event, which notice shall describe the
event and the consequences of the event to holders of Rights
under Section 11(a)(ii) hereof.
Section 26. Notices.
Notices or demands authorized by this Agreement to be given
or made by the Rights Agent, or by the holder of any Right
Certificate to or on the Corporation, 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:
CCB Financial Corporation
Post Office Box 931
Durham, North Carolina 27702
Attention: W. Harold Parker, Jr., Senior Vice President
and Controller
Subject to the provisions of Section 21 hereof, any notice or
demand authorized by this Agreement to be given or made by the
Corporation or by the holder of any Right Certificate to or on
the Rights Agent shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another
address is filed in writing with the Corporation) as follows:
Central Carolina Bank and Trust Company
Post Office Box 931
Durham, North Carolina 27702
Attention: Ernest C. Roessler, Chairman of the Board of
Directors
Notices or demands authorized by this Agreement to be given or
made by the Corporation or the Rights Agent to the holder of any
Right Certificate shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed to such holder at
the address of such holder as shown on the registry books of the
Corporation.
Section 27. Supplements and Amendments.
The Corporation may from time to time supplement or amend
this Agreement without the approval of any holders of Right
Certificates in order to cure any ambiguity, to correct or
supplement any provision contained herein which may be defective
or inconsistent with any other provisions herein, to correct or
supplement any provision contained herein to comply with any
changes in applicable law, to extend the term hereof, or to make
any other provisions in regard to matters or questions arising
hereunder which the Corporation may deem necessary or desirable
and which shall be consistent with, and for the purpose of
fulfilling, the objectives of the Board of Directors in adopting
this Agreement, any such supplement or amendment to be evidenced
by a writing signed by the Corporation and the Rights Agent;
provided, however, that from and after such time as any Person
becomes an Acquiring Person, this Agreement shall not be amended
in any manner which would adversely affect the interests of the
holders of Rights; and, provided further, that the Rights Agent
shall not be required to consent to any amendment or supplement
which is adverse to its interests.
Section 28. Successors.
All of the covenants and provisions of this Agreement by or
for the benefit of the Corporation or the Rights Agent shall bind
and insure to the benefit of their respective successors and
assigns hereunder.
Section 29. Benefits of this Agreement.
Nothing in this Agreement shall be construed to give to any
Person other than the Corporation, the Rights Agent and the
registered holders of the Right Certificates (and, prior to the
Distribution Date, the registered holders of the Corporation's
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 Corporation, the Rights Agent and
the registered holders of the Right Certificates (and, prior to
the Distribution Date, the registered holders of the
Corporation's Common Shares).
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 Right Certificate issued hereunder
shall be deemed to be a contract made under the laws of the State
of North Carolina and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to
contracts to be made and performed entirely within such State.
Section 32. Counterparts.
This Agreement may be executed in any number of counterparts
and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together
constitute but one and the same instrument.
Section 33. Descriptive Headings.
Descriptive headings appear herein for convenience only and
shall not control or affect the meaning or construction of any of
the provisions hereof.
IN TESTIMONY WHEREOF, the parties hereto have caused this
Agreement to be executed in their respective corporate names by
their respective Presidents/Vice Presidents, attested by their
respective Secretaries/Assistant Secretaries and their respective
corporate seals to be hereto affixed, all within authority duly
given.
CCB FINANCIAL CORPORATION
By: /s/ ERNEST C. ROESSLER
Ernest C. Roessler, Chairman
of the Board, President and
Chief Executive Officer
ATTEST:
/s/ LEO P. PYLYPEC
Leo P. Pylypec, Secretary
CENTRAL CAROLINA BANK AND TRUST
COMPANY
By: /s/ ERNEST C. ROESSLER
Ernest C. Roessler, Chairman
of the Board, President and
Chief Executive Officer
ATTEST:
/s/ LEO P. PYLYPEC
Leo P. Pylypec, Secretary
STATE OF NORTH CAROLINA
COUNTY OF DURHAM
I, Isabella Rupp, a Notary Public in and for said County and State, do
hereby certify that on the 1st day of October, 1998, before me
personally appeared Ernest C. Roessler with whom I am personally
acquainted, who, being by me duly sworn, says that he is Chairman
of the Board, President and Chief Executive Officer of CCB
FINANCIAL CORPORATION and that Leo P. Pylypec is Secretary of CCB
FINANCIAL CORPORATION, the corporation described in and which
executed the foregoing instrument; that he knows the corporate
seal of said corporation; that the seal affixed to the foregoing
instrument is said corporate seal; that the name of the
corporation was subscribed thereto by the Chairman of the Board,
President and Chief Executive Officer; that the said Chairman of
the Board, President and Chief Executive Officer and Secretary
subscribed their names thereto and the said corporate seal was
affixed, all by authority of the Board of Directors of said
corporation; and that the said instrument is the act and deed of
said corporation.
WITNESS my hand and notarial seal, this the 1st day of
October, 1998.
/s/ ISABELLA RUPP
Notary Public
My Commission Expires: 4/14/02
STATE OF NORTH CAROLINA
COUNTY OF DURHAM
I, Isabella Rupp, a Notary Public in and for said County and State, do
hereby certify that on the 1st day of October, 1998, before me
personally appeared Ernest C. Roessler with whom I am personally
acquainted, who, being by me duly sworn, says that he is
President of CENTRAL CAROLINA BANK AND TRUST COMPANY and that Leo
P. Pylypec is Secretary of CENTRAL CAROLINA BANK AND TRUST
COMPANY, the commercial bank described in and which executed the
foregoing instrument; that he knows the corporate seal of said
bank; that the seal affixed to the foregoing instrument is said
corporate seal; that the name of the bank was subscribed thereto
by the said President; that the said President and Secretary
subscribed their names thereto and the said corporate seal was
affixed, all by authority of the Board of Directors of said bank;
and that the said instrument is the act and deed of said bank.
WITNESS my hand and notarial seal, this the
1st day of October, 1998.
/s/ ISABELLA RUPP
Notary Public
My Commission Expires: 4/14/02
Exhibit A
SUPPLEMENT TO THE AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF CCB FINANCIAL CORPORATION
4.C. Series A Junior Participating Preferred Stock:
(i) Designation and Amount. The shares of such series
shall be designated as "Series A Junior Participating Preferred
Stock," $5.00 par value per share, and the number of shares
constituting such series shall be 800,000. Such number of shares
may be increased or decreased by resolution of the Board of
Directors of this Corporation ("Board of Directors"); provided,
that no decrease shall reduce the number of shares of Series A
Junior Participating Preferred Stock to a number less than the
number of shares of the Corporation's outstanding common stock,
par value $5.00 per share ("Common Stock"), then outstanding plus
the number of shares Common Stock reserved for issuance upon the
exercise of outstanding options, rights or warrants or upon the
conversion of any outstanding securities issued by this
Corporation convertible into Series A Junior Participating
Preferred Stock.
(ii) Dividends and Distributions.
(a) Subject to the rights of the holders of any shares
of any series of preferred stock (or any similar stock)
ranking prior and superior to the Series A Junior
Participating Preferred Stock with respect to dividends, the
holders of shares of Series A Junior Participating Preferred
Stock, in preference to the holders of Common Stock and of
any other junior stock, shall be entitled to receive, when,
as and if declared by the Board of Directors out of funds
legally available for such purpose, quarterly dividends
payable in cash on the first business day of January, April,
July, and October in each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date
after the first issuance of a share or fraction of a share
of Series A Junior Participating Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the
greater of (1) $1.00 or (2) subject to the provisions for
adjustment hereinafter set forth, one hundred (100) times
the aggregate per share amount of all cash dividends, and
one hundred (100) times the aggregate per share amount
(payable in kind) of all non-cash dividends or other
distributions, other than an dividend payable in shares of
Common Stock or subdivision of the outstanding shares of
Common Stock (by reclassification or otherwise), declared on
the Common Stock since the immediately preceding Quarterly
Dividend Payment Date or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of
any share or fraction of a share of Series A Junior
Participating Preferred Stock. In the event this
Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the amount to which holders of
shares of Series A Junior Participating Preferred Stock were
entitled immediately prior to such event under clause (2) of
the preceding sentence shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to
such event.
(b) This Corporation shall declare a dividend or
distribution on the Series A Junior Participating Preferred
Stock as provided in paragraph (a) of this subsection (ii)
immediately after it declares a dividend or distribution on
the Common Stock (other than a dividend payable in shares of
Common Stock); provided that, in the event no dividend or
distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment
Date and the next subsequent Quarterly Dividend Payment
Date, a dividend of $1.00 per share on the Series A Junior
Participating Preferred Stock shall nevertheless be payable
on such subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative
on outstanding shares of Series A Junior Participating
Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares, unless the
date of issue of such shares is prior to the record date for
the first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the
record date for the determination of holders of shares of
Series A Junior Participating Preferred Stock entitled to
receive quarterly dividends and before such Quarterly
Dividends Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the
shares of Series A Junior Participating Preferred Stock in
an amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may
fix a record date for the determination of holders of shares
of Series A Junior Participating Preferred Stock entitled to
receive payment of a dividend or distribution declared
thereon, which record date shall be not more than sixty (60)
days prior to the date fixed for the payment thereof.
(iii)Voting Rights. The holders of shares of Series A Junior
Participating Preferred Stock shall have the following voting
rights:
(a) Subject to the provision for adjustment
hereinafter set forth, each share of Series A Junior
Participating Preferred Stock shall entitle the holder
thereof to one hundred (100) votes on all matters submitted
to a vote of the shareholders of this Corporation. In the
event this Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the number
of votes per share to which holders of shares of Series A
Junior Participating Preferred Stock were entitled
immediately prior to such event shall be adjusted by
multiplying such number by a fraction, the numerator of
which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding
immediately prior to such event.
(b) Except as otherwise provided herein, in any other
resolution creating a series of preferred stock or any
similar stock, in any amendment to the Amended and Restated
Articles of Incorporation of this Corporation or by law, the
holders of shares of Series A Junior Participating Preferred
Stock and any other capital stock of this Corporation having
general voting rights shall vote together as one class on
all matters submitted to a vote of shareholders of this
Corporation.
(c) Except as set forth herein, or as otherwise
provided by law, holders of Series A Junior Participating
Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent
they are entitled to vote with holders of Common Stock as
set forth herein) for taking any corporate action.
(iv) Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Junior Participating
Preferred Stock as provided in subsection (ii) are in
arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on
shares of Series A Junior Participating Preferred Stock
outstanding shall have been paid in full, this Corporation
shall not:
(1) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Junior
Participating Preferred Stock;
(2) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Junior
Participating Preferred Stock, except dividends paid
ratably on the Series A Junior Participating Preferred
Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total
amounts to which the holders of all such shares are
then entitled;
(3) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Junior
Participating Preferred Stock, provided that the
Corporation may at any time redeem, purchase or
otherwise acquire shares of any such junior stock in
exchange for shares of any class or series of stock of
this Corporation ranking junior (either as to dividends
or upon dissolution, liquidation or winding up) to the
Series A Junior Participating Preferred Stock; or
(4) redeem or purchase or otherwise acquire for
consideration any shares of Series A Junior
Participating Preferred Stock, or any shares of stock
ranking on a parity with the Series A Junior
Participating Preferred Stock, except in accordance
with a purchase offer made in writing or by publication
(as determined by the Board of Directors) to all
holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual
dividend rates and other relative rights and
preferences of the respective series and classes, shall
determine in good faith will result in fair and
equitable treatment among the respective series or
classes.
(b) This Corporation shall not permit any subsidiary
of this Corporation to purchase or otherwise acquire for
consideration any shares of capital stock of this
Corporation unless the Corporation could, under paragraph
(a) of this subsection (iv), purchase or otherwise acquire
such shares at such time and in such manner.
(v) Reacquired Shares. Any shares of Series A Junior
Participating Preferred Stock purchased or otherwise acquired by
this Corporation in any manner whatsoever shall be retired and
canceled promptly after the acquisition thereof. All such shares
upon their cancellation shall become authorized but unissued
shares of preferred stock and may be reissued as part of a new
series of preferred stock subject to the conditions and
restrictions on issuance set forth herein, in a resolution of the
Board of Directors, in the Amended and Restated Articles of
Incorporation of this Corporation, or in any other supplement or
amendment creating a series of preferred stock or any similar
stock or as otherwise required by law.
(vi) Liquidation, Dissolution of Winding Up. Upon any
liquidation, dissolution or winding up of this Corporation, no
distribution shall be made (a) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Junior Participating
Preferred Stock unless, prior thereto, the holders of shares of
Series A Junior Participating Preferred Stock shall have received
$18,750 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to
the date of such payment, provided that in no event shall the
holders of shares of Series A Junior Participating Preferred
Stock receive an amount less than an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth,
equal to one hundred (100) times the aggregate amount to be
distributed per share to holders of shares of Common Stock, or
(b) to the holders of shares of stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up)
with the Series A Junior Participating Preferred Stock, except
distributions made ratably on the Series A Junior Participating
Preferred Stock and all such parity stock in proportion to the
total amounts to which the holders of all such shares are
entitled upon such liquidation, dissolution or winding up. In
the event this Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock,
or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the aggregate amount to which holders of
shares of Series A Junior Participating Preferred Stock were
entitled immediately prior to such event under the proviso in
clause (a) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to
such event.
(vii) Merger, Etc. In the event this Corporation shall
enter into any, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or converted or
changed into other stock or securities, cash and/or any other
property, then each share of Series A Junior Participating
Preferred Stock shall at the same time be similarly exchanged or
changed into an amount per share, subject to the provision for
adjustment hereinafter set forth, equal to one hundred (100)
times the aggregate amount of stock, securities, cash and/or any
other property (payable in kind), as the case may be, into which
or for which each share of Common Stock is converted, changed or
exchanged. In the event this Corporation shall at any time
declare or pay any dividend on the Common Stock payable in shares
of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares
of Common Stock, then in each such case the amount set forth in
the preceding sentence with respect to the exchange or change of
shares of Series A Junior Participating Preferred Stock shall be
adjusted by multiplying such amount by a fraction, the numerator
of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the
number is shares of Common Stock that were outstanding
immediately prior to such event.
(viii) No Redemption. The shares of Series A Junior
Participating Preferred Stock shall not be redeemable, except as
otherwise provided herein.
(ix) Rank. The Series A Junior Participating Preferred
Stock shall rank, with respect to the payment of dividends and
the distribution of assets, junior to all series of any other
class of this Corporation's preferred stock.
(x) Amendment. The Amended and Restated Articles of
Incorporation of this Corporation shall not be amended in any
manner, nor shall the Board of Directors take any action, which
would materially alter or change the powers, preferences or
special rights of the Series A Junior Participating Preferred
Stock so as to affect them adversely without the affirmative vote
of the holders of at least two-thirds of the outstanding shares
of Series A Junior Participating Preferred Stock, voting together
as a single class.
(xi) Fractional Shares. Series A Junior Participating
Preferred Stock may be issued in fractions of a share which shall
entitle the holder, in proportion to such holder's fractional
shares, to exercise voting rights, receive dividends, participate
in distributions and to have the benefit of all other rights of
holders of Series A Junior Participating Preferred Stock.
Holders of the capital stock of this Corporation shall not
be entitled to preemptive rights with respect to any shares of
the Corporation which may be issued.
Exhibit B
Form of Right Certificate
Certificate No. R-________ Rights
NOT EXERCISABLE AFTER OCTOBER 1, 2008, OR EARLIER
IF REDEMPTION OR EXCHANGE OCCURS. THE RIGHTS ARE
SUBJECT TO REDEMPTION AT $.01 PER RIGHT AND TO
EXCHANGE ON THE TERMS SET FORTH IN THE AMENDED
AND RESTATED RIGHTS AGREEMENT. ANY RIGHTS
BENEFICIALLY OWNED BY AN ACQUIRING PERSON OR AN
AFFILIATE THEREOF OR ANY SUBSEQUENT HOLDER OF
SUCH RIGHTS MAY BECOME VOID IN THE CIRCUMSTANCES
SPECIFIED IN THE RIGHTS AGREEMENT.
Right 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 Amended
and Restated Rights Agreement, dated as of October 1, 1998
("Rights Agreement"), between CCB Financial Corporation, a North
Carolina corporation ("Corporation"), and Central Carolina Bank
and Trust Company ("Rights Agent"), to purchase from the
Corporation at any time after the Distribution Date (as such term
is defined in the Rights Agreement) and prior to 5:00 P.M., New
York City time, on October 1, 2008, at the designated office of
the Rights Agent, or at the office of its successor as Rights
Agent, one one-hundredth (1/100) interest in a fully paid non-
assessable share of Series A Junior Participating Preferred Stock
(Preferred Shares"), of the Corporation, at a purchase price of
$187.50 per one one-hundred (1/100) interest in a Preferred Share
("Purchase Price"), upon presentation and surrender of this Right
Certificate with the Form of Election to Purchase duly executed,
along with a signature guarantee and such other and further
documentation as the Rights Agent may reasonably require. The
number of Rights evidenced by this Right Certificate (and the
number of one one-hundredth (1/100) interest in Preferred Shares
which may be purchased upon exercise hereof) set forth above, and
the Purchase Price set forth above, are the number and Purchase
Price as of October 1, 1998, based on the Preferred Shares as
constituted at such date. As provided in the Rights Agreement,
the Purchase Price and the number of one one-hundredth (1/100)
interests in Preferred Shares which may be purchased upon the
exercise of the Rights evidence by this Right Certificate are
subject to modification and adjustment upon the happening of
certain events.
This Right Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms
provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Agreement
reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent and the Corporation and the holders
of the Right Certificates. Copies of the Rights Agreement are on
file at the principal executive office of the Corporation.
This Right Certificate, with or without other Right
Certificates, upon surrender at the designated office of the
Rights Agent, along with a signature guarantee and such other and
further documentation as the Rights Agent may reasonable require,
may be exchanged for another Right Certificate or Right
Certificates of like tenor and date evidencing Rights entitling
the holder to purchase a like aggregate number of interests in
Preferred Shares as the Rights evidenced by the Right Certificate
or Right Certificates surrendered shall have entitled such holder
to purchase. If this Right Certificate shall be exercised in
part, the holder shall be entitled to receive upon surrender
hereof another Right Certificate or Right Certificates for the
number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate (i) may be, and under
certain circumstances are required to be, redeemed by the
Corporation at a redemption price of $.01 per Right or (ii) may
be exchanged in whole or in part for Preferred Shares or shares
of the Corporation's Common Stock, par value $5.00 per share.
No fractional interests in Preferred Shares will be
issued upon the exercise of any Right or Rights evidenced hereby
(other than fractional interests which are integral multiples of
one one-hundredth (1/100) of a Preferred Share, which may, at the
election of the Corporation, be evidenced by depositary
receipts), but in lieu thereof a cash payment will be made, as
provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled
to vote or receive dividends or be deemed for any purpose the
holder of the Preferred Shares or of any other securities of the
Corporation which may at any time be issuable on the exercise
hereof, nor shall anything contained in the Rights Agreement or
herein be construed to confer upon the holder hereof, as such,
any of the rights of a shareholder of the Corporation 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 Right Certificate shall have been exercised as
provided in the Rights Agreement.
This Right Certificate shall not be valid or obligator for
any purpose until it shall have been countersigned by the Rights
Agent.
WITNESS the facsimile signature of the proper officers
of the Corporation and its corporate seal. Dated as of
__________________________, _______.
Attest: CCB FINANCIAL CORPORATION
By:___________________________ By:______________________
Secretary/Assistant Secretary President/Vice President
Countersigned:
CENTRAL CAROLINA BANK AND TRUST
COMPANY, as Rights Agent
By:___________________________ Dated: ______________,
___
Authorized Signatory
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires
to transfer the Right Certificate.)
FOR VALUE RECEIVED ____________________________________
hereby sells, assigns and transfers unto
__________________________________________________
_________________________________________________________________
(Please print name and address of transferee)
_________________________________________________________________
this Right Certificate, together with all right, title and
interest therein, and does hereby irrevocable constitute and
appoint __________________________________________________
Attorney, to transfer the within Right Certificate on the books
of CCB Financial Corporation with full power of substitution.
Dated:________________________, _______
______________________________
Signature
Signature of Guarantee:
Signatures must be guaranteed by a member firm of a
registered national securities exchange, a member of the National
Association of Securities Dealers, Inc., or a commercial bank or
trust company having an office or correspondent in the United
States.
- -----------------------------------------------------------------
The undersigned hereby certifies that the Rights
evidenced by this Right Certificate are not beneficially owned by
an Acquiring Person or an Affiliate or Associate hereof (as
defined in the Rights Agreement).
____________________________________
Signature
[Form of Reverse Side of Right Certificate -- Continued]
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise the Right
Certificate.)
TO: CCB FINANCIAL CORPORATION
The undersigned hereby irrevocably elects to exercise
________________________ Rights represented by this Right
Certificate to purchase the interest in Preferred Shares issuable
upon the exercise of such Rights and requests that certificates
for such interests in Preferred Shares be issued in the name of:
Please insert social security or other
taxpayer identification number:
_________________________________________________________________
(Please print name and address)
_________________________________________________________________
If such number of Rights shall not be all the Rights evidenced by
this Right Certificate, a new Right Certificate for the balance
remaining of such Rights shall be registered in the name of and
delivered to:
Please insert social security or other
taxpayer identification number:
_________________________________________________________________
(Please print name and address)
_________________________________________________________________
Dated: ________________________________, _________
______________________________
Signature
Signature of Guarantee:
Signatures must be guaranteed by a member firm of a
registered national securities exchange, a member of the National
Association of Securities Dealers, Inc., or a commercial bank or
trust company having an office or correspondent in the United
States.
[Form of Reverse Side of Right Certificate -- Continued]
The undersigned hereby certifies that the Rights
evidenced by this Right Certificate are not beneficially owned by
an Acquiring Person or an Affiliate or Associate thereof (as
defined in the Rights Agreement).
______________________________
Signature
- -----------------------------------------------------------------
NOTICE
The signature on the foregoing Forms of Assignment and
Election must conform to the name as written upon the face of
this Right Certificate in every particular, without alteration or
enlargement or any change whatsoever.
In the event the certification set forth above in the
Form of Assignment or the Form of Election to Purchase, as the
case may be, is not completed, the Corporation and the Rights
Agent will deem the beneficial owner of the Rights evidenced by
this Right Certificate to be an Acquiring Person or an Affiliate
thereof (as defined in the Rights Agreement) and such Assignment
or Election to Purchase will not be honored.
Exhibit C
SUMMARY OF RIGHTS TO PURCHASE EQUITY INTERESTS
1. In General.
On February 26, 1990, CCB Financial Corporation (the
"Corporation") declared and paid to shareholders on that date a
dividend of one preferred share purchase right ("Right") for each
outstanding share of common stock, par value $5.00 per share
(`Common Shares"), of the Corporation. Each Common Share issued
since February 26, 1990 likewise has attached thereto one Right.
Each Right entitles the registered holder to purchase
from the Corporation one one-hundredth (1/100) interest in Series
A Junior Participating Preferred Stock ("Preferred Shares") of
the Corporation, at a price of $187.50 per one one-hundredth
(1/100) interest in a Preferred Share ("Purchase Price"), subject
to adjustment. The description and terms of the Rights are set
forth in an Amended and Restated Rights Agreement ("Rights
Agreement"), effective October 1, 1998, between the Corporation
and Central Carolina Bank and Trust Company, as Rights Agent
("Rights Agent"), which extends the term and modifies certain
provisions of the initial Rights Agreement, dated February 26,
1990, between the Corporation and the Rights Agent.
2. Distribution Date.
Until the date on which certain events take place
("Distribution Date") the Rights will be evidenced by, with
respect to each Common Share outstanding as of or after October
1, 1998, the certificate for such Common Share. The term
"Distribution Date" means the earlier of (i) the tenth business
day following a public announcement that a person or group of
affiliated persons ("Acquiring Person") have acquired beneficial
ownership of 15% (or 10% in certain circumstances described in
the Rights Agreement) or more of the outstanding Common Shares or
(ii) the tenth business day (or such later date as may be
determined by the Board of Directors of the Corporation)
following the commencement of, or announcement of an intention to
commence, a tender or exchange offer the consummation of which
would result in a person or group of affiliated persons becoming
the beneficial owner of 15% (or 10% in certain circumstances
described in the Rights Agreement) or more of such outstanding
Common Shares.
3. Transfer of Rights and Certificates.
The Rights Agreement provides that, until the
Distribution Date, the Rights will be transferred with and only
with the Common Shares (i.e. each Right is "attached" to a Common
Share). Until the Distribution Date (or earlier redemption or
expiration of the Rights), Common Share certificates issued on or
after October 1, 1998 will contain a notation incorporating the
Rights Agreement by reference. Certificates for Common Shares
issued prior to October 1, 1998 and still outstanding have
attached Rights pursuant to the initial Rights Agreement. Until
the Distribution Date (or earlier redemption or expiration of the
Rights), the surrender for transfer of any certificates for
Common Shares outstanding after October 1, 1998, even without
such notation or a copy of this Summary of Rights being attached
thereto, will also constitute the transfer of the Rights
associated with the Common Shares represented by such
certificate. If and only if the Distribution Date should occur,
as soon as practicable thereafter, separate certificates
evidencing the Rights ("Right 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 Right
Certificates alone will evidence the Rights.
4. Exercise Period.
The Rights are not exercisable until the Distribution
Date. The Rights will expire on the Final Expiration Date,
unless the Final Expiration Date is extended, or the Rights are
earlier redeemed by the Corporation. The term "Final Expiration
Date" is defined in the Rights Agreement and generally means
October 1, 2008.
5. Adjustments.
(a) The Purchase Price payable, and the number of
interests in Preferred Shares or other securities properly
issuable, upon exercise of the Rights are subject to adjustment
from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification
of, the Preferred Shares, (ii) upon the grant to holders of the
Preferred Shares of certain rights or warrants to subscribe for
or purchase Preferred Shares at a price, or securities
convertible into Preferred Shares with a conversion price, less
than the then current market price of the Preferred Shares, or
(iii) upon the distribution to holders of the Preferred Shares of
evidences of indebtedness or assets (excluding regular periodic
cash dividends paid out of earnings or retained earnings or
dividends payable in Preferred Shares) or of subscription rights
or warrants (other than those referred to above).
(b) The number of outstanding Rights and the number of
one one-hundredth (1/100) interests in Preferred Shares issuable
upon exercise of each Right are also subject to adjustment in
event of a stock split of the Common Shares or a stock dividend
on the Common Shares payable in Common Shares or subdivisions,
consolidations or combinations of the Common Shares occurring, in
any such case, prior to the Distribution Date.
(c) With certain exceptions, no adjustment in the
Purchase Price will be required until cumulative adjustments
require an adjustment of at least 1% in such Purchase Price. No
fractional Preferred Shares will be issued (other than fractions
which are integral multiples of one one-hundredth (1/100) of a
Preferred Share, which may, at the election of the Corporation,
be evidenced by depositary receipts) and in lieu thereof, an
adjustment in cash will be made based on the market price of the
Preferred Shares on the last trading day prior to the date of
exercise.
6. Preferred Shares.
(a) Preferred Shares purchasable upon exercise of the
Rights will not be redeemable. Each Preferred Share will be
entitled to a minimum preferential quarterly dividend payment
equal to the greater of (i) $1.00 per share or (iii) an aggregate
dividend of one hundred (100) times the dividend declared per
Common Share. In the event of liquidation, the holders of the
interests in Preferred Shares will be entitled to a minimum
preferential liquidation payment of $18,750 per share but in no
event less than an amount equal to an aggregate payment of one
hundred (100) times the payment made per Common Share. Each
Preferred Share will have one hundred (100) votes, voting
together with the Common Shares. Finally, in the event of any
merger or other transaction in which Common Shares are exchanged
or converted, each Preferred Share will be entitle to receive one
hundred (100) times the amount received per Common Share. These
rights are protected by customary antidilution provisions.
(b) Because of the nature of the Preferred Shares'
dividend, liquidation and voting rights, the value of the one one-
hundredth (1/100) interest in a Preferred Share purchasable upon
exercise of each Right should approximate the value of one Common
Share.
7. Exercise of Rights for Common Stock.
In the event that the Corporation is acquired in a
merger or other business combination transaction or 50% or more
of its consolidated assets or earning power is sold, proper
provision will be made so that each holder of a Right will
thereafter have the right to receive, upon the exercise thereof
and at the then current purchase price of the Right, that number
of shares of common stock of the acquiring company which at the
time of such transaction will have a market value of two times
the purchase price of the Right. In the event that any person
becomes an Acquiring Person, proper provision shall be made so
that each holder of a Right, other than Rights beneficially owned
by the Acquiring Person (which will thereafter be void), will
thereafter have the right to receive upon exercise that number of
Common Shares having a market value of two times the purchase
price of the Right.
8. Optional Exchange of Rights.
At any time after a person becomes an Acquiring Person
and prior to the acquisition by such Acquiring Person of 50% or
more of the outstanding Common Shares, the Board of Directors of
the Corporation may exchange the Rights (other than Rights owned
by such Acquiring Person which have become void), in whole or in
part, at an exchange ratio of one Common Share, or one one-
hundredth (1/100) of a Preferred Share (or of a share of a class
or series of the Corporation's preferred stock having equivalent
rights, preferences and privileges), per Right (subject to
adjustment).
9. Redemption of Rights.
(a) At any time prior to a person becoming an
Acquiring Person, the Board of Directors of the Corporation may
redeem the Rights in whole, but not in part, at a price of $.01
per Right ("Redemption Price").
(b) In addition, if a potential acquiror of the
Corporation who does not beneficially own more than 1% of the
Common Shares (and who has not within the past year owned in
excess of 1% of the Common Shares and, at a time when he held a
greater than 1% stake, disclosed, or caused the disclosure of, an
intention that relates to or would result in the acquisition or
influence of control of the Corporation) proposes to acquire all
of the Common Shares (and all other shares of capital stock of
the Corporation entitled to vote generally in the election of
directors or entitled to vote with the Common Shares on mergers,
share exchanges, sales of all or substantially all of the
Corporation's assets, liquidations, dissolutions or windings up)
for cash at a price which a nationally recognized investment
banker selected by such potential acquiror states in writing is
fair to the Corporation's shareholders from a financial point of
view, and such acquiror has obtained written financing
commitments (or otherwise has financing) and complies with
certain procedural requirements, then the Corporation, at its
option and upon the request of the potential acquiror, will hold
a special meeting of shareholders to vote on a resolution
requesting the Board of Directors to accept the acquiror's
proposal. If a majority of the outstanding shares entitled to
vote on the proposal vote in favor of such resolution, then the
Rights will automatically be redeemed at the Redemption Price,
subject to certain required actions by the acquiror, immediately
prior to the consummation of the acquiror's tender offer for all
of such shares at a price per share in cash equal to or greater
than the price offered by such acquiror in the acquiror's
proposal; provided, however, that no redemption will be permitted
or required after a person becomes an Acquiring Person.
Immediately upon any redemption of the Rights, the right to
exercise the Rights will terminate and the only right of the
holders of Rights will be to receive the Redemption Price.
10. Rights Prior to Exercise.
Until a Right is exercised, the holder thereof, as
such, will have no rights as a shareholder of the Corporation,
including, without limitation, the right to vote or to receive
dividends.
11. Documents and Effects of this Summary.
A copy of the Rights Agreement has been filed with the
Securities and Exchange Commission as an Exhibit to a Report on
Form 8-K dated October 1, 1998. A copy of the Rights Agreement
is available free of charge from the Corporation. This summary
description of the Rights and the Rights Agreement 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.
