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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
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FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
MILACRON INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 31-1062125
(State of incorporation (I.R.S. Employer
or organization) Identification No.)
4701 Marburg Avenue
Cincinnati, OH 45209
(Address, including zip code, of principal executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
Rights to Purchase New York Stock Exchange
Series A Participating Cumulative
Preferred Stock
If this form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A.(c), check the following box. |X|
If this form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective pursuant to
General Instruction A.(d), check the following box. |_|
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of class)
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<PAGE>
Item 1. Description of Registrant's Securities To Be Registered
On February 5, 1999, the Board of Directors of Milacron Inc. (the
"Company") declared a dividend of one Right for each outstanding share of
Common Stock, par value $1.00 per share, of the Company (the "Common
Shares"). The Rights will be issued to the holders of record of Common
Shares outstanding on February 5, 1999, and with respect to Common Shares
issued thereafter until the Distribution Date (as defined below) and, in
certain circumstances, with respect to Common Shares issued after the
Distribution Date. Each Right, when it becomes exercisable as described
below, will entitle the registered holder to purchase from the Company one
one-thousandth of a share of Series A Participating Cumulative Preferred
Stock, par value $1.00 per share, of the Company (the "Preferred Shares")
at a price of $70.00 (the "Purchase Price"). The description and terms of
the Rights are set forth in a Rights Agreement dated as of February 5, 1999
(the "Rights Agreement"), between the Company and ChaseMellon Shareholder
Services, L.L.C., as Rights Agent (the "Rights Agent").
Until the earlier of (i) such time as the Company learns that a person
or group (including any affiliate or associate of such person or group) has
acquired, or has obtained the right to acquire, beneficial ownership of
more than 15% of the outstanding Common Shares (such person or group being
an "Acquiring Person") and (ii) such date, if any, as may be designated by
the Board of Directors of the Company following the commencement of, or
first public disclosure of an intention to commence, a tender or exchange
offer for outstanding Common Shares which could result in such person or
group becoming the beneficial owner of more than 15% of the outstanding
Common Shares (the earlier of such dates being called the "Distribution
Date"), the Rights will be evidenced by the certificates for Common Shares
registered in the names of the holders thereof (which certificates for
Common Shares shall also be deemed to be Right Certificates, as defined
below) and not by separate Right Certificates. Therefore, until the
Distribution Date, the Rights will be transferred with and only with the
Common Shares.
As soon as practicable following the Distribution Date, separate
certificates evidencing the Rights ("Right Certificates") will be mailed to
holders of record of the Common Shares as of the close of business on the
Distribution Date (and to each initial record holder of certain Common
Shares originally issued after the Distribution Date), and such separate
Right Certificates alone will thereafter evidence the Rights.
The Rights are not exercisable until the Distribution Date and will
expire on February 5, 2009 (the "Expiration Date"), unless earlier redeemed
by the Company as described below.
The number of Preferred Shares or other securities issuable upon
exercise of the Rights is subject to adjustment by the Board of Directors
of the Company in the event of any change in the Common Shares or the
Preferred Shares, whether by reason of stock dividends, stock splits,
recapitalizations, mergers, consolidations, combinations or exchanges of
securities, split-ups, split-offs, spin-offs, liquidations, other similar
changes in capitalization, any distribution or issuance of assets,
evidences of indebtedness or subscription rights, options or warrants to
holders of Common Shares or Preferred Shares or otherwise. The Purchase
Price and the number of Preferred Shares or other securities issuable upon
exercise of the Rights are subject to adjustment from time to time in the
event of the declaration of a stock dividend on the Common Shares payable
in Common Shares or a subdivision or combination of the Common Shares prior
to the Distribution Date.
<PAGE>
The Preferred Shares are authorized to be issued in fractions which
are an integral multiple of one one-thousandth of a Preferred Share. The
Company may, but is not required to, issue fractions of shares upon the
exercise of Rights, and, in lieu of fractional shares, the Company may make
a cash payment based on the market price of such shares on the first
trading date prior to the date of exercise or utilize a depository
arrangement as provided by the terms of the Preferred Shares.
Subject to the right of the Board of Directors of the Company to
redeem the Rights as described below, at such time as there is an Acquiring
Person, proper provision shall be made so that the holder of each Right
will thereafter have the right to receive, upon exercise thereof, for the
Purchase Price, that number of one one-thousandths of a Preferred Share
equal to the number of Common Shares which at the time of such transaction
would have a market value of twice the Purchase Price. Any Rights that are
or were beneficially owned by an Acquiring Person on or after the
Distribution Date will become null and void and will not be subject to the
"flip-in" provision.
In the event the Company is acquired in a merger or other business
combination by an Acquiring Person that is a publicly traded corporation or
50% or more of the Company's assets or assets representing 50% or more of
the Company's earning power are sold, leased, exchanged or otherwise
transferred (in one or more transactions) to an Acquiring Person that is a
publicly traded corporation, each Right will entitle its holder (subject to
the next paragraph) to purchase, for the Purchase Price, that number of
common shares of such corporation which at the time of the transaction
would have a market value of twice the Purchase Price. In the event the
Company is acquired in a merger or other business combination by an
Acquiring Person that is not a publicly traded entity or 50% or more of the
Company's assets or assets representing 50% or more of the Company's
earning power are sold, leased, exchanged or otherwise transferred (in one
or more transactions) to an Acquiring Person that is not a publicly traded
entity, each Right will entitle its holder (subject to the next paragraph)
to purchase, for the Purchase Price, at such holder's option, (i) that
number of shares of the surviving corporation in the transaction with such
entity (which surviving corporation could be the Company) which at the time
of the transaction would have a book value of twice the Purchase Price,
(ii) that number of shares of such entity which at the time of the
transaction would have a book value of twice the Purchase Price or (iii) if
such entity has an affiliate which has publicly traded common shares, that
number of common shares of such affiliate which at the time of the
transaction would have a market value of twice the Purchase Price.
Any Rights that are at any time beneficially owned by an Acquiring
Person (or any affiliate or associate of an Acquiring Person) will be null
and void and nontransferable and any holder of any such Right (including
any purported transferee or subsequent holder) will be unable to exercise
or transfer any such Right.
At any time prior to the earlier of (i) such time as there is an
Acquiring Person and (ii) the Expiration Date, the Board of Directors of
the Company may redeem the Rights at a redemption price of $.01 per Right
(the "Redemption Price").
Immediately upon the action of the Board of Directors of the Company
electing to redeem the Rights, and without any further action and without
any notice, the right to exercise the Rights will terminate and the only
right of the holders of Rights will be to receive the Redemption Price.
<PAGE>
After there is an Acquiring Person, the Board of Directors may elect
to exchange each Right (other than Rights owned by an Acquiring Person) for
consideration per Right consisting of one-half of the securities that would
be issuable at such time upon the exercise of one Right pursuant to the
terms of the Rights Agreement.
At any time prior to a Distribution Date, the Company may, without the
approval of any holder of the Rights, supplement or amend any provision of
the Rights Agreement (including the date on which the Distribution Date
shall occur), except that no supplement or amendment shall be made which
reduces the Redemption Price.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the
right to vote or to receive dividends.
The Rights Agreement specifying the terms of the Rights, the
Certificate of Designation of the Preferred Shares specifying the terms of
the Preferred Shares (Exhibit A to the Rights Agreement) and the form of
Right Certificate (Exhibit B to the Rights Agreement) are filed herewith as
exhibits. The foregoing description of the Rights does not purport to be
complete and is qualified in its entirety by reference to such exhibits,
which are incorporated herein by reference.
Item 2. Exhibits
1. Rights Agreement dated as of February 5, 1999, between
Milacron Inc. and ChaseMellon Shareholder Services, L.L.C.,
as Rights Agent.
2. Form of Certificate of the Voting Powers, Designations,
Preferences and Relative Participating, Optional and Other
Special Rights and Qualifications, Limitations or
Restrictions of Series A Participating Cumulative Preferred
Stock of Milacron Inc. (which is attached as Exhibit A to
the Rights Agreement filed as Exhibit 1 hereto).
3. Form of Right Certificate (which is attached as Exhibit B to
the Rights Agreement filed as Exhibit 1 hereto).
<PAGE>
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.
MILACRON INC.,
by
/s/ Ronald D. Brown
--------------------------------
Date: February 5, 1999 Name: Ronald D. Brown
Title: Senior Vice President and
Chief Financial Officer
<PAGE>
INDEX OF EXHIBITS
Page Number
in
Sequentially
Exhibit Numbered
Number Title Statement
1. Rights Agreement dated as of
February 5, 1999, between
Milacron Inc. and ChaseMellon
Shareholder Services, L.L.C., as
Rights Agent. 7
2. Form of Certificate of the Voting
Powers, Designations, Preferences
and Relative Participating,
Optional and Other Special Rights
and Qualifications, Limitations or
Restrictions of Series A
Participating Cumulative Preferred
Stock of Milacron Inc. (which is
attached as Exhibit A to the Rights
Agreement filed as Exhibit 1
hereto). 35
3. Form of Right Certificate (which is
attached as Exhibit B to the Rights
Agreement filed as Exhibit 1
hereto). 41
<PAGE>
RIGHTS AGREEMENT dated as of February 5, 1999,
between MILACRON INC., a Delaware corporation (the
"Company"), and CHASEMELLON SHAREHOLDER SERVICES,
L.L.C., a New Jersey limited liability company, as
Rights Agent (the "Rights Agent").
The Board of Directors of the Company has authorized and declared
a dividend of one Right (as hereinafter defined) for each share of Common
Stock, par value $1.00 per share, of the Company (the "Common Stock")
outstanding at the Close of Business (as hereinafter defined) on the date
hereof (the "Record Date"), and has authorized the issuance of one Right
(as such number may hereafter be adjusted pursuant to the provisions of
this Rights Agreement) with respect to each share of Common Stock that
shall become outstanding between the Record Date and the earliest of the
Distribution Date, the Redemption Date or the Expiration Date (as such
terms are hereinafter defined); provided, however, that Rights may be
issued with respect to shares of Common Stock that shall become outstanding
after the Distribution Date and prior to the earlier of the Redemption Date
or the Expiration Date in accordance with the provisions of Section 23.
Each Right shall initially represent the right to purchase one
one-thousandth (1/1,000) of a share of Series A Participating Cumulative
Preferred Stock, par value $1.00 per share, of the Company (the "Preferred
Shares"), having the powers, rights and preferences set forth in the
Certificate of Designation attached as Exhibit A.
Accordingly, in consideration of the promises and the mutual
agreements herein set forth, the parties hereby agree as follows:
SECTION 1. Certain Definitions. For purposes of this Rights
Agreement, the following terms have the meanings indicated:
"Acquiring Person" shall mean any Person who or which, alone or
together with all Affiliates and Associates of such Person, shall be the
Beneficial Owner of more than 15% of the Common Shares then outstanding,
but shall not include (a) the Company, any Subsidiary of the Company, any
employee benefit or compensation plan of the Company or of any of its
Subsidiaries, or any Person holding Common Shares for or pursuant to the
terms of any such employee benefit or compensation plan and (b) any such
Person who has become and is the Beneficial Owner of more than 15% of the
Common Shares then outstanding solely as the result of (i) a change in the
aggregate number of Common Shares outstanding since the last date on which
such Person acquired Beneficial Ownership of any Common Shares or (ii) the
acquisition by such Person or one or more of its Affiliates or Associates
of Beneficial Ownership of additional Common Shares if such acquisition was
made in the good faith belief that such acquisition would not (A) cause the
Beneficial Ownership by such Person, together with its Affiliates and
Associates, to exceed 15% of the Common Shares outstanding at the time of
such acquisition and such good faith belief was based on the good faith
reliance on information contained in publicly filed reports or documents of
the Company that are inaccurate or out-of-date or (B) otherwise cause a
Distribution Date or the adjustment provided for in Section 11(a) to occur.
Notwithstanding clause (b)(ii) of the prior sentence, if any Person that is
not an Acquiring Person due to such clause (b)(ii) does not reduce its
percentage of Beneficial Ownership of Common Shares to 15% or less by the
Close of Business on the fifth Business Day after notice from the Company
(the date of notice being the first day) that such Person's Beneficial
Ownership of Common Shares so exceeds 15% such Person shall, at the end of
such five Business Day
<PAGE>
period, become an Acquiring Person (and such clause (b)(ii) shall no longer
apply to such Person). For purposes of this definition, the determination
whether any Person acted in "good faith" shall be conclusively determined
by the Board of Directors of the Company.
"Affiliate" and "Associate", when used with reference to any
Person, shall have the respective meanings ascribed to such terms in Rule
12b-2 of the General Rules and Regulations under the Exchange Act, as in
effect on the date of this Rights Agreement.
A Person shall be deemed the "Beneficial Owner" of, and shall be
deemed to "beneficially own", and shall be deemed to have "Beneficial
Ownership" of, any securities:
(a) which such Person or any of such Person's Affiliates or
Associates is deemed to "beneficially own" within the meaning of Rule
13d-3 of the General Rules and Regulations under the Exchange Act, as
in effect on the date of this Rights Agreement;
(b) which such Person or any of such Person's Affiliates or
Associates has: (i) the right to acquire (whether such right is
exercisable immediately or only after the passage of time) pursuant to
any agreement, arrangement or understanding (written or oral), or upon
the exercise of conversion rights, exchange rights, rights (other than
the Rights), warrants or options, or otherwise; provided, however,
that a Person shall not be deemed under this clause (i) to be the
Beneficial Owner of, or to beneficially own, or to have Beneficial
Ownership of, any securities tendered pursuant to a tender or exchange
offer made by or on behalf of such Person or any of such Person's
Affiliates or Associates until such tendered securities are accepted
for purchase or exchange thereunder or cease to be subject to
withdrawal by the tendering security holder; or (ii) the right to vote
pursuant to any agreement, arrangement or understanding (written or
oral); provided, however, that a Person shall not be deemed under this
clause (ii) to be the Beneficial Owner of, or to beneficially own, any
security if (A) the agreement, arrangement or understanding (written
or oral) to vote such security arises solely from a revocable proxy or
consent given to such Person in response to a public proxy or consent
solicitation made generally to all holders of Common Shares of the
Company pursuant to, and in accordance with, the applicable rules and
regulations under the Exchange Act and (B) the beneficial ownership of
such security is not also then reportable on Schedule 13D under the
Exchange Act (or any comparable or successor report); or
(c) which are beneficially owned, directly or indirectly, by any
other Person with which such Person or any of such Person's Affiliates
or Associates has any agreement, arrangement or understanding (written
or oral) for the purpose of acquiring, holding, voting (except
pursuant to a revocable proxy as described in the proviso to clause
(b)(ii) of this definition) or disposing of any securities of the
Company.
Notwithstanding the foregoing, nothing contained in this definition shall
cause a Person ordinarily engaged in business as an underwriter of
securities to be deemed the "Beneficial Owner" of, or to "beneficially
own", or to have "Beneficial Ownership" of, any securities acquired in a
bona fide firm commitment underwriting pursuant to an underwriting
agreement with the Company.
<PAGE>
"Book Value", when used with reference to Common Shares issued by
any Person, shall mean the amount of equity of such Person applicable to
each Common Share, determined (a) in accordance with generally accepted
accounting principles in effect on the date as of which such Book Value is
to be determined, (b) using all the consolidated assets and all the
consolidated liabilities of such Person on the date as of which such Book
Value is to be determined, except that no value shall be included in such
assets for goodwill arising from consummation of a business combination,
and (c) after giving effect to (i) the exercise of all rights, options and
warrants to purchase such Common Shares (other than the Rights), and the
conversion of all securities convertible into such Common Shares, at an
exercise or conversion price, per Common Share, which is less than such
Book Value before giving effect to such exercise or conversion (whether or
not exercisability or convertibility is conditioned upon occurrence of a
future event), (ii) all dividends and other distributions on the capital
stock of such Person declared prior to the date as of which such Book Value
is to be determined and to be paid or made after such date, and (iii) any
other agreement, arrangement or understanding (written or oral), or
transaction or other action contemplated prior to the date as of which such
Book Value is to be determined that would have the effect of thereafter
reducing such Book Value.
"Business Combination" shall have the meaning set forth in
Section 11(c)(i).
"Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday that is not a day on which banking institutions in the
Borough of Manhattan, The City of New York, are authorized or obligated by
law or executive order to close.
"Certificate of Designation" shall mean the Certificate of
Designation of Series A Participating Cumulative Preferred Stock setting
forth the powers, preferences, rights, qualifications, limitations and
restrictions of such series of Preferred Stock of the Company, a copy of
which is attached as Exhibit A.
"Close of Business" on any given date shall mean 5:00 p.m.,
Eastern time, on such date; provided, however, that, if such date is not a
Business Day, "Close of Business" shall mean 5:00 p.m., Eastern time, on
the next succeeding Business Day.
"Common Shares", when used with reference to the Company prior to
a Business Combination, shall mean the shares of Common Stock of the
Company or any other shares of capital stock of the Company into which the
Common Stock shall be reclassified or changed. "Common Shares", when used
with reference to any Person (other than the Company prior to a Business
Combination), shall mean shares of capital stock of such Person (if such
Person is a corporation) of any class or series, or units of equity
interests in such Person (if such Person is not a corporation) of any class
or series, the terms of which do not limit (as a maximum amount and not
merely in proportional terms) the amount of dividends or income payable or
distributable on such class or series or the amount of assets distributable
on such class or series upon any voluntary or involuntary liquidation,
dissolution or winding up of such Person and do not provide that such class
or series is subject to redemption at the option of such Person, or any
shares of capital stock or units of equity interests into which the
foregoing shall be reclassified or changed.
"Common Stock" shall have the meaning set forth in the
introductory paragraph of this Rights Agreement.
<PAGE>
"Company" shall have the meaning set forth in the heading of this
Rights Agreement; provided, however, that if there is a Business
Combination, "Company" shall have the meaning set forth in Section
11(c)(iii).
The term "control" with respect to any Person shall mean the
power to direct the management and policies of such Person, directly or
indirectly, by or through stock ownership, agency or otherwise, or pursuant
to or in connection with an agreement, arrangement or understanding
(written or oral) with one or more other Persons by or through stock
ownership, agency or otherwise; and the terms "controlling" and
"controlled" shall have meanings correlative to the foregoing.
"Distribution Date" shall have the meaning set forth in Section
3(b).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
in effect on the date in question, unless otherwise specifically provided.
"Exchange Consideration" shall have the meaning set forth in
Section 11(b)(i).
"Expiration Date" shall have the meaning set forth in Section
7(a).
"Major Part", when used with reference to the assets of the
Company and its Subsidiaries as of any date, shall mean assets (a) having a
fair market value aggregating 50% or more of the total fair market value of
all the assets of the Company and its Subsidiaries (taken as a whole) as of
the date in question, (b) accounting for 50% or more of the total value
(net of depreciation and amortization) of all the assets of the Company and
its Subsidiaries (taken as a whole) as would be shown on a consolidated or
combined balance sheet of the Company and its Subsidiaries as of the date
in question, prepared in accordance with generally accepted accounting
principles then in effect, or (c) accounting for 50% or more of the total
amount of earnings before interest, taxes, depreciation and amortization or
of the revenues of the Company and its Subsidiaries (taken as a whole) as
would be shown on, or derived from, a consolidated or combined statement of
income or net earnings of the Company and its Subsidiaries for the period
of 12 months ending on the last day of the Company's monthly accounting
period next preceding the date in question, prepared in accordance with
generally accepted accounting principles then in effect.
"Market Value", when used with reference to Common Shares on any
date, shall mean the average of the daily closing prices, per share, of
such Common Shares for the period which is the shorter of (a) 30
consecutive Trading Days ending on the Trading Day immediately prior to the
date in question or (b) the number of consecutive Trading Days beginning on
the Trading Day immediately after the date of the first public announcement
of the event requiring a determination of the Market Value of such Common
Shares and ending on the Trading Day immediately prior to the record date
of such event; provided, however, that, in the event that the Market Value
of such Common Shares is to be determined in whole or in part during a
period following the announcement by the issuer of such Common Shares of
any action of the type described in Section 12(a) that would require an
adjustment thereunder, then, and in each such case, the Market Value of
such Common Shares shall be appropriately adjusted to reflect the effect of
such action on the market price of such Common Shares. The closing price
for each Trading Day shall be the closing price quoted on the composite
tape for securities listed on the New York Stock Exchange, or, if such
securities are not quoted on such composite tape or if such securities are
not listed on
<PAGE>
such exchange, on the principal United States securities exchange
registered under the Exchange Act (or any recognized foreign stock
exchange) on which such securities are listed, or, if such securities are
not listed on any such exchange, the closing price quoted on The Nasdaq
Stock Market or, if such securities are not so quoted, the average of the
closing bid and asked quotations with respect to a share of such securities
on any National Association of Securities Dealers, Inc. quotations system
or such other system then in use, or if no such quotations are available,
the average of the closing bid and asked prices as furnished by a
professional market maker making a market in such securities selected by
the Board of Directors of the Company, or if on any such Trading Day no
market maker is making a market in such securities, the closing price of
such securities on such Trading Day shall be deemed to be the fair value of
such securities 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, the holders
of Rights and all other Persons); provided, however, that for the purpose
of determining the closing price of the Preferred Shares for any Trading
Day on which there is no such market maker for the Preferred Shares the
closing price on such Trading Day shall be deemed to be the Formula Number
(as defined in the Certificate of Designation) multiplied by the closing
price of the Common Shares of the Company on such Trading Day.
"Person" shall mean an individual, corporation, partnership,
limited liability company, joint venture, association, trust,
unincorporated organization or other entity.
"Preferred Shares" shall have the meaning set forth in the
introductory paragraph of this Rights Agreement. Any reference in this
Rights Agreement to Preferred Shares shall be deemed to include any
authorized fraction of a Preferred Share, unless the context otherwise
requires.
"Principal Party" shall mean the Surviving Person in a Business
Combination; provided, however, that, (i) if such Surviving Person is a
direct or indirect Subsidiary of any other Person, "Principal Party" shall
mean the Person which is the ultimate parent of such Surviving Person and
which is not itself a Subsidiary of another Person, and (ii) in the event
ultimate control of such Surviving Person is shared by two or more Persons,
"Principal Party" shall mean that Person that is immediately controlled by
such two or more Persons.
"Purchase Price" with respect to each Right shall mean $70.00, as
such amount may from time to time be adjusted as provided herein, and shall
be payable in lawful money of the United States of America. All references
herein to the Purchase Price shall mean the Purchase Price as in effect at
the time in question.
"Record Date" shall have the meaning set forth in the
introductory paragraph of this Rights Agreement.
"Redemption Date" shall have the meaning set forth in Section
24(a).
"Redemption Price" with respect to each Right shall mean $.01, as
such amount may from time to time be adjusted in accordance with Section
12. All references herein to the Redemption Price shall mean the Redemption
Price as in effect at the time in question.
<PAGE>
"Registered Common Shares" shall mean Common Shares that are, as
of the date of consummation of a Business Combination, and have
continuously been for the 12 months immediately preceding such date,
registered under Section 12 of the Exchange Act.
"Right Certificate" shall mean a certificate evidencing a Right
in substantially the form attached as Exhibit B.
"Rights" shall mean the rights to purchase Preferred Shares (or
other securities) as provided in this Rights Agreement.
"Securities Act" shall mean the Securities Act of 1933, as in
effect on the date in question, unless otherwise specifically provided.
"Subsidiary" shall mean a Person, at least a majority of the
total outstanding voting power (being the power under ordinary
circumstances (and not merely upon the happening of a contingency) to vote
in the election of directors of such Person (if such Person is a
corporation) or to participate in the management and control of such Person
(if such Person is not a corporation)) of which is owned, directly or
indirectly, by another Person or by one or more other Subsidiaries of such
other Person or by such other Person and one or more other Subsidiaries of
such other Person.
"Surviving Person" shall mean (a) the Person which is the
continuing or surviving Person in a consolidation or merger specified in
Section 11(c)(i)(A) or 11(c)(i)(B) or (b) the Person to which the Major
Part of the assets of the Company and its Subsidiaries is sold, leased,
exchanged or otherwise transferred or disposed of in a transaction
specified in Section 11(c)(i)(C); provided, however, that, if the Major
Part of the assets of the Company and its Subsidiaries is sold, leased,
exchanged or otherwise transferred or disposed of in one or more related
transactions specified in Section 11(c)(i)(C) to more than one Person, the
"Surviving Person" in such case shall mean the Person that acquired assets
of the Company and/or its Subsidiaries with the greatest fair market value
in such transaction or transactions.
"Trading Day" shall mean a day on which the principal national
securities exchange (or principal recognized foreign stock exchange, as the
case may be) on which any securities or Rights, as the case may be, are
listed or admitted to trading is open for the transaction of business or,
if the securities or Rights in question are not listed or admitted to
trading on any national securities exchange (or recognized foreign stock
exchange, as the case may be), a Business Day.
SECTION 2. Appointment of Rights Agent. The Company hereby
appoints the Rights Agent to act as agent for the Company in accordance
with the terms and conditions hereof, and the Rights Agent hereby accepts
such appointment. The Company may from time to time appoint one or more
co-Rights Agents as it may deem necessary or desirable (the term "Rights
Agent" being used herein to refer, collectively, to the Rights Agent
together with any such co-Rights Agents). The Rights Agent shall have no
duty to supervise, and in no event shall be liable for, the acts or
omissions of any such co-Rights Agent. In the event the Company appoints
one or more co-Rights Agents, the respective duties of the Rights Agent and
any co-Rights Agents shall be as the Company shall determine.
<PAGE>
SECTION 3. Issue of Rights and Right Certificates. (a) One Right
shall be associated with each Common Share outstanding on the Record Date,
each additional Common Share that shall become outstanding between the
Record Date and the earliest of the Distribution Date, the Redemption Date
or the Expiration Date and each additional Common Share with which Rights
are issued after the Distribution Date but prior to the earlier of the
Redemption Date or the Expiration Date as provided in Section 23; provided,
however, that, if the number of outstanding Rights are combined into a
smaller number of outstanding Rights pursuant to Section 12(a), the
appropriate fractional Right determined pursuant to such Section shall
thereafter be associated with each such Common Share.
(b) Until the earlier of (i) such time as the Company learns that
a Person has become an Acquiring Person or (ii) the Close of Business on
such date, if any, as may be designated by the Board of Directors of the
Company following the commencement of, or first public disclosure of an
intent to commence, a tender or exchange offer by any Person (other than
the Company, any Subsidiary of the Company, any employee benefit or
compensation plan of the Company or of any of its Subsidiaries, or any
Person holding Common Shares for or pursuant to the terms of any such
employee benefit or compensation plan) for outstanding Common Shares, if
upon consummation of such tender or exchange offer such Person could be the
Beneficial Owner of more than 15% of the outstanding Common Shares (the
Close of Business on the earlier of such dates being the "Distribution
Date"), (x) the Rights shall be evidenced by the certificates for Common
Shares registered in the names of the holders thereof and not by separate
Right Certificates, (y) the Rights, including the right to receive Right
Certificates, shall be transferable only in connection with the transfer of
Common Shares and (z) the Company shall notify the Rights Agent as promptly
as practicable that the Distribution Date has occurred. As soon as
practicable after the Distribution Date, the Rights Agent shall send, by
first-class, postage-prepaid mail, to each record holder of Common Shares
as of the Distribution Date, at the address of such holder shown on the
records of the Company, a Right Certificate evidencing one whole Right for
each Common Share (or for the number of Common Shares with which one whole
Right is then associated if the number of Rights per Common Share held by
such record holder has been adjusted in accordance with the proviso in
Section 3(a)). If the number of Rights associated with each Common Share
has been adjusted in accordance with the proviso in Section 3(a), at the
time of distribution of the Right Certificates the Company may make any
necessary and appropriate rounding adjustments so that Right Certificates
representing only whole numbers of Rights are distributed and cash is paid
in lieu of any fractional Right in accordance with Section 15(a). The
Company shall notify the Rights Agent as promptly as practicable of any
such adjustments. As of and after the Distribution Date, the Rights shall
be evidenced solely by such Right Certificates.
(c) No later than 30 days after the Record Date, the Company will
send a copy of a Summary of Rights to Purchase Preferred Shares, in
substantially the form attached hereto as Exhibit C (the "Summary of
Rights"), by first-class, postage prepaid mail, to each record holder of
Common Shares as of the Close of Business on the Record Date at the address
of such holder shown on the records of the Company. With respect to any
certificate for Common Shares outstanding as of the Record Date, until the
earliest of the Distribution Date, the Redemption Date or the Expiration
Date, (i) the Rights associated with the Common Shares represented by any
such certificate shall be evidenced by such certificates for the Common
Shares with a copy of the Summary of Rights attached thereto and the
registered holders of the Common Shares shall also be the registered
holders of the associated Rights and (ii) the surrender for transfer of any
such certificate, even without a
<PAGE>
copy of the Summary of Rights attached thereto, shall also constitute the
transfer of the Rights associated with the Common Shares represented
thereby.
(d) Certificates issued for Common Shares after the Record Date
(including upon transfer or exchange of outstanding Common Shares), but
prior to the earliest of the Distribution Date, the Redemption Date or the
Expiration Date, shall have printed on, written on or otherwise affixed to
them the following legend:
This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in a Rights Agreement dated as of February
5, 1999 as it may be amended from time to time (the "Rights
Agreement"), between Milacron Inc. (the "Company") and ChaseMellon
Shareholder Services, L.L.C., as Rights Agent (the "Rights Agent"),
the terms of which are hereby incorporated herein by reference and a
copy of which is on file at the principal executive offices of the
Company. Under certain circumstances, as set forth in the Rights
Agreement, such Rights shall be evidenced by separate certificates and
shall no longer be evidenced by this certificate. At the expense of
the Company, the Rights Agent shall mail to the holder of this
certificate a copy of the Rights Agreement without charge to such
holder after receipt of a written request therefor. Rights
beneficially owned by Acquiring Persons or their Affiliates or
Associates (as such terms are defined in the Rights Agreement) and by
any subsequent holder of such Rights are null and void and
nontransferable.
Notwithstanding this Section 3(d), the omission of a legend shall not
affect the enforceability of any part of this Rights Agreement or the
rights of any holder of Rights.
SECTION 4. Form of Right Certificates. The Right Certificates
(and the form of election to purchase and form of assignment to be printed
on the reverse side thereof) shall be in substantially the form set forth
as Exhibit B 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, and do not purport to
increase the duties or responsibilities of the Rights Agent beyond, the
provisions of this Rights Agreement, or as may be required to comply with
any applicable law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any stock exchange on which the Rights may
from time to time be listed, or to conform to usage. Subject to the
provisions of Sections 7, 11 and 23, the Right Certificates, whenever
issued, shall be dated as of the Distribution Date, and on their face shall
entitle the holders thereof to purchase such number of Preferred Shares as
shall be set forth therein for the Purchase Price set forth therein,
subject to adjustment from time to time as herein provided.
SECTION 5. Execution, Countersignature and Registration. (a) The
Right Certificates shall be executed on behalf of the Company by the
Chairman of the Board, the Chief Executive Officer, the President, the
Chief Operating Officer, the Treasurer or any Vice President (whether
preceded by any additional title) of the Company, either manually or by
facsimile signature, and have affixed thereto the Company's seal or a
facsimile thereof, which shall be attested by the Secretary, an Assistant
Secretary or a Vice President (whether preceded by any additional title,
provided that such Vice President shall not have also executed the Right
Certificates) of the Company, either manually or by facsimile signature.
The Right Certificates shall be manually countersigned by the Rights Agent
and shall not be valid or obligatory for any purpose unless so
countersigned. In case any officer of the Company who shall have signed any
of the Right Certificates shall cease to be such an
<PAGE>
officer of the Company before countersignature by the Rights Agent and
issuance and delivery by the Company, such Right Certificates may
nevertheless 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 Right Certificates had not ceased to be such an officer of the
Company; and any Right Certificate may be signed on behalf of the Company
by any Person who, at the actual date of execution of such Right
Certificate, shall be a proper officer of the Company to sign such Right
Certificate, although at the date of execution of this Rights Agreement any
such Person was not such an officer of the Company.
(b) Following the Distribution Date, the Rights Agent shall keep
or cause to be kept, at its office in the United States designated for such
purpose, books for registration and transfer of the Right Certificates
issued hereunder. Such books shall show the names and addresses of the
respective holders of the Right Certificates, the number of Rights
evidenced by each of the Right Certificates, the certificate number of each
of the Right Certificates and the date of each of the Right Certificates.
SECTION 6. Transfer, Split-Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates;
Uncertificated Rights. (a) Subject to the provisions of Sections 7(e) and
15, at any time after the Distribution Date, and at or prior to the Close
of Business on the earlier of the Redemption Date or the Expiration Date,
any Right Certificate or Right Certificates may be transferred, split-up,
combined or exchanged for another Right Certificate or Right Certificates
representing, in the aggregate, the same number of Rights as the Right
Certificate or Right Certificates surrendered then represented. Any
registered holder desiring to transfer, split-up, combine or exchange any
Right Certificate shall make such request in writing delivered to the
Rights Agent and shall surrender the Right Certificate or Right
Certificates to be transferred, split-up, combined or exchanged at the
office of the Rights Agent in the United States designated for such
purpose; provided, however, that neither the Rights Agent nor the Company
shall be obligated to take any action whatsoever with respect to the
transfer of any Right Certificate surrendered for transfer until the
registered holder shall have completed and signed the certification
contained in the form of assignment on the reverse side of such Right
Certificate and shall have provided such additional evidence of the
identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates
or Associates thereof as the Company or the Rights Agent shall reasonably
request. Thereupon the Rights Agent shall, subject to Sections 7(e) and 15,
countersign and deliver to the Person entitled thereto a Right Certificate
or Right Certificates, as the case may be, as so requested. The Company may
require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer, split-up, combination
or exchange of Right Certificates.
(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 valid Right 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 cancelation of the Right Certificate if mutilated, the
Company shall make a new Right Certificate of like tenor and deliver such
new Right Certificate to the Rights Agent for delivery to the registered
owner in lieu of the Right Certificate so lost, stolen, destroyed or
mutilated.
<PAGE>
(c) Notwithstanding any other provision hereof, the Company and
the Rights Agent may amend this Rights Agreement to provide for
uncertificated Rights in addition to or in place of Rights evidenced by
Right Certificates.
SECTION 7. Exercise of Rights; Expiration Date of Rights. (a)
Subject to Section 7(e) and except as otherwise provided herein (including
Section 11), each Right shall entitle the registered holder thereof, upon
exercise thereof as provided herein, to purchase for the Purchase Price, at
any time after the Distribution Date and at or prior to the earlier of (i)
the Close of Business on the 10th anniversary of the date of this Rights
Agreement (the Close of Business on such date being the "Expiration Date")
and (ii) the Redemption Date, one one-thousandth (1/1,000) of a Preferred
Share, subject to adjustment from time to time as provided in Sections 11
and 12.
(b) The registered holder of any Right Certificate may exercise
the Rights evidenced thereby (except as otherwise provided herein) in whole
or in part at any time after the Distribution Date, upon surrender of the
Right Certificate, with the form of election to purchase on the reverse
side thereof duly and properly executed, to the Rights Agent at the office
of the Rights Agent in the United States designated for such purpose,
together with payment of the Purchase Price for each one one-thousandth
(1/1,000) of a Preferred Share as to which the Rights are exercised, at or
prior to the earlier of (i) the Expiration Date or (ii) the Redemption
Date.
(c) Upon receipt of a Right Certificate representing exercisable
Rights, with the form of election to purchase duly and properly executed,
accompanied by payment of the Purchase Price for the Preferred Shares to be
purchased together with an amount equal to any applicable transfer tax, in
lawful money of the United States of America, in cash or by certified check
or money order payable to the order of the Company, the Rights Agent shall
thereupon (i) either (A) promptly requisition from any transfer agent of
the Preferred Shares (or make available, if the Rights Agent is the
transfer agent) certificates for the number of Preferred Shares 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 Preferred Shares with a depositary agent under a depositary
arrangement, promptly requisition from the depositary agent depositary
receipts representing the number of one one-thousandths (1/1,000s) of a
Preferred Share to be purchased (in which case certificates for the
Preferred Shares to be represented by such receipts shall be deposited by
the transfer agent with the depositary agent) and the Company shall direct
the depositary agent to comply with all such requests, (ii) when
appropriate, promptly requisition from the Company the amount of cash to be
paid in lieu of issuance of fractional shares in accordance with Section
15, (iii) promptly after receipt of such certificates or depositary
receipts, cause the same to be delivered to or upon the order of the
registered holder of such Right Certificate, registered in such name or
names as may be designated by such holder and (iv) when appropriate, after
receipt promptly deliver such cash to or upon the order of the registered
holder of such Right Certificate.
(d) In case the registered holder of any Right Certificate shall
exercise fewer than all the Rights evidenced thereby, a new Right
Certificate evidencing Rights equivalent to the Rights remaining
unexercised shall be issued by the Rights Agent and delivered to the
registered holder of such Right Certificate or to his duly authorized
assigns, subject to the provisions of Section 15.
<PAGE>
(e) Notwithstanding anything in this Rights Agreement to the
contrary, any Rights that are at any time beneficially owned by (i) an
Acquiring Person or an Affiliate or Associate of an Acquiring Person, (ii)
a transferee of an Acquiring Person (or of any such Associate or Affiliate)
who becomes a transferee after the Acquiring Person becomes such (other
than pursuant to the penultimate sentence of the definition of "Acquiring
Person"), or (iii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee prior to or concurrently
with the Acquiring Person becoming such and receives such Rights pursuant
to either (A) a transfer (whether or not for consideration) from the
Acquiring Person to holders of equity interests in such Acquiring Person or
to any Person with whom the Acquiring 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 in each case 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 Rights Agreement or otherwise. The Company shall use all
reasonable efforts to ensure that the provisions of this Section 7(e) are
complied with, but shall have no liability to any holder of any Right
Certificate or any other Person as a result of its failure to make any
determinations with respect to an Acquiring Person or its Affiliate or
Associate, or any transferee thereof, hereunder.
(f) Notwithstanding anything in this Rights Agreement to the
contrary, neither the Rights Agent nor the Company shall be obligated to
undertake any action with respect to a registered holder of any Right
Certificates 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 Right 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.
(g) The Company may temporarily suspend, for a period of time not
to exceed 90 calendar days after the Distribution Date, the exercisability
of the Rights in order to prepare and file a registration statement under
the Securities Act, on an appropriate form, with respect to the Preferred
Shares purchasable upon exercise of the Rights and permit such registration
statement to become effective; provided, however, that no such suspension
shall remain effective after, and the Rights shall without any further
action by the Company or any other Person become exercisable immediately
upon, the effectiveness of such registration statement. Upon any such
suspension, the Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended and shall issue
a further public announcement at such time as the suspension is no longer
in effect, in each case, with prompt notice thereof to the Rights Agent.
Notwithstanding any provision herein to the contrary, the Rights shall not
be exercisable in any jurisdiction if the requisite qualification under the
Blue Sky or securities laws of such jurisdiction shall not have been
obtained or the exercise of the Rights shall not be permitted under
applicable law.
SECTION 8. Cancelation and Destruction of Right Certificates. All
Right Certificates surrendered or presented for the purpose of exercise,
transfer, split-up, combination or exchange shall, and any Right
Certificate representing Rights that have become null and void and
nontransferable pursuant to Section 7(e) surrendered or presented for any
purpose shall, if surrendered or presented to the Company or to any of its
agents, be delivered to the Rights Agent for cancelation or in canceled
form, or, if surrendered or
<PAGE>
presented to the Rights Agent, shall be canceled by it, and no Right
Certificates shall be issued in lieu thereof except as expressly permitted
by this Rights Agreement. The Company shall deliver to the Rights Agent for
cancelation and retirement, and the Rights Agent shall so cancel and
retire, any Right Certificate purchased or acquired by the Company. The
Rights Agent shall deliver all canceled Right Certificates to the Company,
or shall, at the written request of the Company, destroy such canceled
Right Certificates, and in such case shall deliver a certificate of
destruction thereof to the Company.
SECTION 9. Reservation and Availability of Preferred Shares. (a)
The Company covenants and agrees that it shall cause to be reserved and
kept available out of its authorized and unissued Preferred Shares or any
authorized and issued Preferred Shares held in its treasury, free from
preemptive rights or any right of first refusal, a number of Preferred
Shares sufficient to permit the exercise in full of all outstanding Rights.
(b) In the event that there shall not be sufficient Preferred
Shares issued but not outstanding or authorized but unissued to permit the
exercise or exchange of Rights in accordance with Section 11, the Company
covenants and agrees that it shall take all such action as may be necessary
to authorize additional Preferred Shares for issuance upon the exercise or
exchange of Rights pursuant to Section 11; provided, however, that if the
Company is unable to cause the authorization of additional Preferred
Shares, then the Company shall, or in lieu of seeking any such
authorization, the Company may, to the extent necessary and permitted by
applicable law and any agreements or instruments in effect prior to the
Distribution Date to which it is a party, (i) upon surrender of a Right,
pay cash equal to the Purchase Price in lieu of issuing Preferred Shares
and requiring payment therefor, (ii) upon due exercise of a Right and
payment of the Purchase Price for each Preferred Share as to which such
Right is exercised, issue equity securities having a value equal to the
value of the Preferred Shares that otherwise would have been issuable
pursuant to Section 11, which value shall be determined by a nationally
recognized investment banking firm selected by the Board of Directors of
the Company, or (iii) upon due exercise of a Right and payment of the
Purchase Price for each Preferred Share as to which such Right is
exercised, distribute a combination of Preferred Shares, cash and/or other
equity and/or debt securities having an aggregate value equal to the value
of the Preferred Shares that otherwise would have been issuable pursuant to
Section 11, which value shall be determined by a nationally recognized
investment banking firm selected by the Board of Directors of the Company.
To the extent that any legal or contractual restrictions (pursuant to
agreements or instruments in effect prior to the Distribution Date to which
it is party) prevent the Company from paying the full amount payable in
accordance with the foregoing sentence, the Company shall pay to holders of
the Rights as to which such payments are being made all amounts that are
not then restricted on a pro rata basis as such payments become permissible
under such legal or contractual restrictions until such payments have been
paid in full.
(c) The Company covenants and agrees that it shall take all such
action as may be necessary to ensure that all Preferred Shares delivered
upon exercise or exchange of Rights shall, at the time of delivery of the
certificates for such Preferred Shares (subject to payment of the Purchase
Price), be duly and validly authorized and issued and fully paid and
nonassessable shares.
(d) So long as the Preferred Shares issuable upon the exercise or
exchange of Rights are to be listed on any national securities exchange,
the Company covenants and agrees to use its best efforts to cause, from and
after such time as the Rights become
<PAGE>
exercisable or exchangeable, all Preferred Shares reserved for such
issuance to be listed on such securities exchange upon official notice of
issuance upon such exercise or exchange.
(e) The Company further covenants and agrees that it shall 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
Right Certificates or of any Preferred Shares or Common Shares or other
securities upon the exercise or exchange of the 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 Right Certificates to a Person other
than, or in respect of the issuance or delivery of certificates for the
Preferred Shares or Common Shares or other securities, as the case may be,
in a name other than that of, the registered holder of the Right
Certificate evidencing Rights surrendered for exercise or exchange or to
issue or deliver any certificates for Preferred Shares or Common Shares or
other securities, as the case may be, upon the exercise or exchange of any
Rights until any such tax shall have been paid (any such tax being payable
by the holder of such Right Certificate at the time of surrender) or until
it has been established to the Company's satisfaction that no such tax is
due.
SECTION 10. Preferred Shares Record Date. Each Person in whose
name any certificate for Preferred Shares or Common Shares or other
securities is issued upon the exercise or exchange of Rights shall for all
purposes be deemed to have become the holder of record of the Preferred
Shares or Common Shares or other securities, as the case may be,
represented thereby on, and such certificate shall be dated, the date on
which the Right Certificate evidencing such Rights was duly surrendered and
payment of any Purchase Price (and any applicable transfer taxes) was made;
provided, however, that, if the date of such surrender and payment is a
date upon which the transfer books of the Company for the Preferred Shares
or Common Shares or other securities, as the case may be, are closed, such
Person shall be deemed to have become the record holder of such Preferred
Shares or Common Shares or other securities, as the case may be, on, and
such certificate shall be dated, the next succeeding Business Day on which
the transfer books of the Company for the Preferred Shares or Common Shares
or other securities, as the case may be, are open.
SECTION 11. Adjustments in Rights After There Is an Acquiring
Person; Exchange of Rights for Shares; Business Combinations. (a) Upon a
Person becoming an Acquiring Person, proper provision shall be made so that
each holder of a Right, except as provided in Section 7(e), shall
thereafter have a right to receive, upon exercise thereof for the Purchase
Price in accordance with the terms of this Rights Agreement, such number of
one one-thousandths (1/1,000s) of a Preferred Share as shall equal the
result obtained by multiplying the Purchase Price by a fraction, the
numerator of which is the number of one one-thousandths (1/1,000s) of a
Preferred Share for which such Right is then exercisable and the
denominator of which is 50% of the Market Value of the Common Shares on the
date on which such Person became an Acquiring Person. As soon as
practicable after a Person becomes an Acquiring Person (provided the
Company shall not have elected to make the exchange permitted by Section
11(b)(i) for all outstanding Rights), the Company covenants and agrees to
use its best efforts to:
(i) prepare and file a registration statement under the
Securities Act, on an appropriate form, with respect to the Preferred
Shares purchasable upon exercise of the Rights;
<PAGE>
(ii) cause such registration statement to become effective as
soon as practicable after such filing;
(iii) cause such registration statement to remain effective (with
a prospectus at all times meeting the requirements of the Securities
Act) until the Expiration Date; and
(iv) qualify or register the Preferred Shares purchasable upon
exercise of the Rights under the Blue Sky or securities laws of such
jurisdictions as may be necessary or appropriate.
(b)(i) The Board of Directors of the Company may, at its option,
at any time after a Person becomes an Acquiring Person, mandatorily
exchange all or part of the then outstanding and exercisable Rights (which
shall not include Rights that shall have become null and void and
nontransferable pursuant to the provisions of Section 7(e)) for
consideration per Right consisting of either (A) one-half of the securities
that would be issuable at such time upon the exercise of one Right in
accordance with Section 11(a) or, if applicable, Section 9(b)(ii) or
9(b)(iii) or (B) if applicable, the cash consideration specified in Section
9(b)(i) (the consideration issuable per Right pursuant to this Section
11(b)(i) being the "Exchange Consideration"). The Board of Directors of the
Company may, at its option, issue, in substitution for Preferred Shares,
Common Shares in an amount per Preferred Share equal to the Formula Number
(as defined in the Certificate of Designation) if there are sufficient
Common Shares issued but not outstanding or authorized but unissued. If the
Board of Directors of the Company elects to exchange all the Rights for
Exchange Consideration pursuant to this Section 11(b)(i) prior to the
physical distribution of the Rights Certificates, the Corporation may
distribute the Exchange Consideration in lieu of distributing Right
Certificates, in which case for purposes of this Rights Agreement holders
of Rights shall be deemed to have simultaneously received and surrendered
for exchange Right Certificates on the date of such distribution.
(ii) Any action of the Board of Directors of the Company ordering
the exchange of any Rights pursuant to Section 11(b)(i) shall be
irrevocable and, immediately upon the taking of such action and without any
further action and without any notice, the right to exercise any such Right
pursuant to Section 11(a) shall terminate and the only right thereafter of
a holder of such Right shall be to receive the Exchange Consideration in
exchange for each such Right held by such holder or, if the Exchange
Consideration shall not have been paid or issued, to exercise any such
Right pursuant to Section 11(c)(i). The Company shall promptly give public
notice of any such exchange (with prompt notice thereof to the Rights
Agent); 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 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 shall state the method by which the exchange of the
Rights for the Exchange Consideration 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 shall have become null and void and
nontransferable pursuant to the provisions of Section 7(e)) held by each
holder of Rights.
<PAGE>
(c)(i) In the event that, following a Distribution Date, directly
or indirectly, any transactions specified in the following clause (A), (B)
or (C) of this Section 11(c)(i) (each such transaction being a "Business
Combination") shall be consummated:
(A) the Company shall consolidate with, or merge with and into,
any Acquiring Person or any Affiliate or Associate of an Acquiring
Person;
(B) any Acquiring Person or any Affiliate or Associate of an
Acquiring Person shall merge with and into the Company and, in
connection with such merger, all or part of the Common Shares shall be
changed into or exchanged for capital stock or other securities of the
Company or of any Acquiring Person or Affiliate or Associate of an
Acquiring Person or cash or any other property; or
(C) the Company shall sell, lease, exchange or otherwise transfer
or dispose of (or one or more of its Subsidiaries shall sell, lease,
exchange or otherwise transfer or dispose of), in one or more
transactions, the Major Part of the assets of the Company and its
Subsidiaries (taken as a whole) to any Acquiring Person or any
Affiliate or Associate of an Acquiring Person,
then, in each such case, proper provision shall be made so that each holder
of a Right, except as provided in Section 7(e), shall thereafter have the
right to receive, upon the exercise thereof for the Purchase Price in
accordance with the terms of this Rights Agreement, the securities
specified below (or, at such holder's option, the securities specified in
Section 11(a)):
(1) if the Principal Party in such Business Combination has
Registered Common Shares outstanding, each Right shall thereafter
represent the right to receive, upon the exercise thereof for the
Purchase Price in accordance with the terms of this Rights Agreement,
such number of Registered Common Shares of such Principal Party, free
and clear of all liens, encumbrances or other adverse claims, as shall
have an aggregate Market Value as of the time of exercise thereof
equal to the result obtained by multiplying the Purchase Price by two;
(2) if the Principal Party involved in such Business Combination
does not have Registered Common Shares outstanding, each Right shall
thereafter represent the right to receive, upon the exercise thereof
for the Purchase Price in accordance with the terms of this Rights
Agreement, at the election of the holder of such Right at the time of
the exercise thereof, any of:
(x) such number of Common Shares of the Surviving Person in
such Business Combination as shall have an aggregate Book Value
immediately after giving effect to such Business Combination
equal to the result obtained by multiplying the Purchase Price by
two;
(y) such number of Common Shares of the Principal Party in
such Business Combination (if the Principal Party is not also the
Surviving Person in such Business Combination) as shall have an
aggregate Book Value immediately after giving effect to such
Business Combination equal to the result obtained by multiplying
the Purchase Price by two; or
<PAGE>
(z) if the Principal Party in such Business Combination is
an Affiliate of one or more Persons that has Registered Common
Shares outstanding, such number of Registered Common Shares of
whichever of such Affiliates of the Principal Party has
Registered Common Shares with the greatest aggregate Market Value
on the date of consummation of such Business Combination as shall
have an aggregate Market Value on the date of such Business
Combination equal to the result obtained by multiplying the
Purchase Price by two.
(ii) The Company shall not consummate any Business Combination
unless each issuer of Common Shares for which Rights may be exercised, as
set forth in this Section 11(c), shall have sufficient authorized Common
Shares that have not been issued or reserved for issuance (and which shall,
when issued upon exercise thereof in accordance with this Rights Agreement,
be validly issued, fully paid and nonassessable and free of preemptive
rights, rights of first refusal or any other restrictions or limitations on
the transfer or ownership thereof) to permit the exercise in full of the
Rights in accordance with this Section 11(c) and unless prior thereto:
(A) a registration statement under the Securities Act on an
appropriate form, with respect to the Rights and the Common Shares of
such issuer purchasable upon exercise of the Rights, shall be
effective under the Securities Act; and
(B) the Company and each such issuer shall have:
(1) executed and delivered to the Rights Agent a
supplemental agreement providing for the assumption by such
issuer of the obligations set forth in this Section 11(c)
(including the obligation of such issuer to issue Common Shares
upon the exercise of Rights in accordance with the terms set
forth in Sections 11(c)(i) and 11(c)(iii)) and further providing
that such issuer, at its own expense, shall use its best efforts
to:
(x) cause a registration statement under the Securities
Act on an appropriate form, with respect to the Rights and
the Common Shares of such issuer purchasable upon exercise
of the Rights, to remain effective (with a prospectus at all
times meeting the requirements of the Securities Act) until
the Expiration Date;
(y) qualify or register the Rights and the Common
Shares of such issuer purchasable upon exercise of the
Rights under the blue sky or securities laws of such
jurisdictions as may be necessary or appropriate; and
(z) list the Rights and the Common Shares of such
issuer purchasable upon exercise of the Rights on each
national securities exchange on which the Common Shares were
listed prior to the consummation of the Business Combination
or, if the Common Shares were not listed on a national
securities exchange prior to the consummation of the
Business Combination, on a national securities exchange;
<PAGE>
(2) furnished to the Rights Agent a written opinion of
independent counsel stating that such supplemental agreement is a
valid, binding and enforceable agreement of such issuer; and
(3) filed with the Rights Agent a certificate of a
nationally recognized firm of independent accountants setting
forth the number of Common Shares of such issuer that may be
purchased upon the exercise of each Right after the consummation
of such Business Combination.
(iii) After consummation of any Business Combination and subject
to the provisions of Section 11(c)(ii), (A) each issuer of Common Shares
for which Rights may be exercised as set forth in this Section 11(c) shall
be liable for, and shall assume, by virtue of such Business Combination,
all the obligations and duties of the Company pursuant to this Rights
Agreement, (B) the term "Company" shall thereafter be deemed to refer to
such issuer, (C) each such issuer shall take such steps in connection with
such consummation as may be necessary to assure that the provisions hereof
(including the provisions of Sections 11(a) and 11(c)) shall thereafter be
applicable, as nearly as reasonably may be, in relation to its Common
Shares thereafter deliverable upon the exercise of the Rights, and (D) the
number of Common Shares of each such issuer thereafter receivable upon
exercise of any Right shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions
of Sections 11 and 12 and the provisions of Section 7, 9 and 10 with
respect to the Preferred Shares shall apply, as nearly as reasonably may
be, on like terms to any such Common Shares.
SECTION 12. Certain Adjustments. (a) To preserve the actual or
potential economic value of the Rights, if at any time after the date of
this Rights Agreement there shall be any change in the Common Shares or the
Preferred Shares, whether by reason of stock dividends, stock splits,
recapitalizations, mergers, consolidations, combinations or exchanges of
securities, split-ups, split-offs, spin-offs, liquidations, other similar
changes in capitalization, any distribution or issuance of cash, assets,
evidences of indebtedness or subscription rights, options or warrants to
holders of Common Shares or Preferred Shares, as the case may be (other
than distribution of the Rights or regular quarterly cash dividends), or
otherwise, then, in each such event the Board of Directors of the Company
shall make such appropriate adjustments in the number of Preferred Shares
(or the number and kind of other securities) issuable upon exercise of each
Right, the Purchase Price and Redemption Price in effect at such time and
the number of Rights outstanding at such time (including the number of
Rights or fractional Rights associated with each Common Share) such that
following such adjustment such event shall not have had the effect of
reducing or limiting the benefits the holders of the Rights would have had
absent such event.
(b) If, as a result of an adjustment made pursuant to Section
12(a), the holder of any Right thereafter exercised shall become entitled
to receive any securities other than Preferred Shares, thereafter the
number of such securities so receivable upon exercise of any Right shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions of Sections 11 and 12 and the
provisions of Sections 7, 9 and 10 with respect to the Preferred Shares
shall apply, as nearly as reasonably may be, on like terms to any such
other securities.
(c) All Rights originally issued by the Company subsequent to any
adjustment made to the amount of Preferred Shares or other securities
relating to a Right shall evidence the right to purchase, for the Purchase
Price, the adjusted number and kind
<PAGE>
of securities purchasable from time to time hereunder upon exercise of the
Rights, all subject to further adjustment as provided herein.
(d) Irrespective of any adjustment or change in the Purchase
Price or the number of Preferred Shares or number or kind of other
securities issuable upon the exercise of the Rights, the Right Certificates
theretofore and thereafter issued may continue to express the terms that
were expressed in the initial Right Certificates issued hereunder.
(e) In any case in which action taken pursuant to Section 12(a)
requires that an adjustment be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of
such event the issuing to the holder of any Right exercised after such
record date the Preferred Shares and/or other securities, if any, issuable
upon such exercise over and above the Preferred Shares and/or other
securities, if any, issuable before giving effect to such adjustment;
provided, however, that the Company shall deliver to such holder a due bill
or other appropriate instrument evidencing such holder's right to receive
such additional securities upon the occurrence of the event requiring such
adjustment.
SECTION 13. Certificate of Adjustment. Whenever an adjustment is
made as provided in Section 11 or 12, the Company shall (a) promptly
prepare a certificate setting forth such adjustment and a brief statement
of the facts accounting for such adjustment, (b) promptly file with the
Rights Agent and with each transfer agent for the Preferred Shares a copy
of such certificate and (c) mail a brief summary thereof to each holder of
a Right Certificate (or, prior to the Distribution Date, of the Common
Shares) in accordance with Section 25. The Rights Agent shall be fully
protected in relying on any such certificate and on any adjustment therein
contained and shall have no duty with respect to and shall not be deemed to
have knowledge of any such adjustment unless and until it shall have
received such certificate.
SECTION 14. Additional Covenants. (a) Notwithstanding any other
provision of this Rights Agreement, no adjustment to the number of
Preferred Shares (or fractions of a share) or other securities for which a
Right is exercisable or the number of Rights outstanding or associated with
each Common Share or any similar or other adjustment shall be made or be
effective if such adjustment would have the effect of reducing or limiting
the benefits the holders of the Rights would have had absent such
adjustment, including the benefits under Sections 11 and 12, unless the
terms of this Rights Agreement are amended so as to preserve such benefits.
(b) The Company covenants and agrees that, after the Distribution
Date, except as permitted by Section 26, it shall not take (or permit any
Subsidiary of the Company to take) any action if at the time such action is
taken it is intended or reasonably foreseeable that such action will reduce
or otherwise limit the benefits the holders of the Rights would have had
absent such action, including the benefits under Sections 11 and 12. Any
action taken by the Company during any period after any Person becomes an
Acquiring Person but prior to the Distribution Date shall be null and void
unless such action could be taken under this Section 14(b) from and after
the Distribution Date. The Company shall not consummate any Business
Combination if any issuer of Common Shares for which Rights may be
exercised after such Business Combination in accordance with Section 11(c)
shall have taken any action that reduces or otherwise limits the benefits
the holders of the Rights would have had absent such action, including the
benefits under Sections 11 and 12.
<PAGE>
SECTION 15. Fractional Rights and Fractional Shares. (a) The
Company may, but shall not be required to, issue fractions of Rights or
distribute Right Certificates which evidence fractional Rights. In lieu of
such fractional Rights, the Company may pay to the registered holders of
the Right Certificates with regard to which such fractional Rights would
otherwise be issuable an amount in cash equal to the same fraction of the
current market value of a whole Right. For purposes of this Section 15(a),
the current market value of a whole Right shall be the closing price of the
Rights (as determined pursuant to the second and third sentences of the
definition of Market Value contained in Section 1) for the Trading Day
immediately prior to the date on which such fractional Rights would have
been otherwise issuable.
(b) The Company may, but shall not be required to, issue
fractions of Preferred Shares upon exercise of the Rights or distribute
certificates that evidence fractional Preferred Shares. In lieu of
fractional Preferred Shares, the Company may elect to (i) utilize a
depository arrangement as provided by the terms of the Preferred Shares or
(ii) in the case of a fraction of a Preferred Share (other than one
one-thousandth (1/1,000) of a Preferred Share or any integral multiple
thereof), pay to the registered holders of Right Certificates at the time
such Rights are exercised as herein provided an amount in cash equal to the
same fraction of the current market value of one Preferred Share, if any
are outstanding and publicly traded (or the Formula Number times the
current market value of one Common Share if the Preferred Shares are not
outstanding and publicly traded). For purposes of this Section 15(b), the
current market value of a Preferred Share (or Common Share) shall be the
closing price of a Preferred Share (or Common Share) (as determined
pursuant to the second and third sentences of the definition of Market
Value contained in Section 1) for the Trading Day immediately prior to the
date of such exercise. If, as a result of an adjustment made pursuant to
Section 12(a), the holder of any Right thereafter exercised shall become
entitled to receive any securities other than Preferred Shares, the
provisions of this Section 15(b) shall apply, as nearly as reasonably may
be, on like terms to such other securities.
(c) The Company may, but shall not be required to, issue
fractions of Common Shares upon exchange of Rights pursuant to Section
11(b), or to distribute certificates that evidence fractional Common
Shares. In lieu of such fractional Common Shares, the Company may pay to
the registered holders of the Right Certificates with regard to which such
fractional Common Shares would otherwise be issuable an amount in cash
equal to the same fraction of the current Market Value of one Common Share
as of the date on which a Person became an Acquiring Person.
(d) The holder of Rights 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 provided in this
Section 15.
SECTION 16. Rights of Action. (a) All rights of action in respect
of this Rights Agreement, except the rights of action given to the Rights
Agent under this Rights Agreement, are vested in the respective registered
holders of the Right Certificates (and, prior to the Distribution Date, the
registered holders of the Common Shares); and any registered holder of any
Right Certificate (or, prior to the Distribution Date, of the Common
Shares), without the consent of the Rights Agent or of the holder of any
other Right Certificate (or, prior to the Distribution Date, of the Common
Shares) may, in his own behalf and for his own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
to enforce, or otherwise act in respect of, his right to exercise the
Rights evidenced by such Right Certificate in the manner provided in such
Right
<PAGE>
Certificate and in this Rights 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 Rights Agreement and shall be entitled to
specific performance of the obligations of any Person under, and injunctive
relief against actual or threatened violations of the obligations of any
Person subject to, this Rights Agreement.
(b) Any holder of Rights who prevails in an action to enforce the
provisions of this Rights Agreement shall be entitled to recover the
reasonable costs and expenses, including attorneys' fees, incurred in such
action.
SECTION 17. Transfer and Ownership of Rights and Right
Certificates. (a) Prior to the Distribution Date, the Rights shall be
transferable only in connection with the transfer of the Common Shares and
the Right associated with each Common Share shall be automatically
transferred upon the transfer of each Common Share.
(b) After the Distribution Date, the Right Certificates shall be
transferable, subject to Section 7(e), only on the registry books of the
Rights Agent if surrendered at the office of the Rights Agent in the United
States designated for such purpose, duly endorsed or accompanied by a
proper instrument of transfer.
(c) The Company and the Rights Agent may deem and treat the
Person in whose name a Right Certificate (or, prior to the Distribution
Date, the associated Common Shares certificate) is registered as the
absolute owner thereof and of the Rights evidenced thereby (notwithstanding
any notations of ownership or writing on the Right Certificates or the
associated certificate for Common Shares made by anyone other than the
Company or the Rights Agent) for all purposes whatsoever, and neither the
Company nor the Rights Agent shall be affected by any notice to the
contrary.
SECTION 18. Right Certificate Holder Not Deemed a Stockholder. No
holder, as such, of any Right Certificate shall be entitled to vote or
receive dividends or be deemed, for any purpose, the holder of the
Preferred Shares or of any other securities of the Company which may at any
time be issuable on the exercise of the Rights represented thereby, nor
shall anything contained herein or in any Right Certificate be construed to
confer upon the holder of any Right Certificate, as such, any of the rights
of a stockholder of the Company, including any right to vote for the
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or
to receive notice of meetings or other actions affecting stockholders, or
to receive dividends or other distributions or subscription rights, or
otherwise, until the Right or Rights evidenced by such Right Certificate
shall have been exercised in accordance with the provisions hereof.
SECTION 19. 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 other disbursements
incurred in the administration, preparation, delivery, amendment (if any)
and execution of this Rights Agreement and the exercise and performance of
its duties hereunder, including any taxes or governmental charges imposed
as a result of the action taken by it hereunder (other than any taxes on
the fees payable to it).
<PAGE>
(b) The Rights Agent shall be authorized and 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 Rights
Agreement in reliance upon any Right Certificate or certificate for the
Common Shares or for other securities of the Company, instrument of
assignment or transfer, power of attorney, endorsement, affidavit, letter,
notice, direction, consent, certificate, statement, or other paper or
document believed by it to be genuine and to be signed, executed and, where
necessary, verified or acknowledged, by the proper Person or Persons, or
otherwise in good faith and upon the written advice or opinion of counsel
as set forth in Section 21.
SECTION 20. Merger or Consolidation or Change of Rights Agent.
(a) Any Person 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 Person succeeding to the
stock transfer or corporate trust business of the Rights Agent or any
successor Rights Agent, shall be the successor to the Rights Agent under
this Rights Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto; provided that such
Person would be eligible for appointment as a successor Rights Agent under
the provisions of Section 22. In case, at the time such successor Rights
Agent shall succeed to the agency created by this Rights Agreement, any of
the Right Certificates shall have been countersigned but not delivered, any
such successor Rights Agent may adopt the countersignature of the
predecessor Rights Agent and deliver such Right Certificates so
countersigned; and, in case at that time any of the Right Certificates
shall not have been countersigned, any successor Rights Agent may
countersign such Right Certificates either in the name of the predecessor
Rights Agent or in the name of the successor Rights Agent; and in all such
cases such Right Certificates shall have the full force provided in the
Right Certificates and in this Rights Agreement.
(b) In case at any time the name of the Rights Agent shall be
changed and at such time any of the Right Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Right Certificates so
countersigned; and, in case at that time any of the Right Certificates
shall not have been countersigned, the Rights Agent may countersign such
Right Certificates either in its prior name or in its changed name; and in
all such cases such Right Certificates shall have the full force provided
in the Right Certificates and in this Rights Agreement.
SECTION 21. Duties of Rights Agent. The Rights Agent undertakes
the duties and obligations imposed by this Rights Agreement upon the
following terms and conditions, by all of which the Company and the holders
of Right Certificates (or, prior to the Distribution Date, of the Common
Shares), 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 written advice or opinion of such
counsel shall be full and complete authorization and protection to the
Rights Agent as to any action taken, suffered or omitted by it in good
faith and in accordance with such written advice or opinion.
(b) Whenever in the performance of its duties under this Rights
Agreement the Rights Agent shall deem it necessary or desirable that any
fact or matter (including, without limitation, the identity of any
Acquiring Person and the determination of current per share market price of
the Common Stock) be proved or established by the Company prior
<PAGE>
to taking, refraining from taking or suffering any action hereunder, such
fact or matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved and
established by a certificate signed by any one of the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, any Vice President (whether preceded
by any additional title), the Treasurer or the Secretary of the Company and
delivered to the Rights Agent; and such certificate shall be full
authorization to the Rights Agent for any action taken, suffered or omitted
in good faith by it under the provisions of this Rights Agreement in
reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its own
negligence, bad faith or wilful misconduct; provided, however, that in no
event shall the Rights Agent be liable for special, punitive, indirect,
consequential or incidental loss or damage of any kind whatsoever
(including, but not limited to, lost profits), even if the Rights Agent has
been advised of the likelihood of such loss or damage.
(d) The Rights Agent shall not be liable for or by reason of any
of the statements of fact or recitals contained in this Rights Agreement or
in the Right Certificates (except as to its countersignature thereof) or be
required to verify the same, but all such statements and recitals are and
shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Rights Agreement or the execution and
delivery hereof (except the due execution hereof by the Rights Agent) or in
respect of the validity or execution of any Right Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by
the Company of any covenant or condition contained in this Rights Agreement
or in any Right Certificate; nor shall it be responsible for any adjustment
required under the provisions of Section 11 or 12 or responsible for the
manner, method or amount of any such adjustment or the ascertaining of the
existence of facts that would require any such adjustment (except with
respect to the exercise of Rights evidenced by Right Certificates after
actual notice 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 Preferred Shares or Common Shares to be issued pursuant
to this Rights Agreement or any Right Certificate or as to whether any
Preferred Shares or Common Shares will, when so issued, be validly
authorized and issued, fully paid and nonassessable.
(f) The Company agrees that it shall 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 Rights Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
any one of the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Operating Officer, any Vice President (whether
preceded by any additional title), the Secretary or the Treasurer of the
Company, and to apply to such officers for advice or instructions in
connection with its duties and it shall not be liable for any action taken,
suffered or omitted to be taken by it in good faith in accordance with
instructions of any such officer.
<PAGE>
(h) The Rights Agent and any stockholder, director, affiliate,
officer or employee of the Rights Agent may buy, sell or deal in any of the
Rights or other securities of the Company or become pecuniarily interested
in any transaction in which the Company may be interested, or contract with
or lend money to the Company or otherwise act as fully and freely as though
it were not the Rights Agent under this Rights Agreement. Nothing herein
shall preclude the Rights Agent from acting in any other capacity for the
Company or for any other Person.
(i) The Rights Agent may execute and exercise any of the rights
or powers hereby vested in it or perform any duty hereunder either itself
or by or through its attorneys or agents, and the Rights Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of
any such attorneys or agents or for any loss to the Company resulting from
any such act, default, neglect or misconduct provided reasonable care was
exercised in the selection and continued employment thereof.
(j) The Company agrees to indemnify and to hold the Rights Agent
harmless against any loss, liability, damage, judgment, fine, penalty,
claim, demand, settlement, cost or expense (including reasonable fees and
expenses of legal counsel) which the Rights Agent may incur resulting from
its actions taken, suffered or omitted by it pursuant to this Rights
Agreement; provided, however, that the Rights Agent shall not be
indemnified or held harmless with respect to any such loss, liability,
damage, judgment, fine, penalty, claim, demand, settlement, cost or expense
incurred by the Rights Agent as a result of, or arising out of, its own
negligence, bad faith or wilful misconduct. In no case shall the Company be
liable with respect to any action, proceeding, suit or claim against the
Rights Agent unless the Rights Agent shall have notified the Company, by
letter or by facsimile confirmed by letter, of the assertion of any action,
proceeding, suit or claim against the Rights Agent, promptly after the
Rights Agent shall have notice of any such assertion of an action,
proceeding, suit or claim or have been served with the summons or other
first legal process giving information as to the nature and basis of the
action, proceeding, suit or claim; provided, however, that any delay by the
Rights Agent in delivering such written notice to the Company shall not
release the Company from its obligation to provide the indemnification
hereunder except to the extent the Company is prejudiced as a result of
such delay. The Company shall be entitled to participate at its own expense
in the defense of any such action, proceeding, suit or claim, and, if the
Company so elects, the Company shall assume the defense of any such action,
proceeding, suit or claim. In the event that the Company assumes such
defense, the Company shall not thereafter be liable for the fees and
expenses of any additional counsel retained by the Rights Agent, so long as
the Company shall retain counsel satisfactory to the Rights Agent, in the
exercise of its reasonable judgment, to defend such action, proceeding,
suit or claim; provided, however, that if in the written, reasonable
judgment of counsel for the Rights Agent or the Company the use of such
counsel retained by the Company to represent both the Company and the
Rights Agent would present a conflict of interest, then the Rights Agent
shall be permitted to retain one additional counsel the reasonable fees and
expenses of which shall be payable by the Company. The Rights Agent agrees
not to settle any litigation in connection with any action, proceeding,
suit or claim with respect to which it may seek indemnification from the
Company without the prior written consent of the Company, which consent
shall not be unreasonably withheld.
(k) The Rights Agent shall be under no obligation to institute
any action, suit or legal proceeding or to take any other action which
involves or is likely to involve expense or financial liability unless the
Company or one or more registered holders of Right
<PAGE>
Certificates shall furnish the Rights Agent with security and indemnity to
the Rights Agent's satisfaction for any costs and expenses which may be
incurred.
SECTION 22. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under
this Rights Agreement upon 30 days' notice in writing mailed to the Company
and to each transfer agent of the Common Shares and the Preferred Shares by
registered or certified mail, and to the holders of the Right Certificates
(or, prior to the Distribution Date, of the Common Shares) by first-class
mail. The Company may remove the Rights Agent or any successor Rights Agent
(x) upon 30 days' notice in writing, mailed to the Rights Agent or
successor Rights Agent, as the case may be, and to each transfer agent of
the Common Shares and the Preferred Shares by registered or certified mail,
and to the holders of the Right Certificates (or, prior to the Distribution
Date, of the Common Shares) by first-class mail or (y) immediately, upon
notice, if the Rights Agent or any successor Rights Agent refuses to
consent to any amendment or supplement that is the subject of clause (ii)
of the fourth sentence of Section 26. If the Rights Agent shall resign or
be removed or shall otherwise become incapable of acting, the Company shall
appoint a successor to the Rights Agent. If the Company shall fail to make
such appointment within a period of 30 days after giving notice of such
removal or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or by the holder
of a Right Certificate (or, prior to the Distribution Date, of the Common
Shares) (who shall, with such notice, submit his Right Certificate or,
prior to the Distribution Date, the certificate representing his Common
Shares, for inspection by the Company), then the registered holder of any
Right Certificate (or, prior to the Distribution Date, of the Common
Shares) 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 Person organized
and doing business under the laws of the United States or of the State of
New York (or of any other state of the United States so long as such
corporation is authorized to conduct a stock transfer or corporate trust
business in the State of New York), in good standing, having a principal
office in the State of New York, which is authorized under such laws to
exercise stock transfer or 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; provided that the principal transfer agent for the
Common Shares shall in any event be qualified to be the Rights Agent. 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 Shares and the Preferred Shares, and mail a
notice thereof in writing to the registered holders of the Right
Certificates (or, prior to the Distribution Date, of the Common Shares).
Failure to give any notice provided for in this Section 22, however, or any
defect therein shall not affect the legality or validity of the resignation
or removal of the Rights Agent or the appointment of the successor Rights
Agent, as the case may be.
SECTION 23. Issuance of Additional Rights and Right Certificates.
Notwithstanding any of the provisions of this Rights Agreement or of the
Rights to the contrary, the Company may, at its option, issue new Right
Certificates evidencing Rights in
<PAGE>
such form as may be approved by its Board of Directors to reflect any
adjustment or change made in accordance with the provisions of this Rights
Agreement. In addition, in connection with the issuance or sale of Common
Shares following the Distribution Date and prior to the earlier of the
Redemption Date and the Expiration Date, the Company (a) shall, with
respect to Common Shares so issued or sold pursuant to the exercise of
stock options or under any employee plan or arrangement, or upon the
exercise, conversion or exchange of securities, notes or debentures 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 Right
Certificates representing the appropriate number of Rights in connection
with such issuance or sale; provided, however, that (i) no such Right
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
Right Certificate would be issued, (ii) no such Right Certificate shall be
issued if, and to the extent that, appropriate adjustment shall otherwise
have been made in lieu of the issuance thereof and (iii) no such Right
Certificate shall be issued to an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
SECTION 24. Redemption and Termination. (a) The Board of
Directors of the Company may, at its option, at any time prior to the
earlier of (i) such time as a Person becomes an Acquiring Person and (ii)
the Expiration Date, order the redemption of all, but not fewer than all,
the then outstanding Rights at the Redemption Price (the date of such
redemption being the "Redemption Date"), and the Company, at its option,
may pay the Redemption Price either in cash or Common Shares or other
securities of the Company deemed by the Board of Directors of the Company,
in the exercise of its sole discretion, to be at least equivalent in value
to the Redemption Price.
(b) Immediately upon the action of the Board of Directors of the
Company ordering the redemption of the Rights, and without any further
action and without any notice, the right to exercise the Rights will
terminate and the only right thereafter of the holders of Rights shall be
to receive the Redemption Price. Within 10 Business Days after the action
of the Board of Directors of the Company ordering the redemption of the
Rights, the Company shall give notice of such redemption to the Rights
Agent and to the holders of the then outstanding Rights by mailing such
notice to all such holders at their last addresses as they appear upon the
registry books of the Rights Agent or, prior to the Distribution Date, on
the registry books of the transfer agent for the Common Shares. Each such
notice of redemption shall state the method by which payment of the
Redemption Price will be made. The notice, if mailed in the manner herein
provided, shall be conclusively presumed to have been duly given, whether
or not the holder of Rights receives such notice. In any case, failure to
give such notice by mail, or any defect in the notice, to any particular
holder of Rights shall not affect the sufficiency of the notice to other
holders of Rights.
SECTION 25. Notices. Notices or demands authorized by this Rights
Agreement to be given or made by the Rights Agent or by the holder of a
Right Certificate (or, prior to the Distribution Date, of the Common
Shares) to or on the Company shall be
<PAGE>
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:
Milacron Inc.
4701 Marburg Avenue
Cincinnati, Ohio 45209-1025
Attention: General Counsel
Subject to the provisions of Section 22, any notice or demand authorized by
this Rights Agreement to be given or made by the Company or by the holder
of a Right Certificate (or, prior to the Distribution Date, of the Common
Shares) 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:
ChaseMellon Shareholder Services, L.L.C.
Suite 301
4 Station Square
Commerce Court
Pittsburgh, Pennsylvania 15219
Attention: Jerry Curtin
Notices or demands authorized by this Rights Agreement to be given or made
by the Company or the Rights Agent to any holder of a Right Certificate
(or, prior to the Distribution Date, of the Common Shares) shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the
registry books of the Rights Agent or, prior to the Distribution Date, on
the registry books of the transfer agent for the Common Shares.
SECTION 26. Supplements and Amendments. At any time prior to the
Distribution Date and subject to the last sentence of this Section 26, the
Company may, and the Rights Agent shall if the Company so directs,
supplement or amend any provision of this Rights Agreement (including,
without limitation, the date on which the Distribution Date shall occur,
the definition of "Acquiring Person", the time during which the Rights may
be redeemed pursuant to Section 24 or any provision of the Certificate of
Designation) without the approval of any holder of the Rights. From and
after the Distribution Date, and subject to applicable law, the Company
may, and the Rights Agent shall if the Company so directs, amend this
Rights Agreement without the approval of any holders of Right Certificates
(a) to cure any ambiguity or to correct or supplement any provision
contained herein which may be defective or inconsistent with any other
provision of this Rights Agreement or (b) to make any other provisions in
regard to matters or questions arising hereunder which the Company may deem
necessary or desirable and which shall not adversely affect the interests
of the holders of Right Certificates (other than an Acquiring Person or an
Affiliate or Associate of an Acquiring Person). Any supplement or amendment
adopted during any period after any Person has become an Acquiring Person
but prior to the Distribution Date shall be null and void unless such
supplement or amendment could have been adopted under the prior sentence
from and after the Distribution Date. Any supplement or amendment to this
Rights Agreement duly approved by the Company that (i) amends Sections 19,
20, 21 or 22 in a manner adverse to the Rights Agent, shall require the
prior written consent of the Rights Agent or (ii) otherwise changes or
increases the Rights Agent's duties, liabilities or obligations hereunder,
shall require the prior written consent of the Rights Agent, such consent
not to be unreasonably withheld, provided that in the case of this clause
(ii), if the
<PAGE>
Rights Agent fails to consent or refuses to consent to such amendment or
supplement within four Business Days after notice thereof by the Company,
the Rights Agent shall be deemed to have consented to such amendment or
supplement. Any other amendment or supplement to this Rights Agreement duly
approved by the Company shall become effective immediately upon execution
by the Company, whether or not also executed by the Rights Agent. In
addition, notwithstanding anything to the contrary contained in this Rights
Agreement, no supplement or amendment to this Rights Agreement shall be
made which reduces the Redemption Price (except as required by Section
12(a)).
SECTION 27. Successors. All the covenants and provisions of this
Rights 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 28. Benefits of Rights Agreement; Determinations and
Actions by the Board of Directors, Etc. (a) Nothing in this Rights
Agreement shall be construed to give to any Person other than the Company,
the Rights Agent and the registered holders of the Right Certificates (and,
prior to the Distribution Date, of the Common Shares) any legal or
equitable right, remedy or claim under this Rights Agreement; but this
Rights Agreement shall be for the sole and exclusive benefit of the
Company, the Rights Agent and the registered holders of the Right
Certificates (and, prior to the Distribution Date, of the Common Shares).
(b) Except as explicitly otherwise provided in this Rights
Agreement, the Board of Directors of the Company shall have the exclusive
power and authority to administer this Rights Agreement and to exercise all
rights and powers specifically granted to the Board of Directors of the
Company or to the Company, or as may be necessary or advisable in the
administration of this Rights Agreement, including the right and power to
(i) interpret the provisions of this Rights Agreement and (ii) make all
determinations deemed necessary or advisable for the administration of this
Rights Agreement (including a determination to redeem or not redeem the
Rights or to amend this Rights Agreement and a determination of whether
there is an Acquiring Person).
(c) Nothing contained in this Rights Agreement shall be deemed to
be in derogation of the obligation of the Board of Directors of the Company
to exercise its fiduciary duty. Without limiting the foregoing, nothing
contained herein shall be construed to suggest or imply that the Board of
Directors shall not be entitled to reject any tender offer or other
acquisition proposal, or to recommend that holders of Common Shares reject
any tender offer, or to take any other action (including the commencement,
prosecution, defense or settlement of any litigation and the submission of
additional or alternative offers or other proposals) with respect to any
tender offer or other acquisition proposal that the Board of Directors
believes is necessary or appropriate in the exercise of such fiduciary
duty.
SECTION 29. Severability. If any term, provision, covenant or
restriction of this Rights 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
Rights Agreement shall remain in full force and effect and shall in no way
be affected, impaired or invalidated.
SECTION 30. Governing Law. This Rights Agreement and each Right
Certificate issued hereunder shall be deemed to be a contract made under
the law of the State of Delaware and for all purposes shall be governed by
and construed in accordance with the
<PAGE>
law of such State applicable to contracts to be made and performed entirely
within such State.
SECTION 31. Counterparts; Effectiveness. This Rights 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.
This Rights Agreement shall be effective as of the Close of Business on the
date hereof.
SECTION 32. Descriptive Headings. Descriptive headings of the
several Sections of this Rights Agreement are inserted for convenience only
and shall not control or affect the meaning or construction of any of the
provisions of this Rights Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Rights
Agreement to be duly executed as of the day and year first above written.
MILACRON INC.,
by /s/ Ronald D. Brown
--------------------------
Name: Ronald D. Brown
Title: Senior Vice President and
Chief Financial Officer
CHASEMELLON
SHAREHOLDER SERVICES,
L.L.C.,
by /s/ J. D. Curtin
---------------------------
Name: J. D. Curtin
Title: Assistant Vice President
<PAGE>
EXHIBIT A
CERTIFICATE OF THE VOTING POWERS,
DESIGNATIONS, PREFERENCES AND RELATIVE
PARTICIPATING, OPTIONAL AND OTHER SPECIAL
RIGHTS AND QUALIFICATIONS, LIMITATIONS
OR RESTRICTIONS OF SERIES A
PARTICIPATING CUMULATIVE
PREFERRED STOCK OF
MILACRON INC.
Pursuant to Section 151 of the General Corporation Law of the
State of Delaware, Milacron Inc. (the "Company"), a corporation organized
and existing under the General Corporation Law of the State of Delaware,
in accordance with the provisions of Section 103 thereof, DOES HEREBY
CERTIFY:
That, pursuant to the authority conferred upon the Board of
Directors of the Company by Article FOURTH of the Restated Certificate of
Incorporation of the Company (the "Restated Certificate of
Incorporation"), the Board of Directors of the Company on February 5,
1999, adopted the following resolution creating a series of Preferred
Stock designated as Series A Participating Cumulative Preferred Stock:
RESOLVED, that, pursuant to the authority vested in the Board of
Directors of the Company in accordance with the provisions of the
Restated Certificate of Incorporation of the Company, a series of
Preferred Stock of the Company is hereby created and that the
designation and number of shares thereof and the voting powers,
preferences and relative, participating, optional and other special
rights of the shares of such series, and the qualifications,
limitations or restrictions thereof are as follows:
SECTION 1. Designation and Number of Shares. The shares of such
series shall be designated as "Series A Participating Cumulative Preferred
Stock" (the "Series A Preferred Stock"). The number of shares initially
constituting the Series A Preferred Stock shall be 300,000; provided,
however, that, if more than a total of 300,000 shares of Series A
Preferred Stock shall be issuable upon the exercise of Rights (the
"Rights") issued pursuant to the Rights Agreement dated as of February 5,
1999, between the Company and ChaseMellon Shareholder Services, L.L.C., a
New Jersey limited liability company, as Rights Agent (the "Rights
Agreement"), the Board of Directors of the Company, pursuant to Section
151(g) of the General Corporation Law of the State of Delaware, shall
direct by resolution or resolutions that a certificate be properly
executed, acknowledged, filed and recorded, in accordance with the
provisions of Section 103 thereof, providing for the total number of
shares of Series A Preferred Stock authorized to be issued to be increased
(to the extent that the Restated Certificate of Incorporation then
permits) to the largest number of whole shares (rounded up to the nearest
whole number) issuable upon exercise of such Rights.
SECTION 2. Dividends or Distributions. (a) Subject to the prior
and superior rights of the holders of shares of any other series of
Preferred Stock or other class of capital stock of the Company ranking
prior and superior to the shares of Series A Preferred Stock with respect
to dividends, the holders of shares of the Series A Preferred Stock shall
be entitled to receive, when, as and if declared by the Board of
Directors, out of the assets of the Company legally available therefor,
(1) quarterly dividends payable in cash on the last day of each fiscal
quarter in each year, or such other dates as the Board of Directors of the
<PAGE>
Company shall approve (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or a fraction of
a share of Series A Preferred Stock, in the amount of $.01 per whole share
(rounded to the nearest cent) less the amount of all cash dividends
declared on the Series A Preferred Stock pursuant to the following clause
(2) since the immediately preceding Quarterly Dividend Payment Date or,
with respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A Preferred Stock
(the total of which shall not, in any event, be less than zero) and (2)
dividends payable in cash on the payment date for each cash dividend
declared on the Common Stock in an amount per whole share (rounded to the
nearest cent) equal to the Formula Number (as hereinafter defined) then in
effect times the cash dividends then to be paid on each share of Common
Stock. In addition, if the Company shall pay any dividend or make any
distribution on the Common Stock payable in assets, securities or other
forms of noncash consideration (other than dividends or distributions
solely in shares of Common Stock), then, in each such case, the Company
shall simultaneously pay or make on each outstanding whole share of Series
A Preferred Stock a dividend or distribution in like kind equal to the
Formula Number then in effect times such dividend or distribution on each
share of the Common Stock. As used herein, the "Formula Number" shall be
1,000; provided, however, that, if at any time after February 5, 1999, the
Company shall (i) declare or pay any dividend on the Common Stock payable
in shares of Common Stock or make any distribution on the Common Stock in
shares of Common Stock, (ii) subdivide (by a stock split or otherwise) the
outstanding shares of Common Stock into a larger number of shares of
Common Stock or (iii) combine (by a reverse stock split or otherwise) the
outstanding shares of Common Stock into a smaller number of shares of
Common Stock, then in each such event the Formula Number shall be adjusted
to a number determined by multiplying the Formula Number in effect
immediately prior to such event by a fraction, the numerator of which is
the number of shares of Common Stock that are outstanding immediately
after such event and the denominator of which is the number of shares of
Common Stock that are outstanding immediately prior to such event (and
rounding the result to the nearest whole number); and provided further
that, if at any time after February 5, 1999 , the Company shall issue any
shares of its capital stock in a merger, reclassification, or change of
the outstanding shares of Common Stock, then in each such event the
Formula Number shall be appropriately adjusted to reflect such merger,
reclassification or change so that each share of Preferred Stock continues
to be the economic equivalent of a Formula Number of shares of Common
Stock prior to such merger, reclassification or change.
(b) The Company shall declare a dividend or distribution on the
Series A Preferred Stock as provided in Section 2(a) immediately prior to
or at the same time it declares a dividend or distribution on the Common
Stock (other than a dividend or distribution solely in shares of Common
Stock); provided, however, that, in the event no dividend or distribution
(other than a dividend or distribution in shares of Common Stock) shall
have been declared on the Common Stock during the period between any
Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $.01 per share on the Series A Preferred Stock
shall nevertheless be payable on such subsequent Quarterly Dividend
Payment Date. The Board of Directors may fix a record date for the
determination of holders of shares of Series A Preferred Stock entitled to
receive a dividend or distribution declared thereon, which record date
shall be the same as the record date for any corresponding dividend or
distribution on the Common Stock.
(c) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from and after the
Quarterly Dividend Payment Date next pre-
<PAGE>
ceding the date of original issue of such shares of Series A Preferred
Stock; provided, however, that dividends on such shares which are
originally issued after the record date for the determination of holders
of shares of Series A Preferred Stock entitled to receive a quarterly
dividend and on or prior to the next succeeding Quarterly Dividend Payment
Date shall begin to accrue and be cumulative from and after such Quarterly
Dividend Payment Date. Notwithstanding the foregoing, dividends on shares
of Series A Preferred Stock which are originally issued prior to the
record date for the determination of holders of shares of Series A
Preferred Stock entitled to receive a quarterly dividend on the first
Quarterly Dividend Payment Date shall be calculated as if cumulative from
and after the last day of the fiscal quarter next preceding the date of
original issuance of such shares. Accrued but unpaid dividends shall not
bear interest. Dividends paid on the shares of Series A Preferred Stock in
an amount less than the total amount of such dividends at the time accrued
and payable on such shares shall be allocated pro rata on a share-by-share
basis among all such shares at the time outstanding.
(d) So long as any shares of the Series A Preferred Stock are
outstanding, no dividends or other distributions shall be declared, paid
or distributed, or set aside for payment or distribution, on the Common
Stock unless, in each case, the dividend required by this Section 2 to be
declared on the Series A Preferred Stock shall have been declared.
(e) The holders of the shares of Series A Preferred Stock shall
not be entitled to receive any dividends or other distributions except as
provided herein.
SECTION 3. Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(a) Each holder of Series A Preferred Stock shall be entitled to
a number of votes equal to the Formula Number then in effect, for each
share of Series A Preferred Stock held of record on each matter on which
holders of the Common Stock or stockholders generally are entitled to
vote, multiplied by the maximum number of votes per share which any holder
of the Common Stock or stockholders generally then have with respect to
such matter (assuming any holding period or other requirement to vote a
greater number of shares is satisfied).
(b) Except as otherwise provided herein or by applicable law,
the holders of shares of Series A Preferred Stock and the holders of
shares of Common Stock shall vote together as one class for the election
of directors of the Company and on all other matters submitted to a vote
of stockholders of the Company.
(c) If, at the time of any annual meeting of stockholders for
the election of directors, the equivalent of six quarterly dividends
(whether or not consecutive) payable on any share or shares of Series A
Preferred Stock are in default, the number of directors constituting the
Board of Directors of the Company shall be increased by two. In addition
to voting together with the holders of Common Stock for the election of
other directors of the Company, the holders of record of the Series A
Preferred Stock, voting separately as a class to the exclusion of the
holders of Common Stock, shall be entitled at said meeting of stockholders
(and at each subsequent annual meeting of stockholders), unless all
dividends in arrears have been paid or declared and set apart for payment
prior thereto, to vote for the election of two directors of the Company,
the holders of any Series A Preferred Stock being entitled to cast a
number of votes per share of Series A Preferred Stock equal to the Formula
Number. Until the default in payments of all dividends which permitted the
election of said
<PAGE>
directors shall cease to exist, any director who shall have been so
elected pursuant to the next preceding sentence may be removed at any
time, either with or without cause, only by the affirmative vote of the
holders of the shares of Series A Preferred Stock at the time entitled to
cast a majority of the votes entitled to be cast for the election of any
such director at a special meeting of such holders called for that
purpose, and any vacancy thereby created may be filled by the vote of such
holders. If and when such default shall cease to exist, the holders of the
Series A Preferred Stock shall be divested of the foregoing special voting
rights, subject to revesting in the event of each and every subsequent
like default in payments of dividends. Upon the termination of the
foregoing special voting rights, the terms of office of all persons who
may have been elected directors pursuant to said special voting rights
shall forthwith terminate, and the number of directors constituting the
Board of Directors shall be reduced by two. The voting rights granted by
this Section 3(c) shall be in addition to any other voting rights granted
to the holders of the Series A Preferred Stock in this Section 3.
(d) Except as provided herein, in Section 11 or by applicable
law, holders of Series A Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the extent they
are entitled to vote with holders of Common Stock as set forth herein) for
authorizing or taking any corporate action.
SECTION 4. Certain Restrictions. (a) Whenever quarterly
dividends or other dividends or distributions payable on the Series A
Preferred Stock as provided in Section 2 are in arrears, thereafter and
until all accrued and unpaid dividends and distributions, whether or not
declared, on shares of Series A Preferred Stock outstanding shall have
been paid in full, the Company shall not:
(i) declare or pay dividends on, make any other distributions
on, or redeem or purchase or otherwise acquire for consideration any
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock;
(ii) declare or pay dividends on or make any other distributions
on any shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except dividends paid ratably on the Series A
Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A
Preferred Stock; provided that the Company may at any time redeem,
purchase or otherwise acquire shares of any such parity stock in
exchange for shares of any stock of the Company ranking junior
(either as to dividends or upon dissolution, liquidation or winding
up) to the Series A Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares
of Series A Preferred Stock, or any shares of stock ranking on a
parity with the Series A Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined by
the Board of Directors) to all holders of such shares upon such terms
as the Board of Directors, after consideration of the respective
<PAGE>
annual dividend rates and other relative rights and preferences of
the respective series and classes, shall determine in good faith will
result in fair and equitable treatment among the respective series or
classes.
(b) The Company shall not permit any subsidiary of the Company
to purchase or otherwise acquire for consideration any shares of stock of
the Company unless the Company could, under paragraph (a) of this Section
4, purchase or otherwise acquire such shares at such time and in such
manner.
SECTION 5. Liquidation Rights. Upon the liquidation, dissolution
or winding up of the Company, whether voluntary or involuntary, no
distribution shall be made (1) to the holders of shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding
up) to the Series A Preferred Stock unless, prior thereto, the holders of
shares of Series A Preferred Stock shall have received an amount equal to
the accrued and unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment, plus an amount equal to the greater
of (x) $.01 per whole share or (y) an aggregate amount per share equal to
the Formula Number then in effect times the aggregate amount to be
distributed per share to holders of Common Stock or (2) to the holders of
stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, except
distributions made ratably on the Series A Preferred Stock and all other
such parity stock in proportion to the total amounts to which the holders
of all such shares are entitled upon such liquidation, dissolution or
winding up.
SECTION 6. Consolidation, Merger, Etc. In case the Company shall
enter into any consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or changed into other
stock or securities, cash or any other property, then in any such case the
then outstanding shares of Series A Preferred Stock shall at the same time
be similarly exchanged or changed into an amount per share equal to the
Formula Number then in effect times the aggregate amount of stock,
securities, cash or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is exchanged or
changed. In the event both this Section 6 and Section 2 appear to apply to
a transaction, this Section 6 will control.
SECTION 7. No Redemption; No Sinking Fund. (a) The shares of
Series A Preferred Stock shall not be subject to redemption by the Company
or at the option of any holder of Series A Preferred Stock; provided,
however, that the Company may purchase or otherwise acquire outstanding
shares of Series A Preferred Stock in the open market or by offer to any
holder or holders of shares of Series A Preferred Stock.
(b) The shares of Series A Preferred Stock shall not be subject
to or entitled to the operation of a retirement or sinking fund.
SECTION 8. Ranking. The Series A Preferred Stock shall rank
junior to all other series of Preferred Stock of the Company unless the
Board of Directors shall specifically determine otherwise in fixing the
powers, preferences and relative, participating, optional and other
special rights of the shares of such series and the qualifications,
limitations and restrictions thereof.
SECTION 9. Fractional Shares. The Series A Preferred Stock shall
be issuable upon exercise of the Rights issued pursuant to the Rights
Agreement in whole shares or in any fraction of a share that is one
one-thousandth (1/1,000) of a share or any integral
<PAGE>
multiple of such fraction which shall entitle the holder, in proportion to
such holder's fractional shares, to receive dividends, exercise voting
rights, participate in distributions and to have the benefit of all other
rights of holders of Series A Preferred Stock. In lieu of fractional
shares, the Company, prior to the first issuance of a share or a fraction
of a share of Series A Preferred Stock, may elect (a) to make a cash
payment as provided in the Rights Agreement for fractions of a share other
than one one-thousandth (1/1,000) of a share or any integral multiple
thereof or (b) to issue depository receipts evidencing such authorized
fraction of a share of Series A Preferred Stock pursuant to an appropriate
agreement between the Company and a depository selected by the Company;
provided that such agreement shall provide that the holders of such
depository receipts shall have all the rights, privileges and preferences
to which they are entitled as holders of the Series A Preferred Stock.
SECTION 10. Reacquired Shares. Any shares of Series A Preferred
Stock purchased or otherwise acquired by the Company in any manner
whatsoever shall be retired and canceled promptly after the acquisition
thereof. All such shares shall upon their cancelation become authorized
but unissued shares of Preferred Stock, without designation as to series
until such shares are once more designated as part of a particular series
by the Board of Directors pursuant to the provisions of Article FOURTH of
the Restated Certificate of Incorporation.
SECTION 11. Amendment. None of the powers, preferences and
relative, participating, optional and other special rights of the Series A
Preferred Stock as provided herein or in the Restated Certificate of
Incorporation shall be amended in any manner which would alter or change
the powers, preferences, rights or privileges of the holders of Series A
Preferred Stock so as to affect them adversely without the affirmative
vote of the holders of at least 66-2/3% of the outstanding shares of
Series A Preferred Stock, voting as a separate class; provided, however,
that no such amendment approved by the holders of at least 66-2/3% of the
outstanding shares of Series A Preferred Stock shall be deemed to apply to
the powers, preferences, rights or privileges of any holder of shares of
Series A Preferred Stock originally issued upon exercise of the Rights
after the time of such approval without the approval of such holder.
IN WITNESS WHEREOF, the Company has caused this Certificate to
be duly executed in its corporate name on this 5th day of February, 1999.
MILACRON INC.,
by /s/ Ronald D. Brown
--------------------------
Name: Ronald D. Brown
Title: Senior Vice President and
Chief Financial Officer
<PAGE>
EXHIBIT B
[Form of Right Certificate]
Certificate No. [R]-
___________ Rights
NOT EXERCISABLE AFTER FEBRUARY [ ], 2009, 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. RIGHTS BENEFICIALLY OWNED BY AN
ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING
PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) AND
BY ANY SUBSEQUENT HOLDER OF SUCH RIGHTS ARE NULL AND VOID AND
NONTRANSFERABLE.
Right Certificate
MILACRON INC.
This certifies that , or registered assigns,
is the registered owner of the number of Rights set forth above, each of
which entitles the owner thereof, subject to the terms, provisions and
conditions of the Rights Agreement dated as of February 5, 1999 (the
"Rights Agreement"), between Milacron Inc., a Delaware corporation (the
"Company"), and ChaseMellon Shareholder Services, L.L.C., as Rights Agent
(the "Rights Agent"), unless the Rights evidenced hereby shall have been
previously redeemed by the Company, to purchase from the Company at any
time after the Distribution Date (as defined in the Rights Agreement) and
prior to 5:00 p.m., New York City time, on the 10th anniversary of the
date of the Rights Agreement (the "Expiration Date"), at the principal
office or offices of the Rights Agent designated for such purpose, or its
successors as Rights Agent, one one-thousandth (1/1,000) of a fully paid,
nonassessable share of Series A Participating Cumulative Preferred Stock,
par value $1.00 per share, of the Company (the "Preferred Shares"), at a
purchase price per one one-thousandth (1/1,000) of a share equal to $70.00
(the "Purchase Price") payable in cash, upon presentation and surrender of
this Right Certificate with the Form of Election to Purchase duly
executed.
The Purchase Price and the number and kind of shares which may
be purchased upon exercise of each Right evidenced by this Right
Certificate, as set forth above, are the Purchase Price and the number and
kind of shares which may be so purchased as of February 5, 1999. As
provided in the Rights Agreement, the Purchase Price and the number and
kind of shares which may be purchased upon the exercise of each Right
evidenced by this Right Certificate are subject to modification and
adjustment upon the happening of certain events.
If the Rights evidenced by this Right Certificate are at any
time beneficially owned by an Acquiring Person or an Affiliate or
Associate of an Acquiring Person (as such terms are defined in the Rights
Agreement), such Rights shall be null and void and
<PAGE>
nontransferable and the holder of any such Right (including any purported
transferee or subsequent holder) shall not have any right to exercise or
transfer any such Right.
This Right Certificate is subject to all 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 reference to the Rights Agreement is hereby made for a
full description of the rights, limitations of rights, obligations, duties
and immunities hereunder of the Rights Agent, the Company and the holders
of the Right Certificates. Copies of the Rights Agreement are on file at
the above-mentioned office of the Rights Agent and are also available from
the Company upon written request.
This Right Certificate, with or without other Right
Certificates, upon surrender at the principal stock transfer or corporate
trust office of the Rights Agent, may be exchanged for another Right
Certificate or Right Certificates of like tenor and date evidencing Rights
entitling the holder to purchase a like aggregate number and kind of
shares as the Rights evidenced by the Right Certificate or Right
Certificates surrendered shall have entitled such holder to purchase. If
this Right Certificate shall be exercised in part, the holder shall be
entitled to receive upon surrender hereof another Right Certificate or
Right Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Right Certificate may be redeemed by the Company at its
option at a redemption price (in cash or shares of Common Stock or other
securities of the Company deemed by the Board of Directors to be at least
equivalent in value) of $.01 per Right (which amount shall be subject to
adjustment as provided in the Rights Agreement) at any time prior to the
earlier of (i) such time as a Person becomes an Acquiring Person and (ii)
the Expiration Date.
The Company may, but shall not be required to, issue fractions
of Preferred Shares or distribute certificates which evidence fractions of
Preferred Shares upon the exercise of any Right or Rights evidenced
hereby. In lieu of issuing fractional shares, the Company may elect to
make a cash payment as provided in the Rights Agreement for fractions of a
share other than one one-thousandth (1/1,000) of a share or any integral
multiple thereof or to issue certificates or utilize a depository
arrangement as provided in the terms of the Rights Agreement and the
Preferred Shares.
No holder of this Right Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of the Preferred
Shares or of any other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything contained in the
Rights Agreement or herein be construed to confer upon the holder hereof,
as such, any of the rights of a stockholder of the Company, including,
without limitation, any right to vote for the election of directors or
upon any matter submitted to stockholders at any meeting thereof, or to
give or withhold consent to any corporate action, or to receive notice of
meetings or other actions affecting stockholders (except as provided in
the Rights Agreement), or to receive dividends or other distributions or
subscription rights, or otherwise, until the Right or Rights evidenced by
this Right Certificate shall have been exercised as provided in accordance
with the provisions of the Rights Agreement.
<PAGE>
This Right Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by an authorized signatory
of the Rights Agent.
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal.
Dated as of:
MILACRON INC.,
by
---------------------------
Name:
Title:
Attest:
- ------------------------------
Name:
Title:
Date of countersignature:
Countersigned:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.,
as Rights Agent,
by
----------------------------
Authorized Signatory
<PAGE>
[On Reverse Side of Right Certificate]
FORM OF ELECTION TO PURCHASE
(To be executed by the registered holder if
such holder desires to exercise the Rights
represented by this Right Certificate.)
To the Rights Agent:
The undersigned hereby irrevocably elects to exercise
Rights represented by this Right Certificate to purchase the Preferred
Shares (or other shares) issuable upon the exercise of such Rights and
requests that certificates for such shares be issued in the name of:
Please insert social security
or other identifying number
(Please print name and address)
<PAGE>
If such number of Rights shall not be all the Rights evidenced
by this Right Certificate, a new Right Certificate for the balance
remaining of such Rights shall be registered in the name of and delivered
to:
Please insert social security
or other identifying number
(Please print name and address)
Dated: , 19
Signature
Signature Guaranteed:
<PAGE>
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED _______________________________ hereby sells,
assigns and transfer unto
- ---------------------------------------------------
- ------------------------------------------------------------------------
(Please print name and address of transferee)
- ------------------------------------------------------------------------
this Right Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint ______________
Attorney, to transfer the within Right Certificate on the books of the
within-named Corporation, with full power of substitution.
Dated: ____________, 19__
------------------------------
Signature
Signature Guaranteed:
The undersigned hereby certifies that (1) the Rights evidenced
by this Right Certificate are not being sold, assigned or transferred by
or on behalf of a Person who is or was an Acquiring Person or an Affiliate
or Associate thereof (as such terms are defined in the Rights Agreement),
(2) this Rights Certificate is not being sold, assigned or transferred to
or on behalf of any such Acquiring Person, Affiliate or Associate and (3)
after inquiry and to the best knowledge of the undersigned, the
undersigned did not acquire the Rights evidenced by this Right Certificate
from any Person who is or was an Acquiring Person or an Affiliate or
Associate thereof (as such terms are defined in the Rights Agreement).
------------------------------
Signature
<PAGE>
NOTICE
The signature on the foregoing Form of Election to Purchase or
Form of Assignment must correspond to the name as written upon the face of
this Right Certificate in every particular, without alteration or
enlargement or any change whatsoever.
