SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
________________
AMCORE FINANCIAL, INC.
(Exact name of registrant as specified in its charter)
Nevada 36-3183870
(State of incorporation (I.R.S. employer
or organization) identification no.)
501 Seventh Street
Rockford, Illinois
(Address of principal executive offices)
61104
(zip code)
________________
Securities to be registered pursuant to Section 12(b) of the Act:
None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock Purchase Rights
(Title of class)
Item 1. Description of Registrant's Securities to be
Registered.
On February 21, 1996, the Board of Directors of
AMCORE Financial, Inc. (the "Company") declared a dividend
of one Common Stock Purchase Right (a "Right") for each
outstanding share of common stock, $.33 par value, of the
Company (the "Common Stock"). The dividend was payable to
the holders of record of the Common Stock at the close of
business on February 27, 1996 (the "Record Date"). Except
as described below, each Right, when exercisable, entitles
the registered holder to purchase from the Company one share
of Common Stock at a Purchase Price of $70.00 per share,
subject to adjustment. The description and terms of the
Rights are set forth in the Rights Agreement (the "Rights
Agreement") dated as of February 21, 1996, between the
Company and Firstar Trust Company, as Rights Agent.
Initially, the Rights will be attached to all
Common Stock certificates representing shares then
outstanding, and no separate certificates representing the
Rights ("Rights Certificates") will be distributed. The
Rights will separate from the Common Stock and a
Distribution Date will occur upon the earlier of (i) 10 days
following a public announcement that a person or group of
affiliated or associated persons (an "Acquiring Person") has
acquired, or obtained the right to acquire, beneficial
ownership of 15% or more of the outstanding Common Stock
(the date of such announcement being the "Stock Acquisition
Date"), (ii) 10 business days (or such later date as the
Board shall determine) following the commencement of a
tender offer or exchange offer that would result in a person
or group beneficially owning 15% or more of such outstanding
Common Stock or (iii) 10 business days after the Board of
Directors of the Company shall declare any Person to be an
"Adverse Person." In order to declare a Person to be an
Adverse Person the Board of Directors must determine that
such person, alone or together with its affiliates and
associates, has become the Beneficial Owner of an amount of
Common Stock which the Board of Directors determines to be
substantial (which amount shall in no event be less than 10%
of the Common Stock then outstanding) and, after reasonable
inquiry and investigation, including consultation with such
persons as such directors shall deem appropriate, that (a)
such beneficial ownership by such person is intended to
cause the Company to repurchase the Common Stock
beneficially owned by such person or to cause pressure on
the Company to take action or enter into a transaction or
series of transactions intended to provide such person with
short-term financial gains under circumstances where the
Board of Directors determines that the best long-term
interests of the Company would not be served by taking such
action or entering into such transaction or series of
transactions at that time or (b) such beneficial ownership
is causing or reasonably likely to cause a material adverse
impact (including, but not limited to, impairment of
relationships with customers or impairment of the Company's
ability to maintain its competitive position) on the
business or prospects of the Company, on the Company's
employees, customers or suppliers or on the communities in
which the Company operates or is located; provided, however,
that the Board of Directors shall not declare any person who
is the beneficial owner of 10% or more of the shares of
Common Stock then outstanding to be an Adverse Person if
such person has reported or is required to report such
ownership on Schedule 13G under the Securities Exchange Act
of 1934 as amended (the "Exchange Act") (or any comparable
or successor report) or on Schedule 13D under the Exchange
Act (or any comparable or successor report) which Schedule
13D does not state any intention to or reserve the right to
control or influence the management or policies of the
Company or engage in any of the actions specified in Item 4
of such Schedule (other than the disposition of the Common
Stock) so long as such person neither reports nor is
required to report such ownership other than as described in
this proviso (the earliest of such dates being called the
"Distribution Date").
Until the Distribution Date, (i) the Rights will
be evidenced by the Common Stock certificates and will be
transferred with and only with such Common Stock
certificates, (ii) Common Stock certificates issued after
the Record Date will contain a notation incorporating the
Rights Agreement by reference and (iii) the surrender for
transfer of any certificates for shares of Common Stock
outstanding will also constitute the transfer of the Rights
associated with the Common Stock represented by such
certificates.
The Rights are not exercisable until the
Distribution Date and will expire at the close of business
on February 27, 2006, unless earlier redeemed by the Company
as described below.
As soon as practicable after the Distribution
Date, Rights Certificates will be mailed to holders of
record of the Common Stock as of the close of business on
the Distribution Date and, thereafter, the separate Rights
Certificates alone will represent the Rights. All shares of
Common Stock issued prior to the Distribution Date will be
issued with Rights. Shares of Common Stock issued after the
Distribution Date will be issued with Rights if such shares
are issued pursuant to the exercise of stock options or
under an employee benefit plan, or upon the conversion of
securities issued after adoption of the Rights Agreement.
Except as otherwise determined by the Board of Directors, no
other shares of Common Stock issued after the Distribution
Date will be issued with Rights.
In the event that (i) a Person becomes the
beneficial owner of more than 15% of the then outstanding
Common Stock (except pursuant to an offer for all
outstanding shares of Common Stock which the independent
directors determine to be fair to and otherwise in the best
interests of the Company and its shareholders) or (ii) the
Board of Directors declares a person to be an Adverse
Person, following the Distribution Date, each holder of a
Right will thereafter have the right to receive, upon
exercise, Common Stock (or, in certain circumstances, cash,
property or other securities of the Company) having a value
equal to two times the Exercise Price of the Right. The
Exercise Price is the Purchase Price multiplied by the
number of shares of Common Stock issuable upon exercise of a
Right prior to any of the events described in this paragraph
(initially, one). Notwithstanding any of the foregoing,
following the occurrence of any of the events set forth
in this paragraph, all Rights that are, or (under certain
circumstances specified in the Rights Agreement) were,
beneficially owned by any Acquiring Person or Adverse Person
will be null and void. However, Rights are not exercisable
following the occurrence of any of the events set forth
above until such time as the Rights are no longer redeemable
by the Company as set forth below.
For example, at an exercise price of $70.00 per
Right, each Right not owned by an Acquiring Person or
Adverse Person (or by certain related parties) following an
event set forth in the preceding paragraph would entitle its
holder to purchase $140.00 worth of Common Stock for $70.00.
Assuming that the Common Stock had a per share value of $30
at such time, the holder of each valid Right would be
entitled to purchase 4.67 shares of Common Stock for $70.00.
In the event that, at any time following the Stock
Acquisition Date, (i) the Company is acquired in a share
exchange, merger or other business combination transaction,
(other than a merger which follows an offer described in the
second preceding paragraph), or (ii) 50% or more of the
Company's assets or earning power is sold or transferred,
each holder of a Right (except Rights which previously have
been voided as set forth above) shall thereafter have the
right to receive, upon exercise, common stock of the
acquiring company having a value equal to two times the
exercise price of the Right. The events set forth in this
paragraph and in the second preceding paragraph are referred
to as the "Triggering Events."
The Purchase Price payable, and the number of
shares of Common Stock or other securities or property
issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the
event of a stock dividend on, or a subdivision, combination
or reclassification of, the Common Stock, (ii) if holders of
the Common Stock are granted certain rights or warrants to
subscribe for shares of Common Stock or convertible
securities at less than the current market price of the
Common Stock, or (iii) upon the distribution to holders of
the Common Stock of evidences of indebtedness or assets
(excluding regular quarterly cash dividends) or of
subscription rights or warrants (other than those referred
to above).
With certain exceptions, no adjustment in the
Purchase Price will be required until cumulative adjustments
amount to at least 1% of the Purchase Price. No fractional
shares of Common Stock will be issued and, in lieu thereof,
an adjustment in cash will be made based on the market price
of the Common Stock on the last trading date prior to the
date of exercise.
At any time prior to the earlier of (i) ten days
following the Stock Acquisition Date, and (ii) the
Expiration Date, the Company may redeem the Rights in whole,
but not in part, at a price of $.01 per Right, subject to
adjustment. Notwithstanding the foregoing, the Board of
Directors of the Company may not redeem the Rights following
a determination that any person is an Adverse Person. The
Company may, at its option, pay the redemption price in
cash, shares of Common Stock (based on the current market
price of the Common Stock at the time of redemption) or any
other form of consideration deemed appropriate by the Board
of Directors of the Company. Immediately upon the action of
the Company's Board of Directors electing to redeem the
Rights, the right to exercise the Rights will terminate and
the only right of the holders of Rights thereafter will be
to receive the applicable redemption price.
The Board of Directors of the Company, at its
option, at any time and from time to time after the first
occurrence of a Triggering Event, may exchange all or part
of the then outstanding and exercisable Rights (excluding
any Rights that have become void pursuant to the provisions
of the Rights Agreement) for shares of Common Stock at an
exchange ratio of one share of Common Stock per Right,
appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after February 21,
1996. Notwithstanding the foregoing, the Board of Directors
of the Company may not effect such exchange at any time
after any person (other than the Company, any subsidiary of
the Company or any employee benefit plan of the Company or
such subsidiary), together with all affiliates and
associates of such person, becomes the beneficial owner of
50% or more of the Common Stock then outstanding.
Immediately upon the action of the Board of Directors of the
Company ordering the exchange of any Rights pursuant to the
Rights Agreement and without any further action and without
any notice, the right to exercise such Rights shall
terminate and the only right thereafter of a holder of such
Rights shall be to receive that number of shares of Common
Stock equal to the number of such Rights held by such holder
multiplied by the exchange ratio.
Until a Right is exercised, the holder thereof, as
such, will have no rights as a shareholder of the Company,
including, without limitation, the right to vote or to
receive dividends. While the distribution of the Rights
will not be taxable to stockholders or to the Registrant,
stockholders may, depending upon the circumstances,
recognize taxable income in the event that the Rights become
exercisable for Common Stock (or other consideration) of the
Registrant or for common stock of the acquiring company as
set forth above.
The provisions of the Rights Agreement may be
amended by the Board of Directors of the Company prior to
the Distribution Date without the approval of the holders of
the Rights. After the Distribution Date, the provisions of
the Rights Agreement may be amended by the Board in order to
cure any ambiguity, defect or inconsistency, to make changes
which do not adversely affect the interests of holders of
Rights (excluding the interests of any Acquiring Person or
Adverse Person), or to shorten or lengthen any time period
under the Rights Agreement; provided, however, that no
amendment to adjust the time period governing redemption
shall be made at such time as the Rights are not redeemable.
As of February 21, 1996, there were 14,189,388
shares of Common Stock outstanding. Each share of
outstanding Common Stock on February 27, 1996 will, after
the dividend of the Rights, have one Right attached thereto.
Until the Distribution Date, the Company will issue one
Right with each shareofCommon Stock thats shall become
outstanding so that all such shares will have attached
Rights.
The Rights have certain anti-takeover effects.
The Rights will cause substantial dilution to a person or
group that attempts to acquire the Company without
conditioning the offer on a substantial number of Rights
being acquired. Accordingly, the existence of the Rights
may deter certain acquirors from making takeover proposals
or tender offers. However, the Rights are not intended to
prevent a takeover, but rather are designed to enhance the
ability of the Board of Directors to negotiate with an
acquiror on behalf of all of the shareholders. In addition,
the Rights should not interfere with a proxy contest.
The Rights Agreement between the Company and the
Rights Agent specifying the terms of the Rights, which
includes as Exhibit A the Form of Rights Certificate, is
attached hereto as an exhibit and incorporated herein by
reference. The foregoing description of the Rights does not
purport to be complete and is qualified in its entirety by
reference to such exhibit.
Item 2. Exhibits.
1. Rights Agreement, dated as of February 21,
1996, between AMCORE Financial, Inc. and Firstar Trust
Company, as Rights Agent, which includes as Exhibit A
thereto the Form of Rights Certificate.
SIGNATURE
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, the registrant has duly
caused this registration statement to be signed on its
behalf by the undersigned, thereto duly authorized.
AMCORE FINANCIAL, INC.
By: /s/ F. Taylor Carlin
Name: F. Taylor Carlin
Title: Executive Vice President and
Chief Operating Officer
Date: February 27, 1996
EXHIBIT INDEX
Exhibit Description Page
1 Rights Agreement, dated as of 10
February21, 1996, between AMCORE
Financial, Inc., and Firstar Trust
Company, as Rights Agent, which
includes as Exhibit A thereto the Form
of Rights Certificate.
EXHIBIT 1
AMCORE FINANCIAL, INC.
and
FIRSTAR TRUST COMPANY
Rights Agent
Rights Agreement
Dated as of February 21, 1996
Table of Contents
Section Page
Section 1. Certain Definitions . . . . . . . . . . 1
Section 2. Appointment of Rights Agent . . . . . . 5
Section 3. Issue of Rights Certificates . . . . . 6
Section 4. Form of Rights Certificates . . . . . . 8
Section 5. Countersignature and Registration . . . 10
Section 6. Transfer, Split Up, Combination and
Exchange of Rights Certificates;
Mutilated, Destroyed, Lost or
Stolen Rights Certificates . . . . . 10
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights . . . . . 12
Section 8. Cancellation and Destruction of
Rights Certificates . . . . . . . . 15
Section 9. Reservation and Availability of
Common Stock . . . . . . . . . . . . 15
Section 10. Common Stock Record Date . . . . . . . 17
Section 11. Adjustment of Purchase Price, Number
and Kind of Shares or Number of
Rights . . . . . . . . . . . . . . . 18
Section 12. Certificate of Adjusted Purchase Price
or Number of Shares . . . . . . . . 31
Section 13. Share Exchange, Consolidation, Merger
or Sale or Transfer of Assets or
Earning Power . . . . . . . . . . . 31
Section 14. Fractional Rights and Fractional
Shares . . . . . . . . . . . . . . . 35
Section 15. Rights of Action . . . . . . . . . . . 36
Section 16. Agreement of Rights Holders . . . . . . 37
Section 17. Rights Certificate Holder Not Deemed
a Shareholder . . . . . . . . . . . 38
Section 18. Concerning the Rights Agent . . . . . . 38
Section 19. Merger or Consolidation or Change of
Name of Rights Agent . . . . . . . . 39
Section 20. Duties of Rights Agent . . . . . . . . 40
Section 21. Change of Rights Agent . . . . . . . . 42
Section 22. Issuance of New Rights Certificates . . 44
Section 23. Redemption and Termination . . . . . . 44
Section 24. Exchange . . . . . . . . . . . . . . . 45
Section 25. Notice of Certain Events . . . . . . . 47
Section 26. Notices . . . . . . . . . . . . . . . . 48
Section 27. Supplements and Amendments . . . . . . 49
Section 28. Successors . . . . . . . . . . . . . . 50
Section 29. Determinations and Actions by the
Board of Directors, etc. . . . . . . 50
Section 30. Benefits of This Agreement . . . . . . 51
Section 31. Severability . . . . . . . . . . . . . 51
Section 32. Governing Law . . . . . . . . . . . . . 51
Section 33. Counterparts . . . . . . . . . . . . . 52
Section 34. Descriptive Headings . . . . . . . . . 52
Exhibit A -- Form of Rights Certificate
RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of February 21, 1996
(the "Agreement"), between AMCORE FINANCIAL, INC., a
Nevada corporation (the "Company"), and FIRSTAR TRUST
COMPANY, a Wisconsin banking institution (the "Rights
Agent").
W I T N E S S E T H
WHEREAS, on February 21, 1996 (the "Rights
Dividend Declaration Date"), the Board of Directors of
the Company authorized and declared a dividend
distribution of one Right for each share of common stock,
par value $.33 per share, of the Company (the "Common
Stock") outstanding at the close of business on February
27, 1996 (the "Record Date"), and has authorized the
issuance of one Right (as such number may be hereinafter
adjusted pursuant to Section 11(i) hereof) for each share
of Common Stock of the Company issued between the Record
Date (whether originally issued or delivered from the
Company's treasury) and the Distribution Date and, in
certain circumstances, provided in Section 22 hereof,
after the Distribution Date, each Right initially
representing the right to purchase one share of Common
Stock upon the terms and subject to the conditions
hereinafter set forth (the "Rights").
NOW, THEREFORE, in consideration of the
premises and the mutual agreements herein set forth, the
parties hereby agree as follows:
Section 1. Certain Definitions. For purposes
of this Agreement, the following terms have the meanings
indicated:
(a) "Acquiring Person" shall mean any
Person who or which, together with all Affiliates and
Associates of such Person, shall be the Beneficial Owner
of 15% or more of the shares of Common Stock then
outstanding, but shall not include (i) the Company, (ii)
any Subsidiary of the Company, (iii) or any employee
benefit plan of the Company or of any Subsidiary of the
Company, (iv) any Person organized, appointed or
established by the Company for or pursuant to the terms
of any such plan or (v) any Person who has reported or is
required to report such ownership (but less than 25%) on
Schedule 13G under the Securities Exchange Act of 1934,
as amended (the "Exchange Act") (or any comparable or
successor report) or on Schedule 13D under the Exchange
Act (or any comparable or successor report) which
Schedule 13D does not state any intention to or reserve
the right to control or influence the management or
policies of the Company or engage in any of the actions
specified in Item 4 of such Schedule (other than the
disposition of the Common Stock) and, within 10 Business
Days of being requested by the Company to advise it
regarding the same, certifies to the Company that such
Person acquired shares of Common Stock representing in
excess of 14.9% of the outstanding Common Stock
inadvertently or without knowledge of the terms of the
Rights and who, together with all Affiliates and
Associates, thereafter does not acquire additional shares
of Common Stock while the Beneficial Owner of 15% or more
of the shares of Common Stock then outstanding; provided,
however, that if the Person requested to so certify fails
to do so within 10 Business Days, then such person shall
become an Acquiring Person immediately after such 10
Business Day Period.
(b) "Adverse Person" shall mean any
Person declared to be an Adverse Person by the Board of
Directors upon determination that the criteria set forth
in Section 11(a)(ii)(B) apply to such Person; provided,
however, that the Board of Directors shall not declare
any Person who is the Beneficial Owner of 10% or more of
the outstanding Common Stock of the Company to be an
Adverse Person if such Person has reported or is required
to report such ownership on Schedule 13G under the
Exchange Act (or any comparable or successor report) or
on Schedule 13D under the Exchange Act (or any comparable
or successor report) which Schedule 13D does not state
any intention to or reserve the right to control or
influence the management or policies of the Company or
engage in any of the actions specified in Item 4 of such
Schedule (other than the disposition of the Common Stock)
so long as such Person neither reports nor is required to
report such ownership other than as described in this
clause (b).
(c) "Affiliate" and "Associate" shall
have the respective meanings ascribed to such terms in
Rule 12b-2 of the General Rules and Regulations under the
Exchange Act.
(d) A Person shall be deemed the
"Beneficial Owner" of, and shall be deemed to
"beneficially own," any securities:
(i) which such Person or any of
such Person's Affiliates or Associates,
directly or indirectly, has the right to
acquire (whether such right is exercisable
immediately or only after the passage of time)
pursuant to any agreement, arrangement or
understanding (whether or not in writing) or
upon the exercise of conversion rights,
exchange rights, other rights, warrants or
options, or otherwise; provided, however, that
a Person shall not be deemed the "Beneficial
Owner" of, or to "beneficially own," (A)
securities tendered pursuant to a tender or
exchange offer made by such Person or any of
such Person's Affiliates or Associates until
such tendered securities are accepted for
purchase or exchange, or (B) securities
issuable upon exercise of Rights at any time
prior to the occurrence of a Triggering Event,
or (C) securities issuable upon exercise of
Rights from and after the occurrence of a
Triggering Event which Rights were acquired by
such Person or any of such Person's Affiliates
or Associates prior to the Distribution Date or
pursuant to Section 3(a) hereof or Section 22
hereof (the "Original Rights") or pursuant to
Section 11(i) hereof in connection with an
adjustment made with respect to any Original
Rights;
(ii) which such Person or any of
such Person's Affiliates or Associates,
directly or indirectly, has the right to vote
or dispose of or has "beneficial ownership" of
(as determined pursuant to Rule 13d-3 of the
General Rules and Regulations under the
Exchange Act), including pursuant to any
agreement, arrangement or understanding,
whether or not in writing; provided, however,
that a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially
own," any security under this subparagraph (ii)
as a result of an agreement, arrangement or
understanding to vote such security if such
agreement, arrangement or understanding: (A)
arises solely from a revocable proxy given in
response to a public proxy or consent
solicitation made pursuant to, and in
accordance with, the applicable provisions of
the General Rules and Regulations under the
Exchange Act, and (B) is not also then
reportable by such Person on Schedule 13D under
the Exchange Act (or any comparable or
successor report); or
(iii) which are beneficially
owned, directly or indirectly, by any other
Person (or any Affiliate or Associate thereof)
with which such Person (or any of such Person's
Affiliates or Associates) has any agreement,
arrangement or understanding (whether or not in
writing), for the purpose of acquiring,
holding, voting (except pursuant to a revocable
proxy as described in the proviso to
subparagraph (ii) of this paragraph (d)) or
disposing of any voting securities of the
Company;
provided, however, that nothing in this paragraph (d)
shall cause a person engaged in business as an
underwriter of securities to be the "Beneficial Owner"
of, or to "beneficially own," any securities acquired
through such person's participation in good faith in a
firm commitment underwriting until the expiration of 40
days after the date of such acquisition.
(e) "Business Day" shall mean any day
other than a Saturday, Sunday or a day on which banking
institutions in the State of Illinois or the State of
Wisconsin are authorized or obligated by law or executive
order to close.
(f) "Close of business" on any given date
shall mean 5:00 P.M., Rockford, Illinois, time, on such
date; provided, however, that if such date is not a
Business Day it shall mean 5:00 P.M., Rockford, Illinois,
time, on the next succeeding Business Day.
(g) "Common Stock" shall mean the common
stock, par value $.33 per share, of the Company, except
that "Common Stock" when used with reference to any
Person other than the Company shall mean the capital
stock of such Person with the greatest voting power, or
the equity securities or other equity interest having
power to control or direct the management, of such
Person.
(h) "Current Market Price" shall have the
meaning ascribed to such term in Section 11(d) hereof.
(i) "Person" shall mean any individual,
firm, corporation, partnership or other entity.
(j) "Section 11 Event" shall mean any
event described in Section 11(a)(ii)(A)or (B).
(k) "Section 13 Event" shall mean any
event described in clause (x), (y) or (z) of Section
13(a) hereof.
(l) "Stock Acquisition Date" shall mean
the first date of public announcement (which, for
purposes of this definition, shall include, without
limitation, a report filed pursuant to Section 13(d)
under the Exchange Act) by the Company or an Acquiring
Person that an Acquiring Person has become such.
(m) "Subsidiary" shall mean, with
reference to any Person, any corporation of which an
amount of voting securities sufficient to elect at least
a majority of the directors of such corporation is
beneficially owned, directly or indirectly, by such
Person, or otherwise controlled by such Person.
(n) "Triggering Event" shall mean any
Section 11 Event or any Section 13 Event.
Section 2. Appointment of Rights Agent. The
Company hereby appoints the Rights Agent to act as agent
for the Company and the holders of the Rights (who, in
accordance with Section 3 hereof, shall prior to the
Distribution Date also be the holders of the Common
Stock) in accordance with the terms and conditions
hereof, and the Rights Agent hereby accepts such
appointment. The Company may from time to time appoint
such Co-Rights Agents as it may deem necessary or
desirable.
Section 3. Issue of Rights Certificates.
(a) Until the earlier of (i) the close of
business on the tenth day after the Stock Acquisition
Date (or, if the tenth day after the Stock Acquisition
Date occurs before the Record Date, the close of business
on the Record Date), (ii) the close of business on the
tenth Business Day (or such later date as the Board of
Directors shall determine) after the date that a tender
or exchange offer by any Person (other than the Company,
any Subsidiary of the Company, any employee benefit plan
of the Company or of any Subsidiary of the Company or any
Person organized, appointed or established by the Company
for or pursuant to the terms of any such plan) is first
published or sent or given within the meaning of Rule
14d-2(a) of the General Rules and Regulations under the
Exchange Act, if upon consummation thereof, such Person
would be the Beneficial Owner of 15% or more of the
shares of Common Stock then outstanding or (iii) the
close of business on the tenth Business Day after the
Board of Directors determines, pursuant to the criteria
set forth in Section 11(a)(ii)(B) hereof, that a Person
is an Adverse Person (the earliest of (i), (ii) and (iii)
being herein referred to as the "Distribution Date"), (x)
the Rights will be evidenced (subject to the provisions
of paragraph (b) of this Section 3) by the certificates
for the Common Stock registered in the names of the
holders of the Common Stock (which certificates for
Common Stock shall be deemed also to be certificates for
Rights) and not by separate certificates, and (y) the
Rights will be transferable only in connection with the
transfer of the underlying shares of Common Stock
(including a transfer to the Company). As soon as
practicable after the Distribution Date, the Rights Agent
will send by first-class, postage prepaid mail, to each
record holder of the Common Stock as of the close of
business on the Distribution Date, at the address of such
holder shown on the records of the Company, one or more
rights certificates, in substantially the form of Exhibit
A hereto (the "Rights Certificates"), evidencing one
Right for each share of Common Stock so held, subject to
adjustment as provided herein. In the event that an
adjustment in the number of Rights per share of Common
Stock has been made pursuant to Section 11(p) hereof, at
the time of distribution of the Rights Certificates, the
Company shall make the necessary and appropriate rounding
adjustments (in accordance with Section 14(a) hereof) so
that Rights Certificates representing only whole numbers
of Rights are distributed and cash is paid in lieu of any
fractional Rights. As of and after the Distribution
Date, the Rights will be evidenced solely by such Rights
Certificates.
(b) With respect to certificates for the
Common Stock outstanding as of the Record Date, until the
Distribution Date, the Rights will be evidenced by such
certificates for the Common Stock and the registered
holders of the Common Stock shall also be the registered
holders of the associated Rights. Until the earlier of
the Distribution Date or the Expiration Date (as such
term is defined in Section 7 hereof), the transfer of any
certificates representing shares of Common Stock in
respect of which Rights have been issued shall also
constitute the transfer of the Rights associated with
such shares of Common Stock.
(c) Rights shall be issued in respect of
all shares of Common Stock which are issued (whether
originally issued or delivered from the Company's
treasury) after the Record Date but prior to the earlier
of the Distribution Date or the Expiration Date or, in
certain circumstances provided in Section 22 hereof,
after the Distribution Date. Certificates representing
such shares of Common Stock shall also be deemed to be
certificates for Rights, and shall bear the following
legend or such similar legend as the Company may deem
appropriate and as is not inconsistent with the
provisions of this Agreement, or as may be required to
comply with any applicable law, 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:
This certificate also evidences and
entitles the holder hereof to certain Rights as
set forth in the Rights Agreement
between AMCORE Financial, Inc. and Firstar
Trust Company, dated as of February 21, 1996,
as from time to time amended (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 AMCORE Financial, Inc. 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. AMCORE
Financial, Inc. will mail to the holder of this
certificate a copy of the Rights Agreement
without charge promptly upon receipt of a
written request therefor. Under certain
circumstances set forth in the Rights
Agreement, Rights issued to or held by any
Person who is, was or becomes an Acquiring
Person or an Adverse Person or any Affiliate or
Associate thereof (as such terms are defined in
the Rights Agreement), whether then held by or
on behalf of such Person or by any subsequent
holder, may become null and void.
With respect to such certificates containing the
foregoing legend, until the earlier of (i) the
Distribution Date or (ii) the Expiration Date, the Rights
associated with the Common Stock represented by such
certificates shall be evidenced by such certificates
alone and registered holders of Common Stock shall also
be the registered holders of the associated Rights, and
the transfer of any of such certificates shall also
constitute the transfer of the Rights associated with the
Common Stock represented by such certificates.
Section 4. Form of Rights Certificates.
(a) The Rights Certificates (and the
forms of election to purchase and of assignment to be
printed on the reverse thereof) shall each be
substantially in the form set forth in Exhibit A hereto
and may have such marks of identification or designation
and such legends, summaries or endorsements printed
thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Agreement,
or as may be required to comply with any applicable law
or with any rule or regulation made pursuant thereto or
with any rule or regulation of any stock exchange on
which the Rights may from time to time be listed, or to
conform to usage. Subject to the provisions of Section
11 and Section 22 hereof, the Rights Certificates,
whenever distributed, shall be dated as of the Record
Date and on their face shall entitle the holders thereof
to purchase such number of shares of Common Stock as
shall be set forth therein at the price per share set
forth therein (the "Purchase Price"), but the number of
shares purchasable upon the exercise of each Right and
the Purchase Price thereof shall be subject to adjustment
as provided herein.
(b) Any Rights Certificate issued
pursuant to Section 3(a) or Section 22 hereof that
represents Rights beneficially owned by (i) an Acquiring
Person, an Adverse Person or any Associate or Affiliate
of an Acquiring Person or Adverse Person, (ii) a
transferee of an Acquiring Person or Adverse Person (or
of any such Associate or Affiliate) who becomes a
transferee after the Acquiring Person or Adverse Person
becomes such, or (iii) a transferee of an Acquiring
Person or Adverse Person (or of any such Associate or
Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person or Adverse Person
becoming such and receives such Rights pursuant to either
(A) a transfer (whether or not for consideration) from
the Acquiring Person or Adverse Person to holders of
equity interests in such Acquiring Person or Adverse
Person or to any Person with whom such Acquiring Person
or Adverse Person has any continuing agreement,
arrangement or understanding regarding the transferred
Rights or (B) a transfer which the Board of Directors of
the Company has determined is part of a plan, arrangement
or understanding which has as a primary purpose or effect
the avoidance of Section 7(e) hereof, and any Rights
Certificate issued pursuant to Section 6 or Section 11
hereof upon transfer, exchange, replacement or adjustment
of any other Rights Certificate referred to in this
sentence, shall contain (to the extent feasible) the
following legend:
The Rights represented by this Rights
Certificate are or were beneficially owned by a
Person who was or became an Acquiring Person,
Adverse Person or an Affiliate or Associate of
an Acquiring Person or Adverse Person (as such
terms are defined in the Rights Agreement).
Accordingly, this Rights Certificate and the
Rights represented hereby may become null and
void in the circumstances specified in Section
7(e) of the Rights Agreement.
The absence of the foregoing legend on any
Rights Certificate shall in no way affect any of the
other provisions of the Agreement, including, without
limitation, the provisions of Section 7(e) hereof.
Section 5. Countersignature and Registration.
(a) The Rights Certificates shall be
executed on behalf of the Company by its Chairman of the
Board, its Chief Executive Officer, its President or any
Vice President, either manually or by facsimile
signature, and shall have affixed thereto the Company's
seal or a facsimile thereof which shall be attested by
the Secretary or an Assistant Secretary of the Company,
either manually or by facsimile signature. The Rights
Certificates shall be countersigned by the Rights Agent,
either manually or by facsimile signature, and shall not
be valid for any purpose unless so countersigned. In
case any officer of the Company who shall have signed any
of the Rights Certificates shall cease to be such officer
of the Company before countersignature by the Rights
Agent and issuance and delivery by the Company, such
Rights Certificates, nevertheless, may be countersigned
by the Rights Agent and issued and delivered by the
Company with the same force and effect as though the
person who signed such Rights Certificates had not ceased
to be such officer of the Company; and any Rights
Certificate may be signed on behalf of the Company by any
person who, at the actual date of the execution of such
Rights Certificate, shall be a proper officer of the
Company to sign such Rights Certificate, although at the
date of the execution of this Rights Agreement any such
person was not such an officer.
(b) Following the Distribution Date, the
Rights Agent will keep or cause to be kept, at its
principal office or offices designated as the appropriate
place for surrender of Rights Certificates upon exercise
or transfer, books for registration and transfer of the
Rights Certificates issued hereunder. Such books shall
show the names and addresses of the respective holders of
the Rights Certificates, the number of Rights evidenced
on its face by each of the Rights Certificates and the
date of each of the Rights Certificates.
Section 6. Transfer, Split Up, Combination and
Exchange of Rights Certificates; Mutilated, Destroyed,
Lost or Stolen Rights Certificates.
(a) Subject to the provisions of Section
4(b), Section 7(e) and Section 14 hereof, at any time
after the close of business on the Distribution Date, and
at or prior to the close of business on the Expiration
Date, any Rights Certificate or Certificates (other than
Rights Certificates representing Rights that have been
exchanged pursuant to Section 24 hereof) may be
transferred, split up, combined or exchanged for another
Rights Certificate or Certificates, entitling the
registered holder to purchase a like number of shares of
Common Stock (or, following a Triggering Event, Common
Stock, other securities, cash or other assets, as the
case may be) as the Rights Certificate or Certificates
surrendered then entitled such holder (or former holder
in the case of a transfer) to purchase. Any registered
holder desiring to transfer, split up, combine or
exchange any Rights Certificate or Certificates shall
make such request in writing delivered to the Rights
Agent, and shall surrender the Rights Certificate or
Certificates to be transferred, split up, combined or
exchanged, at the principal office or offices of the
Rights Agent designated for such purpose. Neither the
Rights Agent nor the Company shall be obligated to take
any action whatsoever with respect to the transfer of any
such surrendered Rights Certificate or Certificates until
the registered holder shall have completed and signed the
certificate contained in the form of assignment set forth
on the reverse side of such Rights Certificate and shall
have provided such additional evidence of the identity of
the Beneficial Owner (or former Beneficial Owner) or
Affiliates or Associates thereof as the Company shall
reasonably request. Thereupon the Rights Agent shall,
subject to Section 4(b), Section 7(e), Section 14 and
Section 24 hereof, countersign and deliver to the Person
entitled thereto a Rights Certificate or Certificates, as
the case may be, as so requested. The Company may
require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection
with any transfer, split up, combination or exchange of
Rights Certificates.
(b) Upon receipt by the Company and the
Rights Agent of evidence reasonably satisfactory to them
of the loss, theft, destruction or mutilation of a Rights
Certificate, and, in case of loss, theft or destruction,
of indemnity or security reasonably satisfactory to them,
and, at the Company's request, reimbursement to the
Company and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights
Agent and cancellation of the Rights Certificate if
mutilated, the Company will execute and deliver a new
Rights Certificate of like tenor to the Rights Agent for
countersignature and delivery to the registered owner in
lieu of the Rights Certificate so lost, stolen, destroyed
or mutilated.
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights.
(a) Subject to Section 7(e) hereof, the
registered holder of any Rights Certificate may exercise
the Rights evidenced thereby (except as otherwise
provided herein including, without limitation, the
restrictions on exercisability set forth in Section 9(c),
Section 11(a)(iii) and Section 23(a) hereof) in whole or
in part at any time after the Distribution Date upon
surrender of the Rights Certificate, with the form of
election to purchase and the certificate on the reverse
side thereof duly executed, to the Rights Agent at the
principal office of the Rights Agent designated for such
purpose, together with payment of the aggregate Purchase
Price with respect to the total number of shares of
Common Stock (or other securities, cash or other assets,
as the case may be) as to which such surrendered Rights
are then exercisable, at or prior to the earlier of (i)
the close of business on February 27, 2006 (the "Final
Expiration Date"), (ii) the time at which the Rights are
redeemed as provided in Section 23 hereof or (iii) the
time at which such Rights are exchanged pursuant to
Section 24 hereof (the earlier of (i), (ii) and (iii)
being herein referred to as the "Expiration Date").
(b) The Purchase Price for each share of
Common Stock pursuant to the exercise of a Right shall
initially be $70.00, and shall be subject to adjustment
from time to time as provided in Sections 11 and 13(a)
hereof and shall be payable in accordance with paragraph
(c) below.
(c) Upon receipt of a Rights Certificate
representing exercisable Rights, with the form of
election to purchase and the certificate on the reverse
side thereof duly executed, accompanied by payment, with
respect to each Right so exercised, of the Purchase Price
per share of Common Stock (or other securities, cash or
other assets, as the case may be) to be purchased as set
forth below and an amount equal to any applicable
transfer tax, the Rights Agent shall, subject to Section
20(k) hereof, thereupon promptly (i) (A) requisition from
any transfer agent of the shares of Common Stock (or make
available, if the Rights Agent is the transfer agent for
the Common Stock) certificates for the total number of
shares of Common Stock to be purchased, and the Company
hereby irrevocably authorizes its transfer agent to
comply with all such requests, or (B) if the Company
shall have elected to deposit the total number of shares
of Common Stock issuable upon exercise of the Rights
hereunder with a depositary agent, requisition from the
depositary agent depositary receipts representing such
number of shares of Common Stock as are to be purchased
(in which case certificates for the shares of Common
Stock represented by such receipts shall be deposited by
the transfer agent with the depositary agent) and the
Company will direct the depositary agent to comply with
such request, (ii) requisition from the Company the
amount of cash, if any, to be paid in lieu of fractional
shares of Common Stock in accordance with Section 14
hereof, (iii) after receipt of such certificates or
depositary receipts, cause the same to be delivered to or
upon the order of the registered holder of such Rights
Certificate, registered in such name or names as may be
designated by such holder, and (iv) after receipt
thereof, deliver such cash, if any, to or upon the order
of the registered holder of such Rights Certificate. The
payment of the Purchase Price (as such amount may be
reduced pursuant to Section 11(a)(iii) hereof) shall be
made in cash or by certified bank check or bank draft
payable to the order of the Company. In the event that
the Company is obligated to issue other securities of the
Company, pay cash and/or distribute other property
pursuant to Section 11(a) hereof, the Company will make
all arrangements necessary so that such other securities,
cash and/or other property are available for distribution
by the Rights Agent, if and when appropriate.
(d) In case the registered holder of any
Rights Certificate shall exercise less than all the
Rights evidenced thereby, a new Rights Certificate
evidencing the Rights remaining unexercised shall be
issued by the Rights Agent and delivered to, or upon the
order of, the registered holder of such Rights
Certificate, registered in such name or names as may be
designated by such holder, subject to the provisions of
Section 14 hereof.
(e) Notwithstanding anything in this
Agreement to the contrary, from and after the first
occurrence of a Section 11 Event, any Rights beneficially
owned by (i) an Acquiring Person, an Adverse Person or an
Associate or Affiliate of an Acquiring Person or Adverse
Person, (ii) a transferee of an Acquiring Person or
Adverse Person (or of any such Associate or Affiliate)
who becomes a transferee after the Acquiring Person or
Adverse Person becomes such, or (iii) a transferee of an
Acquiring Person or Adverse Person (or of any such
Associate or Affiliate) who becomes a transferee prior to
or concurrently with the Acquiring Person or Adverse
Person becoming such and receives such Rights pursuant to
either (A) a transfer (whether or not for consideration)
from the Acquiring Person or Adverse Person to holders of
equity interests in such Acquiring Person or Adverse
Person or to any Person with whom the Acquiring Person or
Adverse Person has any continuing agreement, arrangement
or understanding regarding the transferred Rights or (B)
a transfer which the Board of Directors of the Company
has determined is part of a plan, arrangement or
understanding which has as a primary purpose or effect
the avoidance of this Section 7(e), shall become null and
void without any further action, and no holder of such
Rights shall have any rights whatsoever with respect to
such Rights, whether under any provision of this
Agreement or otherwise. The Company shall use all
reasonable efforts to insure that the provisions of this
Section 7(e) and Section 4(b) hereof are complied with,
but shall have no liability to any holder of Rights
Certificates or other Person as a result of its failure
to make any determinations with respect to an Acquiring
Person or Adverse Person or any of their respective
Affiliates, Associates or transferees hereunder.
(f) Notwithstanding anything in this
Agreement to the contrary, neither the Rights Agent nor
the Company shall be obligated to undertake any action
with respect to a registered holder upon the occurrence
of any purported exercise as set forth in this Section 7
unless such registered holder shall have (i) completed
and signed the certificate contained in the form of
election to purchase set forth on the reverse side of the
Rights Certificate surrendered for such exercise, and
(ii) provided such additional evidence of the identity of
the Beneficial Owner (or former Beneficial Owner) or
Affiliates or Associates thereof as the Company shall
reasonably request.
Section 8. Cancellation and Destruction of
Rights Certificates. All Rights Certificates surrendered
for the purpose of exercise, transfer, split up,
combination or exchange shall, if surrendered to the
Company or any of its agents, be delivered to the Rights
Agent for cancellation or in cancelled form, or, if
surrendered to the Rights Agent, shall be cancelled by
it, and no Rights Certificates shall be issued in lieu
thereof except as expressly permitted by any of the
provisions of this Agreement. The Company shall deliver
to the Rights Agent for cancellation and retirement, and
the Rights Agent shall so cancel and retire, any other
Rights Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights
Agent shall deliver all cancelled Rights Certificates to
the Company, or shall, at the written request of the
Company, destroy such cancelled Rights Certificates, and
in such case shall deliver a certificate of destruction
thereof to the Company.
Section 9. Reservation and Availability of
Common Stock.
(a) The Company covenants and agrees that
it will cause to be reserved and kept available out of
its authorized and unissued shares of Common Stock (and,
following the occurrence of a Triggering Event, out of
its authorized and unissued shares of Common Stock and/or
other securities) or out of any authorized and issued
shares held in its treasury, the number of shares of
Common Stock (and, following the occurrence of a
Triggering Event, shares of Common Stock and/or other
securities) that, as provided in this Agreement including
Section 11(a)(iii) hereof, will be sufficient to permit
the exercise in full of all outstanding Rights.
(b) So long as the shares of Common Stock
(and, following the occurrence of a Triggering Event,
shares of Common Stock and/or other securities) issuable
and deliverable upon the exercise of the Rights may be
listed on any national securities exchange, the Company
shall use its best efforts to cause, from and after such
time as the Rights become exercisable (but only to the
extent that it is reasonably likely that the Rights will
be exercised), all shares reserved for such issuance to
be listed on such exchange upon official notice of
issuance upon such exercise.
(c) The Company shall use its best
efforts to (i) file, as soon as practicable following the
earliest date after the first occurrence of a Section 11
Event on which the consideration to be delivered by the
Company upon exercise of the Rights has been determined
pursuant to this agreement (including in accordance with
Section 11(a)(iii) hereof), or as soon as is required by
law following the Distribution Date, as the case may be,
a registration statement under the Securities Act of
1933, as amended (the "Securities Act"), with respect to
the Common Stock or other securities purchasable upon
exercise of the Rights on an appropriate form, (ii) cause
such registration statement to become effective as soon
as practicable after such filing, and (iii) cause such
registration statement to remain effective (with a
prospectus at all times meeting the requirements of the
Securities Act) until the earlier of (A) the date as of
which the Rights are no longer exercisable for such
shares of Common Stock or other securities, and (B) the
Expiration Date. The Company will also take such action
as may be appropriate under, or to ensure compliance
with, the securities or "blue sky" laws of the various
states in connection with the exercisability of the
Rights. The Company may temporarily suspend, for a
period of time not to exceed ninety (90) days after the
date set forth in clause (i) of the first sentence of
this Section 9(c), the exercisability of the Rights in
order to prepare and file such registration statement and
permit it to become effective. Upon any such suspension,
the Company shall issue a public announcement stating
that the exercisability of the Rights has been
temporarily suspended, as well as a public announcement
at such time as the suspension is no longer in effect.
In addition, if the Company shall determine that a
registration statement is required following the
Distribution Date, the Company may temporarily suspend
the exercisability of the Rights until such time as a
registration statement has been declared effective.
Notwithstanding any provision of this Agreement to the
contrary, the Rights shall not be exercisable in any
jurisdiction if the requisite qualification in such
jurisdiction shall not have been obtained or the exercise
thereof shall not be permitted under applicable law or a
registration statement shall not have been declared
effective.
(d) The Company covenants and agrees that
it will take all such action as may be necessary to
ensure that all shares of Common Stock (and, following
the occurrence of a Triggering Event, shares of Common
Stock and/or other securities) delivered upon exercise of
Rights shall, at the time of delivery of the certificates
for such shares (subject to payment of the Purchase
Price), be duly and validly authorized and issued and
fully paid and nonassessable.
(e) The Company further covenants and
agrees that it will pay when due and payable any and all
federal and state transfer taxes and charges which may be
payable in respect of the issuance or delivery of the
Rights Certificates and of any certificates for shares of
Common Stock (or Common Stock and/or other securities, as
the case may be) upon the exercise of Rights. The
Company shall not, however, be required to pay any
transfer tax which may be payable in respect of any
transfer or delivery of Rights Certificates to a Person
other than, or the issuance or delivery of shares of
Common Stock (or Common Stock and/or other securities, as
the case may be) in respect of a name other than that of,
the registered holder of the Rights Certificates
evidencing Rights surrendered for exercise or to issue or
deliver any certificates for shares of Common Stock (or
Common Stock and/or other securities, as the case may be)
in a name other than that of the registered holder upon
the exercise of any Rights until such tax shall have been
paid (any such tax being payable by the holder of such
Rights Certificates at the time of surrender) or until it
has been established to the Company's satisfaction that
no such tax is due.
Section 10. Common Stock Record Date. Each
person in whose name any certificate for shares of Common
Stock (or other securities, as the case may be) is issued
upon the exercise of Rights shall for all purposes be
deemed to have become the holder of record of the shares
of Common Stock (or other securities, as the case may be)
represented thereby on, and such certificate shall be
dated, the date upon which the Rights Certificate
evidencing such Rights was duly surrendered and payment
of the Purchase Price (and all applicable transfer taxes)
was made; provided, however, that if the date of such
surrender and payment is a date upon which the Common
Stock (or Common Stock and/or other securities, as the
case may be) transfer books of the Company are closed,
such Person shall be deemed to have become the record
holder of such shares on, and such certificate shall be
dated, the next succeeding Business Day on which the
Common Stock (or Common Stock and/or other securities, as
the case may be) transfer books of the Company are open.
Prior to the exercise of the Rights evidenced thereby,
the holder of a Rights Certificate shall not be entitled
to any rights of a shareholder of the Company with
respect to shares for which the Rights shall be
exercisable, including, without limitation, the right to
vote, to receive dividends or other distributions or to
exercise any preemptive rights, and shall not be entitled
to receive any notice of any proceedings of the Company,
except as provided herein.
Section 11. Adjustment of Purchase Price,
Number and Kind of Shares or Number of Rights. The
Purchase Price, the number and kind of shares covered by
each Right and the number of Rights outstanding are
subject to adjustment from time to time as provided in
this Section 11.
(a)(i) In the event the Company
shall at any time after the date of this
Agreement (A) declare a dividend on the Common
Stock payable in shares of Common Stock, (B)
subdivide the outstanding Common Stock, (C)
combine the outstanding Common Stock into a
smaller number of shares, or (D) issue any
shares of its capital stock in a
reclassification of the Common Stock (including
any such reclassification in connection with a
consolidation or merger in which the Company is
the continuing or surviving corporation),
except as otherwise provided in this Section
11(a) and Section 7(e) hereof, the Purchase
Price in effect at the time of the record date
for such dividend or of the effective date of
such subdivision, combination or
reclassification, and the number and kind of
shares of Common Stock or capital stock, as the
case may be, issuable on such date, shall be
proportionately adjusted so that the holder of
any Right exercised after such time shall be
entitled to receive, upon payment of the
Purchase Price then in effect, the aggregate
number and kind of shares of Common Stock or
capital stock, as the case may be, which, if
such Right had been exercised immediately prior
to such date and at a time when the Common
Stock transfer books of the Company were open,
he would have owned upon such exercise and been
entitled to receive by virtue of such dividend,
subdivision, combination or reclassification;
provided, however, that if the record date for
any such dividend, subdivision, combination or
reclassification shall occur prior to the
Distribution Date, the Company shall make an
appropriate adjustment to the Purchase Price
(taking into account any additional Rights
which may be issued as a result of such
dividend, subdivision, combination or
reclassification), in lieu of adjusting (as
described above) the number of shares of Common
Stock (or other capital stock, as the case may
be) issuable upon exercise of the Rights and
Section 11(i) hereof shall not be applicable.
If an event occurs which would require an
adjustment under both this Section 11(a)(i) and
Section 11(a)(ii) hereof, the adjustment
provided for in this Section 11(a)(i) shall be
in addition to, and shall be made prior to any
adjustment required pursuant to Section
11(a)(ii) hereof.
(ii) In the event:
(A) any Person (other than
the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or of any
Subsidiary of the Company, or any Person or
entity organized, appointed or established by
the Company for or pursuant to the terms of any
such plan), alone or together with its
Affiliates and Associates, shall, at any time
after the Rights Dividend Declaration Date,
become the Beneficial Owner of 15% or more of
the shares of Common Stock then outstanding,
unless the event causing the 15% threshold to
be crossed is a transaction set forth in
Section 13(a) hereof, or is an acquisition of
shares of Common Stock pursuant to a tender
offer or exchange offer for all outstanding
shares of Common Stock at a price and on terms
determined by at least a majority of the
members of the Board of Directors who are not
officers of the Company and who are not
representatives, nominees, Affiliates or
Associates of an Acquiring Person, after
receiving advice from one or more investment
banking firms, to be (a) at a price which is
fair to shareholders (taking into account all
factors which such members of the Board deem
relevant, including, without limitation, prices
which could reasonably be achieved if the
Company or its assets were sold on an orderly
basis designed to realize maximum value) and
(b) otherwise in the best interests of the
Company and its shareholders, or
(B) the Board of Directors
of the Company shall declare any Person to be
an Adverse Person, upon a determination that
such Person, alone or together with its
Affiliates and Associates, has, at any time
after this Agreement has been filed with the
Securities and Exchange Commission as an
exhibit to a filing under the Exchange Act,
become the Beneficial Owner of a number of
shares of Common Stock which the Board of
Directors of the Company determines to be
substantial (which number of shares shall in no
event represent less than 10% of the
outstanding shares of Common Stock) and a
determination by the Board of Directors of the
Company, after reasonable inquiry and
investigation, including consultation with such
persons as such directors shall deem
appropriate and consideration of such factors
as are permitted by applicable law, that (a)
such Beneficial Ownership by such Person is
intended to cause the Company to repurchase the
shares of Common Stock beneficially owned by
such Person or to cause pressure on the Company
to take action or enter into a transaction or
series of transactions intended to provide such
Person with short-term financial gain under
circumstances where the Board of Directors
determines that the best long-term interests of
the Company would not be served by taking such
action or entering into such transaction or
series of transactions at that time or (b) such
Beneficial Ownership is causing or reasonably
likely to cause a material adverse impact
(including, but not limited to, impairment of
relationships with customers or impairment of
the Company's ability to maintain its
competitive position) on the business or
prospects of the Company, on the Company's
employees, customers or suppliers or on the
communities in which the Company operates or is
located,
then, promptly following the occurrence of any event
described in Section 11(a)(ii)(A) or (B) hereof, proper
provision shall be made so that each holder of a Right
(except as provided below and in Section 7(e) hereof)
shall thereafter have the right to receive, upon exercise
thereof at the then current Purchase Price in accordance
with the terms of this Agreement, such number of shares
of common Stock of the Company as shall equal the result
obtained by (x) multiplying the then current Purchase
Price by the then number of shares of Common Stock for
which a Right was exercisable immediately prior to the
first occurrence of a Section 11 Event, and (y) dividing
that product (such product, following such first
occurrence, shall be referred to as the "Purchase Price"
with respect to each Right for all purposes of this
Agreement) by 50% of the Current Market Price per share
of Common Stock on the date of such first occurrence
(such number of shares is herein called the "Adjustment
Shares"); provided that the Purchase Price and the number
of Adjustment Shares shall be further adjusted as
provided in this Agreement to reflect any event occurring
after the date of such first occurrence.
(iii) In the event that the
number of shares of Common Stock which is
authorized by the Company's certificate of
incorporation but not outstanding or reserved
for issuance for purposes other than upon
exercise of the Rights is not sufficient to
permit the exercise in full of the Rights in
accordance with Section 11(a)(ii), the Company
shall: (A) determine the excess of (1) the
value of the Adjustment Shares issuable upon
the exercise of a Right (the "Current Value")
over (2) the Purchase Price (such excess is
herein called the "Spread"), and (B) with
respect to each Right, make adequate provision
to substitute for the Adjustment Shares, upon
exercise of the Rights, (1) cash, (2) a
reduction in the Purchase Price, (3) Common
Stock or other equity securities of the Company
(including, without limitation, shares, or
units of shares, of preferred stock which the
Board of Directors of the Company has deemed to
have the same value as shares of Common Stock
(such shares or units of shares of preferred
stock are referred to herein as "common stock
equivalents")), (4) debt securities of the
Company, (5) other assets, or (6) any
combination of the foregoing, having an
aggregate value equal to the Current Value,
where such aggregate value has been determined
by the Board of Directors of the Company based
upon the advice of a nationally recognized
investment banking firm selected by the Board
of Directors of the Company; provided, however,
if the Company shall not have made adequate
provision to deliver value pursuant to clause
(B) above within thirty (30) days following the
later of (x) the first occurrence of a Section
11 Event and (y) the date on which the
Company's right of redemption pursuant to
Section 23(a) expires (the later of (x) and (y)
being referred to herein as the "Section
11(a)(ii) Trigger Date"), then the Company
shall be obligated to deliver, upon the
surrender for exercise of a Right and without
requiring payment of the Purchase Price, shares
of Common Stock (to the extent available) and
then, if necessary, cash, which shares and/or
cash have an aggregate value equal to the
Spread. If the Board of Directors of the
Company shall determine in good faith that it
is likely that sufficient additional shares of
Common Stock could be authorized for issuance
upon exercise in full of the Rights, the thirty
(30) day period set forth above may be extended
to the extent necessary, but not more than
ninety (90) days after the Section 11(a)(ii)
Trigger Date, in order that the Company may
seek shareholder approval for the authorization
of such additional shares (such period, as it
may be extended, the "Substitution Period").
To the extent that the Company determines that
some action should be taken pursuant to the
first and/or second sentences of this Section
11(a)(iii), the Company (x) shall provide,
subject to Section 7(e) hereof, that such
action shall apply uniformly to all outstanding
Rights, and (y) may suspend the exercisability
of the Rights until the expiration of the
Substitution Period in order to seek any
authorization of additional securities and/or
to decide the appropriate form of distribution
to be made pursuant to such first sentence and
to determine the value thereof. In the event
of any such suspension, the Company shall issue
a public announcement stating that the
exercisability of the Rights has been
temporarily suspended, as well as a public
announcement at such time as the suspension is
no longer in effect. For purposes of this
Section 11(a)(iii), the value of the Common
Stock shall be the Current Market Price per
share of the Common Stock on the Section
11(a)(ii) Trigger Date and the value of any
"common stock equivalent" shall be deemed to
have the same value as the Common Stock on such
date.
(b) In case the Company shall fix a
record date for the issuance of rights (other than the
Rights), options or warrants to holders of Common Stock
entitling them to subscribe for or purchase (for a period
expiring within forty-five (45) calendar days after such
record date) Common Stock (or shares having the same
rights, privileges and preferences as the Common Stock
("equivalent common stock")) or securities convertible
into Common Stock or equivalent common stock at a price
per share of Common Stock or per share of equivalent
common stock (or having a conversion price per share, if
a security convertible into Common Stock or equivalent
common stock) less than the Current Market Price per
share of Common Stock on such record date, the Purchase
Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the
numerator of which shall be the number of shares of
Common Stock outstanding on such record date, plus the
number of shares of Common Stock which the aggregate
offering price of the total number of shares of Common
Stock and/or equivalent common stock so to be offered
(and/or the aggregate initial conversion price of the
convertible securities so to be offered) would purchase
at such Current Market Price, and the denominator of
which shall be the number of shares of Common Stock
outstanding on such record date, plus the number of
additional shares of Common Stock and/or equivalent
common stock to be offered for subscription or purchase
(or into which the convertible securities so to be
offered are initially convertible). In case such
subscription price may be paid by delivery of
consideration part or all of which may be in a form other
than cash, the value of such consideration shall be as
determined in good faith by the Board of Directors of the
Company, whose determination shall be described in a
statement filed with the Rights Agent and shall be
binding on the Rights Agent and the holders of the
Rights. Shares of Common Stock owned by or held for the
account of the Company shall not be deemed outstanding
for the purpose of any such computation. Such adjustment
shall be made successively whenever such a record date is
fixed, and in the event that such rights or warrants are
not so issued, the Purchase Price shall be adjusted to be
the Purchase Price which would then be in effect if such
record date had not been fixed.
(c) In case the Company shall fix a
record date for a distribution to all holders of Common
Stock (including any such distribution made in connection
with a consolidation or merger in which the Company is
the continuing corporation) of evidences of indebtedness,
cash (other than a regular quarterly cash dividend out of
the earnings or retained earnings of the Company), assets
(other than a dividend payable in Common Stock, but
including any dividend payable in stock other than Common
Stock) or subscription rights or warrants (excluding
those referred to in Section 11(b) hereof), the Purchase
Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the
numerator of which shall be the Current Market Price per
share of Common Stock on such record date, less the fair
market value (as determined in good faith by the Board of
Directors of the Company, whose determination shall be
described in a statement filed with the Rights Agent and
shall be binding on the Rights Agent and the holders of
the Rights) of the portion of the cash, assets or
evidences of indebtedness so to be distributed or of such
subscription rights or warrants applicable to a share of
Common Stock and the denominator of which shall be such
Current Market Price per share of Common Stock. Such
adjustments shall be made successively whenever such a
record date is fixed, and in the event that such
distribution is not so made, the Purchase Price shall be
adjusted to be the Purchase Price which would have been
in effect if such record date had not been fixed.
(d) For the purpose of any computation
hereunder, other than computations made pursuant to
Section 11(a)(iii) hereof, the "Current Market Price" per
share of Common Stock on any date shall be deemed to be
the average of the daily closing prices per share of such
Common Stock for the thirty (30) consecutive Trading Days
(as such term is hereinafter defined) immediately prior
to such date, and for purposes of computations made
pursuant to Section 11(a)(iii) hereof, the "Current
Market Price" per share of the Common Stock on any date
shall be deemed to be the average of the daily closing
prices per share of such Common Stock for the ten (10)
consecutive Trading Days immediately following such date;
provided, however, that in the event that the Current
Market Price per share of the Common Stock is determined
during a period following the announcement by the issuer
of the Common Stock of (i) any dividend or distribution
on such Common Stock, payable in shares of such Common
Stock or securities convertible into shares of such
Common Stock (other than the Rights), or (ii) any
subdivision, combination or reclassification of such
Common Stock, and the ex-dividend date for such dividend
or distribution, or the record date for such subdivision,
combination or reclassification shall not have occurred
prior to the expiration of the requisite thirty (30)
Trading Day period or ten (10) Trading Day period, as set
forth above, then, and in each such case, the "Current
Market Price" shall be properly adjusted to take into
account ex-dividend trading. The closing price for each
day shall be the last sale price, regular way, or, in
case no such sale takes place on such day, the average of
the closing bid and asked prices, regular way, in either
case as reported in the principal consolidated
transaction reporting system with respect to securities
listed or admitted to trading on the New York Stock
Exchange or, if the shares of Common Stock are not listed
or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction
reporting system with respect to securities listed on the
principal national securities exchange on which the
shares of Common Stock are listed or admitted to trading
or, if the shares of Common Stock are not listed or
admitted to trading on any national securities exchange,
the last quoted price or, if not so quoted, the average
of the high bid and low asked prices in the over-the-
counter market, as reported on the Nasdaq Stock Market
or, if on any such date the shares of Common Stock are
not quoted on the Nasdaq Stock Market, the average of the
closing bid and asked prices as furnished by a
professional market maker making a market in the Common
Stock selected by the Board of Directors of the Company.
If on any such date no market maker is making a market in
the Common Stock, the fair value of such shares on such
date as determined in good faith by the Board of
Directors of the Company shall be used. The term
"Trading Day" shall mean a day on which the principal
national securities exchange on which the shares of
Common Stock are listed or admitted to trading is open
for the transaction of business or, if the shares of
Common Stock are not listed or admitted to trading on any
national securities exchange, a Business Day. If the
Common Stock is not publicly held or not so listed or
traded, "Current Market Price" per share shall mean the
fair value per share as determined in good faith by the
Board of Directors of the Company, whose determination
shall be described in a statement filed with the Rights
Agent and shall be conclusive for all purposes.
(e) Anything herein to the contrary
notwithstanding, no adjustment in the Purchase Price
shall be required unless such adjustment would require an
increase or decrease of at least one percent (1%) in the
Purchase Price; provided, however, that any adjustments
which by reason of this Section 11(e) are not required to
be made shall be carried forward and taken into account
in any subsequent adjustment. All calculations under
this Section 11 shall be made to the nearest cent or to
the nearest ten-thousandth of a share of Common Stock, as
the case may be. Notwithstanding the first sentence of
this Section 11(e), any adjustment required by this
Section 11 shall be made no later than the earlier of (i)
three (3) years from the date of the transaction which
mandates such adjustment, or (ii) the Expiration Date.
(f) If as a result of an adjustment made
pursuant to Section 11(a)(ii) or Section 13(a) hereof,
the holder of any Right thereafter exercised shall become
entitled to receive any shares of capital stock other
than Common Stock, thereafter the number of such other
shares so receivable upon exercise of any Right and the
Purchase Price thereof shall be subject to adjustment
from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect
to the shares of Common Stock contained in Sections
11(a), (b), (c), (e), (g), (h), (i), (j), (k) and (m),
and the provisions of Sections 7, 9, 10, 13 and 14 hereof
with respect to the Common Stock shall apply on like
terms to any such other shares.
(g) All Rights originally issued by the
Company subsequent to any adjustment made to the Purchase
Price hereunder shall evidence the right to purchase, at
the adjusted Purchase Price, the number of shares of
Common Stock purchasable from time to time hereunder upon
exercise of the Rights, all subject to further adjustment
as provided herein.
(h) Unless the Company shall have
exercised its election as provided in Section 11(i), upon
each adjustment of the Purchase Price as a result of the
calculations made in Sections 11(b) and (c), each Right
outstanding immediately prior to the making of such
adjustment shall thereafter evidence the right to
purchase, at the adjusted Purchase Price, that number of
shares of Common Stock (calculated to the nearest ten-
thousandth) obtained by (i) multiplying (x) the number of
shares covered by a Right immediately prior to this
adjustment, by (y) the Purchase Price in effect
immediately prior to such adjustment of the Purchase
Price, and (ii) dividing the product so obtained by the
Purchase Price in effect immediately after such
adjustment of the Purchase Price.
(i) The Company may elect on or after the
date of any adjustment of the Purchase Price to adjust
the number of Rights, in lieu of any adjustment in the
number of shares of Common Stock purchasable upon the
exercise of a Right. Each of the Rights outstanding
after the adjustment in the number of Rights shall be
exercisable for the number of shares of Common Stock for
which a Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such
adjustment of the number of Rights shall become that
number of Rights (calculated to the nearest one ten-
thousandth) obtained by dividing the Purchase Price in
effect immediately prior to adjustment of the Purchase
Price by the Purchase Price in effect immediately after
adjustment of the Purchase Price. The Company shall make
a public announcement of its election to adjust the
number of Rights, indicating the record date for the
adjustment, and, if known at the time, the amount of the
adjustment to be made. This record date may be the date
on which the Purchase Price is adjusted or any day
thereafter, but, if the Rights Certificates have been
issued, shall be at least ten (10) days later than the
date of the public announcement. If Rights Certificates
have been issued, upon each adjustment of the number of
Rights pursuant to this Section 11(i), the Company shall,
as promptly as practicable, cause to be distributed to
holders of record of Rights Certificates on such record
date Rights Certificates evidencing, subject to Section
14 hereof, the additional Rights to which such holders
shall be entitled as a result of such adjustment, or, at
the option of the Company, shall cause to be distributed
to such holders of record in substitution and replacement
for the Rights Certificates held by such holders prior to
the date of adjustment, and upon surrender thereof, if
required by the Company, new Rights Certificates
evidencing all the Rights to which such holders shall be
entitled after such adjustment. Rights Certificates so
to be distributed shall be issued, executed and
countersigned in the manner provided for herein (and may
bear, at the option of the Company, the adjusted Purchase
Price) and shall be registered in the names of the
holders of record of Rights Certificates on the record
date specified in the public announcement.
(j) Irrespective of any adjustment or
change in the Purchase Price or the number of shares of
Common Stock issuable upon the exercise of the Rights,
the Rights Certificates theretofore and thereafter issued
may continue to express the Purchase Price per share and
the number of shares which were expressed in the initial
Rights Certificates issued hereunder.
(k) Before taking any action that would
cause an adjustment reducing the Purchase Price below the
then par value, if any, of the shares of Common Stock
issuable upon exercise of the Rights, the Company shall
take any corporate action which may, in the opinion of
its counsel, be necessary in order that the Company may
validly and legally issue fully paid and nonassessable
shares of Common Stock at such adjusted Purchase Price.
(l) In any case in which this Section 11
shall require that an adjustment in the Purchase Price be
made effective as of a record date for a specified event,
the Company may elect to defer until the occurrence of
such event the issuance to the holder of any Right
exercised after such record date the shares of Common
Stock and other capital stock or securities of the
Company, if any, issuable upon such exercise over and
above the shares of Common Stock and other capital stock
or securities of the Company, if any, issuable upon such
exercise on the basis of the Purchase Price in effect
prior to such adjustment; provided, however, that the
Company shall deliver to such holder a due bill or other
appropriate instrument evidencing such holder's right to
receive such additional shares of Common Stock and other
capital stock or securities upon the occurrence of the
event requiring such adjustment.
(m) Anything in this Section 11 to the
contrary notwithstanding, the Company shall be entitled
to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this
Section 11, as and to the extent that in their good faith
judgment the Board of Directors of the Company shall
determine to be advisable in order that any (i)
consolidation or subdivision of the Common Stock, (ii)
issuance wholly for cash of any shares of Common Stock at
less than the Current Market Price, (iii) issuance wholly
for cash of shares of Common Stock or securities which by
their terms are convertible into or exchangeable for
shares of Common Stock, (iv) stock dividends or (v)
issuance of rights, options or warrants referred to in
this Section 11, hereafter made by the Company to holders
of its Common Stock shall not be taxable to such
shareholders.
(n) The Company covenants and agrees that
it shall not, at any time after the Distribution Date,
(i) consolidate with any other Person (other than a
Subsidiary of the Company in a transaction which complies
with Section 11(o) hereof), (ii) merge with or into or
engage in a share exchange with any other Person (other
than a Subsidiary of the Company in a transaction which
complies with Section 11(o) hereof), or (iii) sell or
transfer (or permit any Subsidiary to sell or transfer),
in one transaction or a series of related transactions,
assets or earning power aggregating more than 50% of the
assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person or
Persons (other than the Company and/or any of its
Subsidiaries in one or more transactions each of which
complies with Section 11(o) hereof), if (x) at the time
of or immediately after such consolidation, merger, share
exchange or sale there are any rights, warrants or other
instruments or securities outstanding or agreements in
effect which would substantially diminish or otherwise
eliminate the benefits intended to be afforded by the
Rights or (y) prior to, simultaneously with or
immediately after such consolidation, merger, share
exchange or sale, the shareholders of the Person who
constitutes, or would constitute, the "Principal Party"
for purposes of Section 13(a) hereof shall have received
a distribution of Rights previously owned by such Person
or any of its Affiliates and Associates.
(o) The Company covenants and agrees
that, after the Distribution Date, it will not, except as
permitted by Section 23 or Section 27 hereof, take (or
permit any Subsidiary to take) any action if at the time
such action is taken it is reasonably foreseeable that
such action will diminish substantially or otherwise
eliminate the benefits intended to be afforded by the
Rights.
(p) Anything in this Agreement to the
contrary notwithstanding, in the event that the Company
shall at any time after the Rights Dividend Declaration
Date and prior to the Distribution Date (i) declare a
dividend on the outstanding shares of Common Stock
payable in shares of Common Stock, (ii) subdivide the
outstanding shares of Common Stock, or (iii) combine the
outstanding shares of Common Stock into a smaller number
of shares, the number of Rights associated with each
share of Common Stock then outstanding, or issued or
delivered thereafter but prior to the Distribution Date,
shall be proportionately adjusted so that the number of
Rights thereafter associated with each share of Common
Stock following any such event shall equal the result
obtained by multiplying the number of Rights associated
with each share of Common Stock immediately prior to such
event by a fraction the numerator of which shall be the
total number of shares of Common Stock outstanding
immediately prior to the occurrence of the event and the
denominator of which shall be the total number of shares
of Common Stock outstanding immediately following the
occurrence of such event.
(q) The failure of the Board of Directors
to declare a Person to be an Adverse Person following
such Person becoming the Beneficial Owner of shares of
Common Stock representing 10% or more of the outstanding
shares of Common Stock shall not imply that such Person
is not an Adverse Person or limit the Board of Directors'
right at any time in the future to declare such Person to
be an Adverse Person.
Section 12. Certificate of Adjusted Purchase
Price or Number of Shares. Whenever an adjustment is
made as provided in Section 11 and Section 13 hereof, the
Company shall (a) promptly prepare a certificate setting
forth such adjustment and a brief statement of the facts
accounting for such adjustment, (b) promptly file with
the Rights Agent, and with each transfer agent for the
Common Stock, a copy of such certificate, and (c) mail a
brief summary thereof to each holder of a Rights
Certificate (or, if prior to the Distribution Date, to
each holder of a certificate representing shares of
Common Stock) in accordance with Section 26 hereof. The
Rights Agent shall be fully protected in relying on any
such certificate and on any adjustment therein contained
and shall not be deemed to have knowledge of any such
adjustment unless and until it shall have received such
certification.
Section 13. Share Exchange, Consolidation,
Merger or Sale or Transfer of Assets or Earning Power.
(a) In the event that, following the
Stock Acquisition Date, directly or indirectly, (x) the
Company shall consolidate with, or merge with and into,
any other Person (other than a Subsidiary of the Company
in a transaction which complies with Section 11(o)
hereof), and the Company shall not be the continuing or
surviving corporation of such consolidation or merger,
(y) any Person (other than a Subsidiary of the Company in
a transaction which complies with Section 11(o) hereof)
shall engage in a share exchange with or shall
consolidate with, or merge with or into, the Company, and
the Company shall be the continuing or surviving
corporation of such share exchange, consolidation or
merger and, in connection with such share exchange,
consolidation or merger, all or part of the outstanding
shares of Common Stock shall be changed into or exchanged
for stock or other securities of any other Person or cash
or any other property, or (z) the Company shall sell or
otherwise transfer (or one or more of its Subsidiaries
shall sell or otherwise transfer), in one transaction or
a series of related transactions, assets or earning power
aggregating 50% or more of the assets or earning power of
the Company and its Subsidiaries (taken as a whole) to
any Person or Persons (other than the Company or any
Subsidiary of the Company in one or more transactions
each of which complies with Section 11(o) hereof), then,
and in each such case (except as may be contemplated by
Section 13(d) hereof), proper provision shall be made so
that (i) each holder of a Right, except as provided in
Section 7(e) hereof, shall thereafter have the right to
receive, upon the exercise thereof at the then current
Purchase Price in accordance with the terms of this
Agreement, such number of validly authorized and issued,
fully paid, non-assessable and freely tradeable shares of
Common Stock of the Principal Party (as such term is
hereinafter defined), not subject to any liens,
encumbrances, rights of first refusal or other adverse
claims, as shall be equal to the result obtained by (1)
multiplying the then current Purchase Price by the number
of shares of Common Stock for which a Right was
exercisable immediately prior to the first occurrence of
a Section 13 Event (or, if a Section 11 Event has
occurred prior to the first occurrence of a Section 13
Event, multiplying the Purchase Price in effect
immediately prior to the first occurrence of a Section 11
Event by the number of shares of Common Stock for which a
Right was exercisable immediately prior to such first
occurrence of a Section 11 Event) and (2) dividing that
product (such product following the first occurrence of a
Section 13 Event shall be referred to as the "Purchase
Price" for each Right and for all purposes of this
Agreement) by 50% of the Current Market Price per share
of the Common Stock of such Principal Party on the date
of consummation of such Section 13 Event; (ii) such
Principal Party shall thereafter be liable for, and shall
assume, by virtue of such Section 13 Event, all the
obligations and duties of the Company pursuant to this
Agreement; (iii) the term "Company" shall thereafter be
deemed to refer to such Principal Party, it being
specifically intended that the provisions of Section 11
hereof shall apply only to such Principal Party following
the first occurrence of a Section 13 Event; (iv) such
Principal Party shall take such steps (including, but not
limited to, the reservation of a sufficient number of
shares of its Common Stock) in connection with the
consummation of any such transaction as may be necessary
to assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be, in relation
to its shares of Common Stock thereafter deliverable upon
the exercise of the Rights; and (v) the provisions of
Section 11(a)(ii) hereof shall be of no effect following
the first occurrence of any Section 13 Event.
(b) "Principal Party" shall mean
(i) in the case of any
transaction described in clause (x) or (y) of
the first sentence of Section 13(a), the Person
that is the issuer of any securities for or
into which shares of Common Stock of the
Company are converted in such share exchange,
merger or consolidation, and if no securities
are so issued, the Person that is the other
party to such merger or consolidation; and
(ii) in the case of any
transaction described in clause (z) of the
first sentence of Section 13(a), the Person
that is the party receiving the greatest
portion of the assets or earning power
transferred pursuant to such transaction or
transactions;
provided, however, that in any such case, (1) if the
Common Stock of such Person is not at such time and has
not been continuously over the preceding twelve (12)
month period registered under Section 12 of the Exchange
Act, and such Person is a direct or indirect Subsidiary
of another Person the Common Stock of which is and has
been so registered, "Principal Party" shall refer to such
other Person; and (2) in case such Person is a
Subsidiary, directly or indirectly, of more than one
Person, the Common Stock of two or more of which are and
have been so registered, "Principal Party" shall refer to
whichever of such Persons is the issuer of the Common
Stock having the greatest aggregate market value.
(c) The Company shall not consummate any
Section 13 Event unless the Principal Party shall have a
sufficient number of authorized shares of its Common
Stock which have not been issued or reserved for issuance
to permit the exercise in full of the Rights in
accordance with this Section 13 and unless prior thereto
the Company and such Principal Party shall have executed
and delivered to the Rights Agent a supplemental
agreement providing for the terms set forth in paragraphs
(a) and (b) of this Section 13 and further providing
that, as soon as practicable after the date of any such
Section 13 Event, the Principal Party will
(i) prepare and file a
registration statement under the Securities
Act, with respect to the Rights and the
securities purchasable upon exercise of the
Rights on an appropriate form, and will use its
best efforts to cause such registration
statement to (A) become effective as soon as
practicable after such filing and (B) remain
effective (with a prospectus at all times
meeting the requirements of the Securities Act)
until the Expiration Date; and
(ii) will deliver to holders of
the Rights historical financial statements for
the Principal Party and each of its Affiliates
which comply in all respects with the
requirements for registration on Form 10 under
the Exchange Act.
The provisions of this Section 13 shall similarly apply
to successive share exchanges, mergers or consolidations
or sales or other transfers. In the event that a Section
13 Event shall occur at any time after the first
occurrence of a Section 11 Event, the Rights which have
not theretofore been exercised shall thereafter become
exercisable in the manner described in Section 13(a).
(d) Notwithstanding anything in this
Agreement to the contrary, Section 13 shall not be
applicable to a transaction described in subparagraphs
(x) and (y) of Section 13(a) if (i) such transaction is
consummated with a Person or Persons who acquired shares
of Common Stock pursuant to a tender offer or exchange
offer for all outstanding shares of Common Stock which
complies with the provisions of Section 11(a)(ii)(A)
hereof (or a wholly-owned Subsidiary of any such Person
or Persons), (ii) the price per share of Common Stock
offered in such transaction is not less than the price
per share of Common Stock paid to all holders of shares
of Common Stock whose shares were purchased pursuant to
such tender offer or exchange offer, and (iii) the form
of consideration being offered to the remaining holders
of shares of Common Stock pursuant to such transaction is
the same as the form of consideration paid pursuant to
such tender offer or exchange offer. Upon consummation
of any such transaction contemplated by this Section
13(d), all Rights hereunder shall expire.
Section 14. Fractional Rights and Fractional
Shares.
(a) The Company shall not be required to
issue fractions of Rights, except prior to the
Distribution Date as provided in Section 11(p) hereof, or
to distribute Rights Certificates which evidence
fractional Rights. In lieu of such fractional Rights,
there shall be paid to the registered holders of the
Rights Certificates with regard to which such fractional
Rights would otherwise be issuable, an amount in cash
equal to the same fraction of the current market value of
a whole Right. For purposes of this Section 14(a), the
current market value of a whole Right shall be the
closing price of the Rights for the Trading Day
immediately prior to the date on which such fractional
Rights would have been otherwise issuable. The closing
price of the Rights for any day shall be the last sale
price, regular way, or, in case no such sale takes place
on such day, the average of the closing bid and asked
prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on
the New York Stock Exchange or, if the Rights are not
listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities
listed on the principal national securities exchange on
which the Rights are listed or admitted to trading, or if
the Rights are not listed or admitted to trading on any
national securities exchange, the last quoted price or,
if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported
on the Nasdaq Stock Market or, if on any such date the
Rights are not quoted on the Nasdaq Stock Market, the
average of the closing bid and asked prices as furnished
by a professional market maker making a market in the
Rights selected by the Board of Directors of the Company.
If on any such date no such market maker is making a
market in the Rights the fair value of the Rights on such
date as determined in good faith by the Board of
Directors of the Company shall be used.
(b) The Company shall not be required to
issue fractions of shares of Common Stock upon exercise
of the Rights or to distribute certificates which
evidence fractional shares of Common Stock. In lieu of
fractional shares of Common Stock, the Company may pay to
the registered holders of Rights Certificates at the time
such Rights are exercised as herein provided an amount in
cash equal to the same fraction of the current market
value of one share of Common Stock. For purposes of this
Section 14(b), the current market value of one share of
Common Stock shall be the closing price per share of
Common Stock (determined pursuant to Section 11(d)
hereof) on the Trading Day immediately prior to the date
of such exercise.
(c) The holder of a Right by the
acceptance of the Rights expressly waives his right to
receive any fractional Rights or any fractional shares
upon exercise of a Right, except as permitted by this
Section 14.
Section 15. Rights of Action. All rights of
action in respect of this Agreement are vested in the
respective registered holders of the Rights Certificates
(and, prior to the Distribution Date, the registered
holders of the Common Stock); and any registered holder
of any Rights Certificate (or, prior to the Distribution
Date, of the Common Stock), without the consent of the
Rights Agent or of the holder of any other Rights
Certificate (or, prior to the Distribution Date, of the
Common Stock), may, in his own behalf and for his own
benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Company to
enforce, or otherwise act in respect of, his right to
exercise the Rights evidenced by such Rights Certificate
in the manner provided in such Rights Certificate and in
this Agreement. Without limiting the foregoing or any
remedies available to the holders of Rights, it is
specifically acknowledged that the holders of Rights
would not have an adequate remedy at law for any breach
of this Agreement and shall be entitled to specific
performance of the obligations hereunder and injunctive
relief against actual or threatened violations of the
obligations hereunder of any Person subject to this
Agreement.
Section 16. Agreement of Rights Holders.
Every holder of a Right by accepting the same consents
and agrees with the Company and the Rights Agent and with
every other holder of a Right that:
(a) prior to the Distribution Date, the
Rights will be transferable only in connection with the
transfer of Common Stock;
(b) after the Distribution Date, the
Rights Certificates are transferable only on the registry
books of the Rights Agent if surrendered at the principal
office or offices of the Rights Agent designated for such
purposes, duly endorsed or accompanied by a proper
instrument of transfer and with the appropriate forms and
certificates duly executed;
(c) subject to Section 6(a) and Section
7(f) hereof, the Company and the Rights Agent may deem
and treat the person in whose name a Rights Certificate
(or, prior to the Distribution Date, the associated
Common Stock certificate) is registered as the absolute
owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing on
the Rights Certificates or the associated Common Stock
certificate made by anyone other than the Company or the
Rights Agent) for all purposes whatsoever, and neither
the Company nor the Rights Agent, subject to the last
sentence of Section 7(e) hereof, shall be required to be
affected by any notice to the contrary; and
(d) notwithstanding anything in this
Agreement to the contrary, neither the Company nor the
Rights Agent shall have any liability to any holder of a
Right or other Person as a result of its inability to
perform any of its obligations under this Agreement by
reason of any preliminary or permanent injunction or
other order, decree or ruling issued by a court of
competent jurisdiction or by a governmental, regulatory
or administrative agency or commission, or any statute,
rule, regulation or executive order promulgated or
enacted by any governmental authority, prohibiting or
otherwise restraining performance of such obligation;
provided, however, the Company must use its best efforts
to have any such order, decree or ruling lifted or
otherwise overturned as soon as possible.
Section 17. Rights Certificate Holder Not
Deemed a Shareholder. No holder, as such, of any Rights
Certificate shall be entitled to vote, receive dividends
or be deemed for any purpose the holder of the shares of
Common Stock or any other securities of the Company which
may at any time be issuable on the exercise of the Rights
represented thereby, nor shall anything contained herein
or in any Rights Certificate be construed to confer upon
the holder of any Rights Certificate, as such, any of the
rights of a shareholder of the Company or any right to
vote for the election of directors or upon any matter
submitted to shareholders at any meeting thereof, or to
give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting
shareholders (except as provided in Section 24 hereof),
or to receive dividends or subscription rights, or
otherwise, until the Right or Rights evidenced by such
Rights Certificate shall have been exercised in
accordance with the provisions hereof.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the
Rights Agent reasonable compensation for all services
rendered by it hereunder and, from time to time, on
demand of the Rights Agent, its reasonable expenses and
counsel fees and disbursements and other disbursements
incurred in the administration and execution of this
Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the
Rights Agent for, and to hold it harmless against, any
loss, liability, or expense, incurred without negligence,
bad faith or willful misconduct on the part of the Rights
Agent, for anything done or omitted by the Rights Agent
in connection with the acceptance and administration of
this Agreement, including the costs and expenses of
defending against any claim of liability in the premises.
(b) The Rights Agent shall be protected
and shall incur no liability for or in respect of any
action taken, suffered or omitted by it in connection
with its administration of this Agreement in reliance
upon any Rights Certificate or certificate for Common
Stock or for other securities of the Company, instrument
of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction,
consent, certificate, statement, or other paper or
document believed by it to be genuine and to be signed,
executed and, where necessary, verified or acknowledged,
by the proper Person or Persons.
Section 19. Merger or Consolidation or Change
of Name of Rights Agent.
(a) Any corporation into which the Rights
Agent or any successor Rights Agent may be merged or with
which it may be consolidated, or any corporation
resulting from any merger or consolidation to which the
Rights Agent or any successor Rights Agent shall be a
party, or any corporation succeeding to the corporate
trust or shareholder services business of the Rights
Agent or any successor Rights Agent, shall be the
successor to the Rights Agent under this Agreement
without the execution or filing of any paper or any
further act on the part of any of the parties hereto;
provided, however, that such corporation would be
eligible for appointment as a successor Rights Agent
under the provisions of Section 21 hereof. In case at
the time such successor Rights Agent shall succeed to the
agency created by this Agreement, any of the Rights
Certificates shall have been countersigned but not
delivered, any such successor Rights Agent may adopt the
countersignature of a predecessor Rights Agent and
deliver such Rights Certificates so countersigned; and in
case at that time any of the Rights Certificates shall
not have been countersigned, any successor Rights Agent
may countersign such Rights Certificates either in the
name of the predecessor or in the name of the successor
Rights Agent; and in all such cases such Rights
Certificates shall have the full force provided in the
Rights Certificates and in this Agreement.
(b) In case at any time the name of the
Rights Agent shall be changed and at such time any of the
Rights Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Rights
Certificates so countersigned; and in case at that time
any of the Rights Certificates shall not have been
countersigned, the Rights Agent may countersign such
Rights Certificates either in its prior name or in its
changed name; and in all such cases such Rights
Certificates shall have the full force provided in the
Rights Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The
Rights Agent undertakes the duties and obligations
imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders
of Rights Certificates, by their acceptance thereof,
shall be bound:
(a) The Rights Agent may consult with
legal counsel (who may be legal counsel for the Company),
and the opinion of such counsel shall be full and
complete authorization and protection to the Rights Agent
as to any action taken or omitted by it in good faith and
in accordance with such opinion.
(b) Whenever in the performance of its
duties under this Agreement the Rights Agent shall deem
it necessary or desirable that any fact or matter
(including, without limitation, the identity of any
Acquiring Person or Adverse Person and the determination
of "Current Market Price") be proved or established by
the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in
respect thereof be herein specifically prescribed) may be
deemed to be conclusively proved and established by a
certificate signed by the Chairman of the Board, the
Chief Executive Officer, the President, any Vice
President, the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of the Company and
delivered to the Rights Agent; and such certificate shall
be full authorization to the Rights Agent for any action
taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such
certificate.
(c) The Rights Agent shall be liable
hereunder only for its own negligence, bad faith or
willful misconduct.
(d) The Rights Agent shall not be liable
for or by reason of any of the statements of fact or
recitals contained in this Agreement or in the Rights
Certificates or be required to verify the same (except as
to its countersignature on such Rights Certificates), but
all such statements and recitals are and shall be deemed
to have been made by the Company only.
(e) The Rights Agent shall not be under
any responsibility in respect of the validity of this
Agreement or the execution and delivery hereof (except
the due execution hereof by the Rights Agent) or in
respect of the validity or execution of any Rights
Certificate (except its countersignature thereof); nor
shall it be responsible for any breach by the Company of
any covenant or condition contained in this Agreement or
in any Rights Certificate; nor shall it be responsible
for any adjustment required under the provisions of
Section 11 or Section 13 hereof or responsible for the
manner, method or amount of any such adjustment or the
ascertaining of the existence of facts that would require
any such adjustment (except with respect to the exercise
of Rights evidenced by Rights Certificates after actual
notice of any such adjustment); nor shall it by any act
hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any
shares of Common Stock or other securities to be issued
pursuant to this Agreement or any Rights Certificate or
as to whether any shares of Common Stock or other
securities will, when so issued, be validly authorized
and issued, fully paid and nonassessable.
(f) The Company agrees that it will
perform, execute, acknowledge and deliver or cause to be
performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may
reasonably be required by the Rights Agent for the
carrying out or performing by the Rights Agent of the
provisions of this Agreement.
(g) The Rights Agent is hereby authorized
and directed to accept instructions with respect to the
performance of its duties hereunder from the Chairman of
the Board, the Chief Executive Officer, the President,
any Vice President, the Secretary, any Assistant
Secretary, the Treasurer or any Assistant Treasurer of
the Company or any designee of any of the foregoing, and
to apply to such officers for advice or instructions in
connection with its duties, and it shall not be liable
for any action taken or suffered to be taken by it in
good faith in accordance with instructions of any such
officer.
(h) The Rights Agent and any shareholder,
director, officer or employee of the Rights Agent may
buy, sell or deal in any of the Rights or other
securities of the Company or become pecuniarily
interested in any transaction in which the Company may be
interested, or contract with or lend money to the Company
or otherwise act as fully and freely as though it were
not Rights Agent under this Agreement. Nothing herein
shall preclude the Rights Agent from acting in any other
capacity for the Company or for any other legal entity.
(i) The Rights Agent may execute and
exercise any of the rights or powers hereby vested in it
or perform any duty hereunder either itself or by or
through its attorneys or agents, and the Rights Agent
shall not be answerable or accountable for any act,
default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any
such act, default, neglect or misconduct; provided,
however, reasonable care was exercised in the selection
and continued employment thereof.
(j) No provision of this Agreement shall
require the Rights Agent to expend or risk its own funds
or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the
exercise of its rights if there shall be reasonable
grounds for believing that repayment of such funds or
adequate indemnification against such risk or liability
is not reasonably assured to it.
(k) If, with respect to any Rights
Certificate surrendered to the Rights Agent for exercise
or transfer, the certificate attached to the form of
assignment or the form of election to purchase, as the
case may be, has either not been completed or indicates
an affirmative response to clause 1 and/or 2 thereof, the
Rights Agent shall not take any further action with
respect to such requested exercise or transfer without
first consulting with the Company.
Section 21. Change of Rights Agent. The
Rights Agent or any successor Rights Agent may resign and
be discharged from its duties under this Agreement upon
thirty (30) days' notice in writing mailed to the
Company, and to each transfer agent of the Common Stock,
by registered or certified mail and to the holders of the
Rights Certificates by first class mail. The Company may
remove the Rights Agent or any successor Rights Agent
upon thirty (30) days' notice in writing, mailed to the
Rights Agent or successor Rights Agent, as the case may
be, and to each transfer agent of the Common Stock, by
registered or certified mail and to the holders of the
Rights Certificates by first class mail. If the Rights
Agent shall resign or be removed or shall otherwise
become incapable of acting, the Company shall appoint a
successor to the Rights Agent. If the Company shall fail
to make such appointment within a period of thirty (30)
days after giving notice of such removal or after it has
been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent
or by any registered holder of a Rights Certificate (who
shall, with such notice, submit his Rights Certificate
for inspection by the Company), then any registered
holder of a Rights Certificate may apply to any court of
competent jurisdiction for the appointment of a new
Rights Agent. Any successor Rights Agent, whether
appointed by the Company or by such a court, shall be a
corporation organized and doing business under the laws
of the United States or of any state of the United States
so long as such corporation is in good standing,
authorized under such laws to exercise corporate trust
powers and is subject to supervision or examination by
federal or state authority and which has at the time of
its appointment as Rights Agent a combined capital and
surplus of at least $50,000,000. After appointment, the
successor Rights Agent shall be vested with the same
powers, rights, duties and responsibilities as if it had
been originally named as Rights Agent without further act
or deed; but the predecessor Rights Agent shall deliver
and transfer to the successor Rights Agent any property
at the time held by it hereunder, and execute and deliver
any further assurance, conveyance, act or deed necessary
for the purpose. Not later than the effective date of
any such appointment, the Company shall file notice
thereof in writing with the predecessor Rights Agent and
each transfer agent of the Common Stock, and mail a
notice thereof in writing to the registered holders of
the Rights Certificates. Failure to give any notice
provided for in this Section 21, however, or any defect
therein, shall not affect the legality or validity of the
Rights, Rights Agreement or the resignation or removal of
the Rights Agent or the appointment of the successor
Rights Agent, as the case may be.
Section 22. Issuance of New Rights
Certificates. Notwithstanding any of the provisions of
this Agreement or of the Rights to the contrary, the
Company may, at its option, issue new Rights Certificates
evidencing Rights in such form as may be approved by its
Board of Directors to reflect any adjustment or change in
the Purchase Price and the number or kind or class of
shares or other securities or property purchasable under
the Rights Certificates made in accordance with the
provisions of this Agreement. In addition, in connection
with the issuance or sale of shares of Common Stock
following the Distribution Date and prior to the
redemption or expiration of the Rights, the Company (a)
shall, with respect to shares of Common Stock so issued
or sold pursuant to the exercise of stock options or
under any employee plan or arrangement, granted or
awarded as of the Distribution Date, or upon the
exercise, conversion or exchange of securities
hereinafter issued by the Company, and (b) may, in any
other case, if deemed necessary or appropriate by the
Board of Directors of the Company, issue Rights
Certificates representing the appropriate number of
Rights in connection with such issuance or sale;
provided, however, that (i) no such Rights Certificate
shall be issued if, and to the extent that, the Company
shall be advised by counsel that such issuance would
create a significant risk of material adverse tax
consequences to the Company or the Person to whom such
Rights Certificate would be issued, and (ii) no such
Rights Certificate shall be issued if, and to the extent
that, appropriate adjustment shall otherwise have been
made in lieu of the issuance thereof.
Section 23. Redemption and Termination.
(a) The Board of Directors of the Company
may, at its option, at any time prior to the earlier of
(i) the close of business on the tenth day following the
Stock Acquisition Date (or, if the Stock Acquisition Date
shall have occurred prior to the Record Date, the close
of business on the tenth day following the Record Date),
or (ii) the Final Expiration Date, redeem all but not
less than all the then outstanding Rights at a redemption
price of $.01 per Right, as such amount may be
appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date
hereof (such redemption price being hereinafter referred
to as the "Redemption Price"). Notwithstanding the
foregoing, the Board of Directors may not redeem any
Rights following a determination pursuant to Section
11(a)(ii)(B) that any Person is an Adverse Person.
Notwithstanding anything contained in this Agreement to
the contrary, the Rights shall not be exercisable after
the first occurrence of a Section 11 Event until such
time as the Company's right of redemption set forth in
the first sentence of this Section 23(a) has expired.
The Company may, at its option, pay the Redemption Price
in cash, shares of Common Stock (based on the Current
Market Price of the Common Stock at the time of
redemption) or any other form of consideration deemed
appropriate by the Board of Directors.
(b) Immediately upon the action of the
Board of Directors of the Company ordering the redemption
of the Rights, evidence of which shall have been filed
with the Rights Agent and without any further action and
without any notice, the right to exercise the Rights will
terminate and the only right thereafter of the holders of
Rights shall be to receive the Redemption Price for each
Right so held. Promptly after the action of the Board of
Directors ordering the redemption of the Rights, the
Company shall give notice of such redemption to the
Rights Agent and the holders of the then outstanding
Rights by mailing such notice to all such holders at each
holder's last address as it appears upon the registry
books of the Rights Agent or, prior to the Distribution
Date, on the registry books of the Transfer Agent for the
Common Stock. Any notice which is mailed in the manner
herein provided shall be deemed given, whether or not the
holder receives the notice. Each such notice of
redemption will state the method by which the payment of
the Redemption Price will be made.
Section 24. Exchange.
(a) The Board of Directors of the Company
may, at its option, at any time after any Person becomes
an Acquiring Person or is determined to be an Adverse
Person pursuant to Section 11(a)(ii)(B), exchange all or
part of the then outstanding and exercisable Rights
(which shall not include Rights that have become void
pursuant to the provisions of Section 7(e) hereof) for
shares of Common Stock at an exchange ratio of one share
of Common Stock per Right, appropriately adjusted to
reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such
exchange ratio being hereinafter referred to as the
"Exchange Ratio"). Notwithstanding the foregoing, the
Board of Directors shall not be empowered to effect such
exchange at any time after any Person (other than the
Company, any Subsidiary of the Company, any employee
benefit plan of the Company or any such Subsidiary, or
any entity holding Common Stock for or pursuant to the
terms of any such plan), together with all Affiliates and
Associates of such Person, becomes the Beneficial Owner
of fifty percent (50%) or more of the Common Stock then
outstanding.
(b) Immediately upon the action of the
Board of Directors of the Company ordering the exchange
of any Rights pursuant to subsection (a) of this Section
24 and without any further action and without any notice,
the right to exercise such Rights shall terminate and the
only right thereafter of a holder of such Rights shall be
to receive that number of shares of Common Stock equal to
the number of such Rights held by such holder multiplied
by the Exchange Ratio. The Company shall promptly give
public notice of any such exchange; provided, however,
that the failure to give, or any defect in, such notice
shall not affect the validity of such exchange. The
Company promptly shall mail a notice of any such exchange
to all of the holders of such Rights at their last
addresses as they appear upon the registry books of the
Rights Agent. Any notice which is mailed in the manner
herein provided shall be deemed given, whether or not the
holder receives the notice. Each such notice of exchange
will state the method by which the exchange of the Common
Stock for Rights will be effected and, in the event of
any partial exchange, the number of Rights which will be
exchanged. Any partial exchange shall be effected pro
rata based on the number of Rights (other than Rights
which have become void pursuant to the provisions of
Section 7(e) hereof) held by each holder of Rights.
(c) In the event that there shall not be
sufficient shares of Common Stock issued but not
outstanding or authorized but unissued to permit any
exchange of Rights as contemplated in accordance with
this Section 24, the Company shall take all such action
as may be necessary to authorize additional shares of
Common Stock for issuance upon exchange of the Rights.
(d) The Company shall not be required to
issue fractions of shares of Common Stock or to
distribute certificates which evidence fractional shares
of Common Stock. In lieu of such fractional shares of
Common Stock, there shall be paid to the registered
holders of the Right Certificates with regard to which
such fractional share of Common Stock would otherwise be
issuable, an amount in cash equal to the same fraction of
the current market value of a whole share of Common
Stock. For the purposes of this subsection (d), the
current market value of a whole share of Common Stock
shall be the closing price of a share of Common Stock (as
determined pursuant to the second sentence of Section
11(d)(i) hereof) 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 Company shall propose, at
any time after the Distribution Date, (i) to pay any
dividend payable in stock of any class to the holders of
Common Stock or to make any other distribution to the
holders of Common Stock (other than a regular quarterly
cash dividend out of earnings or retained earnings of the
Company), or (ii) to offer to the holders of Common Stock
rights or warrants to subscribe for or to purchase any
additional shares of Common Stock or shares of stock of
any class or any other securities, rights or options, or
(iii) to effect any reclassification of its Common Stock
(other than a reclassification involving only the
subdivision of outstanding shares of Common Stock), or
(iv) to effect any share exchange, consolidation or
merger into or with any other Person (other than a
Subsidiary of the Company in a transaction which complies
with Section 11(o) hereof), or to effect any sale or
other transfer (or to permit one or more of its
Subsidiaries to effect any sale or other transfer), in
one transaction or a series of related transactions, of
more than 50% of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to any
other Person or Persons (other than the Company and/or
any of its Subsidiaries in one or more transactions each
of which complies with Section 11(o) hereof), or (v) to
effect the liquidation, dissolution or winding up of the
Company, then, in each such case, the Company shall give
to each holder of a Rights Certificate, to the extent
feasible and in accordance with Section 26 hereof, a
notice of such proposed action, which shall specify the
record date for the purposes of such stock dividend,
distribution of rights or warrants, or the date on which
such reclassification, share exchange, consolidation,
merger, sale, transfer, liquidation, dissolution, or
winding up is to take place and the date of participation
therein by the holders of the shares of Common Stock, if
any such date is to be fixed, and such notice shall be so
given in the case of any action covered by clause (i) or
(ii) above at least twenty (20) days prior to the record
date for determining holders of the shares of Common
Stock for purposes of such action, and in the case of any
such other action, at least twenty (20) days prior to the
date of the taking of such proposed action or the date of
participation therein by the holders of the shares of
Common Stock, whichever shall be the earlier.
(b) In case any Section 11 Event shall
occur, then, in any such case, (i) the Company shall as
soon as practicable thereafter give to each holder of a
Rights Certificate, to the extent feasible and in
accordance with Section 26 hereof, a notice of the
occurrence of such event, which shall specify the event
and the consequences of the event to holders of Rights
under Section 11(a)(ii) hereof, and (ii) all references
in the preceding paragraph to Common Stock shall be
deemed thereafter to refer to Common Stock and/or other
securities, if appropriate.
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 Rights Certificate
to or on the Company shall be sufficiently given or made
if sent by first-class mail, postage prepaid, addressed
(until another address is filed in writing with the
Rights Agent) as follows:
AMCORE Financial, Inc.
501 Seventh Street
Rockford, Illinois 61104
Attention: Corporate Secretary
Subject to the provisions of Section 21, any notice or
demand authorized by this Agreement to be given or made
by the Company or by the holder of any Rights Certificate
to or on the Rights Agent shall be sufficiently given or
made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with
the Company) as follows:
Firstar Trust Company
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attention: Corporate Trust Department
Notices or demands authorized by this Agreement to be
given or made by the Company or the Rights Agent to the
holder of any Rights Certificate (or, if prior to the
Distribution Date, to the holder of certificates
representing shares of Common Stock) shall be
sufficiently given or made if sent by first-class mail,
postage prepaid, addressed to such holder at the address
of such holder as shown on the registry books of the
Company.
Section 27. Supplements and Amendments. Prior
to the Distribution Date and subject to the penultimate
sentence of this Section 27, the Company may and the
Rights Agent shall, if the Company so directs, supplement
or amend any provision of this Agreement without the
approval of any holders of certificates representing
shares of Common Stock and associated Rights. From and
after the Distribution Date and subject to the
penultimate sentence of this Section 27, the Company may
and the Rights Agent shall, if the Company so directs,
supplement or amend this Agreement without the approval
of any holders of Rights Certificates in order to (i)
cure any ambiguity, (ii) correct or supplement any
provision contained herein which may be defective or
inconsistent with any other provisions herein, (iii)
shorten or lengthen any time period hereunder, or (iv)
change or supplement the provisions hereunder in any
manner which the Company may deem necessary or desirable
and which shall not adversely affect the interests of the
holders of Rights Certificates (other than an Acquiring
Person, Adverse Person or an Affiliate or Associate of an
Acquiring Person or Adverse Person); provided, however,
that this Agreement may not be supplemented or amended to
lengthen, pursuant to clause (iii) of this sentence, (A)
a time period relating to when the Rights may be redeemed
at such time as the Rights are not then redeemable, or
(B) any other time period unless such lengthening is for
the purpose of protecting, enhancing or clarifying the
rights of, and/or the benefits to, the holders of Rights
(other than an Acquiring Person or Adverse Person and its
Associates and Affiliates). Upon the delivery of a
certificate from an appropriate officer of the Company
which states that the proposed supplement or amendment is
in compliance with the terms of this Section 27, the
Rights Agent shall execute such supplement or amendment.
Prior to the Distribution Date, the interests of the
holders of Rights shall be deemed coincident with the
interests of the holders of Common Stock.
Section 28. Successors. All the covenants and
provisions of this Agreement by or for the benefit of the
Company or the Rights Agent shall bind and inure to the
benefit of their respective successors and assigns
hereunder.
Section 29. Determinations and Actions by the
Board of Directors, etc. For all purposes of this
Agreement, any calculation of the number of shares of
Common Stock or any other class of capital stock
outstanding at any particular time, including for
purposes of determining the particular percentage of such
outstanding shares of Common Stock of which any Person is
the Beneficial Owner, shall be made in accordance with
the last sentence of Rule 13d-3d(1)(i) of the General
Rules and Regulations under the Exchange Act. The Board
of Directors of the Company shall have the exclusive
power and authority to administer this Agreement and to
exercise all rights and powers specifically granted to
the Board or to the Company, or as may be necessary or
advisable in the administration of this Agreement,
including, without limitation, the right and power to (i)
interpret the provisions of this Agreement, and (ii) make
all determinations deemed necessary or advisable for the
administration of this Agreement (including a
determination to redeem or not redeem the Rights or to
amend the Agreement). All such actions, calculations,
interpretations and determinations (including, for
purpose of clause (y) below, all omissions with respect
to the foregoing) which are done or made by the Board in
good faith, shall (x) be final, conclusive and binding on
the Company, the Rights Agent, the holders of the Rights
and all other parties, and (y) not subject the Board to
any liability to the holders of the Rights.
Section 30. Benefits of This Agreement.
Nothing in this Agreement shall be construed to give to
any Person other than the Company, the Rights Agent and
the registered holders of the Rights Certificates (and,
prior to the Distribution Date, registered holders of the
Common Stock) any legal or equitable right, remedy or
claim under this Agreement; but this Agreement shall be
for the sole and exclusive benefit of the Company, the
Rights Agent and the registered holders of the Rights
Certificates (and, prior to the Distribution Date,
registered holders of the Common Stock).
Section 31. Severability. If any term,
provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force
and effect and shall in no way be affected, impaired or
invalidated; provided, however, that notwithstanding
anything in this Agreement to the contrary, if any such
term, provision, covenant or restriction is held by such
court or authority to be invalid, void or unenforceable
and the Board of Directors of the Company determines in
its good faith judgment that severing the invalid
language from this Agreement would adversely affect the
purpose or effect of this Agreement, the right of
redemption set forth in Section 23 hereof shall be
reinstated and shall not expire until the close of
business on the tenth day following the date of such
determination by the Board of Directors. Without
limiting the foregoing, if any provision requiring a
majority of the Board of Directors of the Company to be
Continuing Directors or if any provision requiring a
majority of the members of the Board of Directors who are
not officers of the Company and who are not
representatives, nominees, Affiliates or Associates of an
Acquiring Person to act is held by any court of competent
jurisdiction or other authority to be invalid, void or
unenforceable, such determination shall be made by the
Board of Directors of the Company in accordance with
applicable law and the Company's Certificate of
Incorporation and bylaws.
Section 32. Governing Law. This Agreement,
each Right and each Rights Certificate issued hereunder
shall be deemed to be a contract made under the laws of
the State of Nevada and for all purposes shall be
governed by and construed in accordance with the laws of
such state applicable to contracts made and to be
performed entirely within such state.
Section 33. 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 34. Descriptive Headings. Descriptive
headings of the several Sections of this Agreement are
inserted for convenience only and shall not control or
affect the meaning or construction of any of the
provisions hereof.
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed and their
respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
Attest: AMCORE FINANCIAL, INC.
By: By:
Name: Name:
Title: Title:
Attest: FIRSTAR TRUST COMPANY
By: By:
Name: Name:
Title: Title:
EXHIBIT A
[Form of Rights Certificate]
Certificate No. R- Rights
NOT EXERCISABLE AFTER FEBRUARY 27, 2006 OR
EARLIER IF REDEEMED BY THE COMPANY. THE RIGHTS
ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE
COMPANY, AT $.01 PER RIGHT ON THE TERMS SET
FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN
ACQUIRING PERSON, AN ADVERSE PERSON OR AN
AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON OR
ADVERSE PERSON (AS SUCH TERMS ARE DEFINED IN THE
RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF
SUCH RIGHTS MAY BECOME NULL AND VOID. [THE
RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE
ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO
WAS OR BECAME AN ACQUIRING PERSON OR ADVERSE
PERSON OR AN AFFILIATE OR ASSOCIATE OF AN
ACQUIRING PERSON OR ADVERSE PERSON (AS SUCH
TERMS ARE DEFINED IN THE RIGHTS AGREEMENT).
ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE
RIGHTS REPRESENTED HEREBY MAY BECOME NULL AND
VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION
7(e) OF SUCH AGREEMENT.](1)
Rights Certificate
AMCORE FINANCIAL, INC.
This certifies that , or
registered assigns, is the registered holder of the
number of Rights set forth above, each of which entitles
the owner thereof, subject to the terms, provisions and
conditions of the Rights Agreement, dated as of February
21, 1996, (the "Rights Agreement"), between AMCORE
FINANCIAL, INC., a Nevada corporation (the "Company"),
and FIRSTAR TRUST COMPANY, a Wisconsin banking
corporation (the "Rights Agent"), to purchase from the
Company at any time prior to 5:00 P.M. (Rockford,
Illinois, time) on February 27, 2006 at the office or
offices of the Rights Agent designated for such purpose,
or its successors as Rights Agent, one fully paid and
nonassessable share of capital stock, par value $.33 per
share (the "Common Stock") of the Company, at a purchase
price of $70.00 per share (the "Purchase Price"), upon
presentation and surrender of this Rights Certificate
with the Form of Election to Purchase and related
___________________
1 The portion of the legend in brackets shall be
inserted only if applicable and shall replace the
preceding sentence.
Certificate duly executed. The Purchase Price shall be
paid in cash. The number of Rights evidenced by this
Rights Certificate, the number of shares of Common Stock
which may be purchased upon exercise thereof and the
Purchase Price per share set forth above are the number
of Rights, number of shares of Common Stock and Purchase
Price as of February 27, 1996 based on the Common Stock
as constituted at such date, and are subject to
adjustment upon the happening of certain events as
provided in the Rights Agreement.
Upon the occurrence of a Section 11 Event (as
such term is defined in the Rights Agreement), if the
Rights evidenced by this Rights Certificate are
beneficially owned by (i) an Acquiring Person or Adverse
Person or an Affiliate or Associate of any such Person
(as such terms are defined in the Rights Agreement), (ii)
a transferee of any such Acquiring Person, Adverse
Person, Associate or Affiliate, or (iii) under certain
circumstances specified in the Rights Agreement, a
transferee of a person who, concurrently with or after
such transfer, became an Acquiring Person, Adverse Person
or an Affiliate or Associate of an Acquiring Person or
Adverse Person, such Rights shall become null and void
and no holder hereof shall have any rights whatsoever
with respect to such Rights from and after the occurrence
of such Section 11 Event.
This Rights Certificate is subject to all of
the terms, provisions and conditions of the Rights
Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part
hereof and to which Rights Agreement reference is hereby
made for a full description of the rights, limitations of
rights, obligations, duties and immunities hereunder of
the Rights Agent, the Company and the holders of the
Rights Certificates, which limitations of rights include
the temporary suspension of the exercisability of such
Rights under the specific circumstances set forth in the
Rights Agreement. Copies of the Rights Agreement are on
file at the office of the Company and are also available
upon written request to the Company.
This Rights Certificate, with or without other
Rights Certificates, upon surrender at the office or
offices of the Rights Agent designated for such purpose,
or its successors as Rights Agent, may be exchanged for
another Rights Certificate or Rights Certificates of like
tenor and date evidencing Rights entitling the holder to
purchase a like aggregate number of shares of Common
Stock as the Rights evidenced by the Rights Certificate
or Rights Certificates surrendered shall have entitled
such holder to purchase. If this Rights Certificate
shall be exercised in part, the holder shall be entitled
to receive upon surrender hereof another Rights
Certificate or Certificates representing the number of
whole Rights not exercised.
Subject to the provisions of the Rights
Agreement, the Rights evidenced by this Certificate (i)
may be redeemed by the Company at its option at a
redemption price of $.01 per Right payable, at the
election of the Company, in cash, Common Stock, or such
other consideration as the Board of Directors may
determine, at any time prior to the earlier of the close
of business on (a) the tenth day following the Stock
Acquisition Date (as such time period may be extended or
shortened pursuant to the Rights Agreement) or (b) the
Final Expiration Date or (ii) may be exchanged in whole
or in part for shares of Common Stock and/or other equity
securities of the Company deemed to have the same value
as the shares of Common Stock. In addition, the Rights
may be exchanged, in whole or in part, for shares of the
Common Stock having essentially the same value or
economic rights as such shares. Immediately upon the
action of the Board of Directors of the Company
authorizing any such exchange, and without any further
action or any notice, the Rights (other than Rights which
are not subject to such exchange) will terminate and the
Rights will only enable holders to receive the shares
issuable upon such exchange.
No fractional shares of Common Stock will be
issued upon the exercise of any Right or Rights evidenced
hereby, but in lieu thereof a cash payment will be made,
as provided in the Rights Agreement.
No holder, as such, of this Rights Certificate
shall be entitled to vote or receive dividends or be
deemed for any purpose the holder of the shares of Common
Stock or of any other securities of the Company which may
at any time be issuable on the exercise hereof, nor shall
anything contained in the Rights Agreement or herein be
construed to confer upon the holder hereof, as such, any
of the rights of a shareholder of the Company or any
right to vote for the election of directors or upon any
matter submitted to shareholders at any meeting thereof,
or to give or withhold consent to any corporate action,
or to receive notice of meetings or other actions
affecting shareholders (except as provided in the Rights
Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced
by this Rights Certificate shall have been exercised as
provided in the Rights Agreement.
This Rights Certificate shall not be valid or
obligatory for any purpose until it shall have been
countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper
officers of the Company and its corporate seal.
Dated as of ,
ATTEST: AMCORE FINANCIAL, INC.
By:
Secretary Title:
Countersigned:
FIRSTAR TRUST COMPANY
By:
Authorized Signatory
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate.)
Please print social security or other
identifying number of the transferor:
FOR VALUE RECEIVED
hereby sells, assigns and transfers unto
(Please print name and address of transferee)
(Please print social security or other
identifying number of the transferee)
this Rights Certificate, together with all right, title
and interest therein, and does hereby irrevocably
constitute and appoint Attorney, to
transfer the within Rights Certificate on the books of
the within-named Company, with full power of
substitution.
Dated: ,
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking
the appropriate boxes that:
(1) this Rights Certificate [ ] is [ ] is not
being sold, assigned and transferred by or on behalf of a
Person who is or was an Acquiring Person, Adverse Person
or an Affiliate or Associate of any such Person (as such
terms are defined in the Rights Agreement);
(2) after due inquiry and to the best
knowledge of the undersigned, it [ ] did [ ] did not
acquire the Rights evidenced by this Rights Certificate
from any Person who is, was or subsequently became an
Acquiring Person, Adverse Person or an Affiliate or
Associate of any such Person.
Dated: ,
Signature
Signature Guaranteed:
NOTICE
The signatures to the foregoing Assignment and
Certificate must correspond to the name as written upon
the face of this Rights Certificate in every particular,
without alteration or enlargement or any change
whatsoever.
FORM OF ELECTION TO PURCHASE
(To be executed if the registered holder desires to
exercise Rights represented by the Rights Certificate.)
To: AMCORE FINANCIAL, INC.
The undersigned hereby irrevocably elects to
exercise Rights represented by this Rights
Certificate to purchase the shares of Common Stock issuable
upon the exercise of the Rights (or such other securities of
the Company or of any other person which may be issuable
upon the exercise of the Rights) and requests that
certificates for such shares be issued in the name of and
delivered to:
(Please print name and address)
Please insert social security
or other identifying number:
If such number of Rights shall not be all the
Rights evidenced by this Rights Certificate, a new Rights
Certificate for the balance of such Rights shall be
registered in the name of and delivered to:
(Please print name and address)
Please insert social security
or other identifying number:
Dated: ,
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) the Rights evidenced by this Rights
Certificate [ ] are [ ] are not being exercised by or on
behalf of a Person who is or was an Acquiring Person,
Adverse Person or an Affiliate or Associate of any such
Person (as such terms are defined in the Rights Agreement);
(2) after due inquiry and to the best knowledge
of the undersigned, it [ ] did [ ] did not acquire the
Rights evidenced by this Rights Certificate from any Person
who is, was or subsequently became an Acquiring Person,
Adverse Person or an Affiliate or Associate of any such
Person.
Dated: ,
Signature
Signature Guaranteed:
NOTICE
The signatures to the foregoing Election to
Purchase and Certificate must correspond to the name as
written upon the face of this Rights Certificate in every
particular, without alteration or enlargement or any change
whatsoever.
