SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) or 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
PEOPLES FIRST CORPORATION
Kentucky 61-1023747
(state of incorporation (IRS Employer
or organization) Identification No.)
100 South Fourth Street
Paducah, Kentucky 42002-2200
(Address of principal (Zip Code)
executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on to be
so registered which class is to be registered
None Not Applicable
Securities to be registered pursuant to Section 12(g) of the Act:
Junior Participating Preferred Stock Purchase Rights
(Title of class)
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be Registered.
On January 18, 1995, the Board of Directors of Peoples First
Corporation (the "Company") declared a dividend distribution of one
Right for each outstanding share of the Company's Common Stock to
shareholders of record at the close of business on January 31, 1995
(the "Record Date"). Each Right entitles the registered holder to
purchase from the Company a unit consisting of one one-hundredth of
a share (a "Unit") of Junior Participating Preferred Stock (the
"Preferred Stock") at a Purchase Price of $60.00 per Unit, subject
to adjustment. The description and terms of the Rights are set
forth in a Rights Agreement (the "Rights Agreement") between the
Company and Boatmen's Trust Company, as Rights Agent.
Initially, the Rights will be attached to all Common Stock
certificates representing shares then outstanding, and no separate
Rights Certificates will be distributed. The Rights will separate
from the Common Stock and a Distribution Date will occur upon the
earlier of (i) 20 business days following a public announcement
that a person or group of affiliated or associated persons (an
"Acquiring Person") has acquired, or obtained the rights to
acquire, beneficial ownership of 20% or more of the outstanding
shares of Common Stock (the "Stock Acquisition Date") or (ii) 20
business days following the commencement of a tender offer or
exchange offer that would result in a person or group beneficially
owning 30% or more of such outstanding shares of Common Stock.
Until the Distribution Date, (i) the Rights will be evidenced
by the Common Stock certificates and will be transferred with and
only with such Common Stock certificates, (ii) new Common Stock
certificates issued after the Record Date will contain a notation
incorporating the Rights Agreement by reference and (iii) the
surrender for transfer of any certificates for Common Stock
outstanding will also constitute the transfer of the Rights
associated with the Common Stock represented by such certificate.
Pursuant to the Rights Agreement, the Company reserves the right to
require before the occurrence of a Triggering Event (as defined
below) that, upon any exercise of Rights, a number of Rights be
exercised so that only whole shares of Preferred Stock will be
issued.
The Rights are not exercisable until the Distribution Date and
will expire at the close of business on January 31, 2005, unless
earlier redeemed by the Company as described below.
As soon as practicable after the Distribution Date, Rights
Certificates will be mailed to holders of record of the Common
Stock as of the close of business on the Distribution Date and,
thereafter, the separate Rights Certificates alone will represent
the Rights. Except as otherwise determined by the Board of
Directors, only shares of Common Stock issued before the Distri-
bution Date will be issued with Rights.
If, at any time following the Distribution Date, (i) an
Acquiring Person engages in one or more "self-dealing" transactions
as set forth in the Rights Agreement, (ii) a person becomes the
Beneficial Owner of 30% or more of the then outstanding shares of
Common Stock (except pursuant to an offer for all outstanding
shares of Common Stock that a majority of the Continuing Directors
who are not officers of the Company determine to be fair to and
otherwise in the best interests of the Company and its
shareholders), or (iii) during such time as there is an Acquiring
Person, an event occurs that results in such Acquiring Person's
ownership interest being increased by more than 1% (e.g., a reverse
stock split), each holder of a Right will thereafter have the right
to receive, upon exercise, Common Stock (or, in certain
circumstances, cash, property or other securities of the Company)
having a value equal to two times the exercise price of the Right.
Notwithstanding any of the foregoing, following the occurrence of
any of the events set forth in this paragraph, all rights that are,
or (under certain circumstances specified in the Rights Agreement)
were beneficially owned by any Acquiring Person will be null and
void. However, Rights are not exercisable following the occurrence
of any of the events set forth above until such time as the Rights
are no longer redeemable by the Company as set forth below.
For example, at an exercise price of $60.00 per Right, each
Right not owned by an Acquiring Person (or by certain related
parties) following an event set forth in the preceding paragraph
would entitle its holder to purchase $120.00 worth of Common Stock
based on the current market price (as defined in the Agreement) of
the Common Stock for $60.00. Assuming that the current market
price of the Common Stock is $20.00, the holder of each valid Right
would be entitled to purchase six shares of Common Stock for
$60.00.
If, at any time following the Stock Acquisition Date, (i) the
Company is acquired in a merger or other business combination
transaction in which the Company is not the surviving corporation
(other than a merger which follows an offer described in the second
preceding paragraph), or (ii) 50% or more of the Company's assets
or earning power is sold or transferred, each holder of a Right
(except Rights which previously have been voided as set forth
above) shall thereafter have the right to receive, upon exercise,
common stock of the acquiring company having a value equal to two
times the exercise price of the Right. The events set forth in
this paragraph and in the second preceding paragraph are referred
to as the "Triggering Events."
The Purchase Price payable, and the number of Units of Pre-
ferred Stock or other securities or property issuable, upon exer-
cise of the Rights are subject to adjustment from time to time to
prevent dilution (i) in the event of a stock dividend on, or a
subdivision, combination or reclassification of, the Preferred
Stock, (ii) if holders of the Preferred Stock are granted certain
rights or warrants to subscribe for Preferred Stock or convertible
securities at less than the current market price of the Preferred
Stock, or (iii) upon the distribution to holders of the Preferred
Stock of evidences of indebtedness or assets (excluding regular
quarterly cash dividends) or of subscription rights or warrants
(other than those referred to above).
With certain exceptions, no adjustment in the Purchase Price
will be required until cumulative adjustments amount to at least 1%
of the Purchase Price. No fractional Units will be issued and, in
lieu thereof, an adjustment in cash will be made based on the
closing price of the Preferred Stock on the last trading date
before the date of exercise.
At any time until twenty business days following the Stock
Acquisition Date, the Company may redeem the Rights in whole, but
not in part, at a price of $.01 per Right (payable in cash, Common
Stock or other consideration deemed appropriate by the Board of
Directors). Under certain circumstances set forth in the Rights
Agreement, the decision to redeem shall require the concurrence of
a majority of the Continuing Directors. After the redemption
period has expired, the Company's right of redemption may be
reinstated if an Acquiring Person reduces his beneficial ownership
to less than 10% of the outstanding shares of Common Stock in a
transaction or series of transactions not involving the Company.
Immediately upon the action of the Board of Directors ordering
redemption of the Rights, with, where required, the concurrence of
the Continuing Directors, the Rights terminate and the only right
of the holders of Rights will be to receive the $.01 redemption
price.
The term "Continuing Directors" means any member of the Board
of Directors of the Company who was a member of the Board before
the date of the Rights Agreement, and any person who is subse-
quently elected to the Board if such person is recommended or
approved by a majority of the Continuing Directors, but shall not
include an Acquiring Person or an affiliate or associate of an
Acquiring Person or any representative of the foregoing entities.
At any time after the Rights become exercisable for Common
Stock (or other consideration) of the Company, the Board of
Directors may exchange the Rights (other than Rights owned by an
Acquiring Person which have become void), in whole or in part, at
an exchange ratio of one Common Share, and/or other equity
securities deemed to have the same value as one Common Share, per
Right, subject to adjustment.
Until a Right is exercised, the holder thereof, as such, will
have no rights as a shareholder of the Company, including, without
limitation, the right to vote or to receive dividends. While the
distribution of the Rights will not be taxable to shareholders or
to the Company, shareholders may, depending upon the circumstances,
recognize taxable income if the Rights become exercisable for
Common Stock (or other consideration) of the Company or for common
stock of the acquiring company as set forth above, or are exchanged
as set forth above.
Any of the provisions of the Rights Agreement may be amended
by the Board of Directors of the Company before the Distribution
Date. After the Distribution Date, the provisions of the Rights
Agreement may be amended by the Board (in certain circumstances,
with the concurrence of the Continuing Directors) in order to cure
any ambiguity, to make changes that do not adversely affect the
interests of the holders of Rights (excluding the interests of any
Acquiring Person or an affiliate or associate of any such person),
or to shorten or lengthen any time period under the Rights
Agreement; provided, however, that no amendment to adjust the time
period governing redemption shall be made at such time as the
Rights are not redeemable.
Item 2. Exhibits.
a. Form of Rights Certificate (included as Exhibit B to the
Rights Agreement)
b. Rights Agreement dated as of January 18, 1995, between
Peoples First Corporation and Boatmen's Trust Company, as
Rights Agent. Exhibit A to the Rights Agreement is a
Form of Articles of Amendment to the Company's Amended
and Restated Articles of Incorporation that describes the
rights and preferences of the Junior Participating
Preferred Stock. Exhibit B to the Rights Agreement is
a Form of Rights Certificate. Exhibit C to the Rights
Agreement is a Summary of Rights to Purchase Preferred
stock that summarizes the rights of holders of
Junior Participating Preferred Stock Purchase Rights and
will be Sent to shareholders of record as of January 31,
1995.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this regis-
tration statement to be signed on its behalf by the undersigned,
thereto duly authorized.
PEOPLES FIRST CORPORATION
Date: January 18, 1995 By /s/ Aubrey W. Lippert
Aubrey W. Lippert
Chairman of the Board, President
and Chief Executive Officer
PEOPLES FIRST CORPORATION
and
BOATMEN'S TRUST COMPANY
Rights Agent
__________
Rights Agreement
Dated as of January 18, 1995
TABLE OF CONTENTS
Section PAGE
1. Certain Definitions. . . . . . . . . . . . . . . . . . . . 1
2. Appointment of Rights Agent. . . . . . . . . . . . . . . . 5
3. Issue of Rights Certificates . . . . . . . . . . . . . . . 5
4. Form of Rights Certificates. . . . . . . . . . . . . . . . 7
5. Countersignature and Registration. . . . . . . . . . . . . 8
6. Transfer, Split Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen
Rights Certificates. . . . . . . . . . . . . . . . . . . 9
7. Exercise of Rights; Purchase Price; Expiration Date of
Rights . . . . . . . . . . . . . . . . . . . . . . . . . 10
8. Cancellation and Destruction of Rights Certificates. . . . 12
9. Reservation and Availability of Capital Stock. . . . . . . 13
10. Preferred Stock Record Date . . . . . . . . . . . . . . . 14
11. Adjustment of Purchase Price, Number and Kind of
Shares or Number of Rights. . . . . . . . . . . . . . . 15
12. Certificate of Adjusted Purchase Price or Number
of Shares . . . . . . . . . . . . . . . . . . . . . . . 25
13. Consolidation, Merger or Sale or Transfer of Assets
or Earning Power. . . . . . . . . . . . . . . . . . . . 26
14. Fractional Rights and Fractional Shares . . . . . . . . . 29
15. Rights of Action. . . . . . . . . . . . . . . . . . . . . 30
16. Agreement of Rights Holders . . . . . . . . . . . . . . . 31
17. Rights Certificate Holder Not Deemed a Stockholder. . . . 31
18. Concerning the Rights Agent . . . . . . . . . . . . . . . 32
19. Merger or Consolidation or Change of Name of
Rights Agent. . . . . . . . . . . . . . . . . . . . . . 32
20. Duties of Rights Agent. . . . . . . . . . . . . . . . . . 33
21. Change of Rights Agent. . . . . . . . . . . . . . . . . . 35
22. Issuance of New Rights Certificates . . . . . . . . . . . 36
23. Redemption and Termination. . . . . . . . . . . . . . . . 37
24. Exchange. . . . . . . . . . . . . . . . . . . . . . . . . 38
25. Notice of Certain Events. . . . . . . . . . . . . . . . . 39
26. Notices . . . . . . . . . . . . . . . . . . . . . . . . . 40
27. Supplements and Amendments. . . . . . . . . . . . . . . . 41
28. Successors. . . . . . . . . . . . . . . . . . . . . . . . 42
29. Determinations and Actions by the Board of Directors, etc. 42
30. Benefits of this Agreement. . . . . . . . . . . . . . . . 43
31. Severability. . . . . . . . . . . . . . . . . . . . . . . 43
32. Governing Law . . . . . . . . . . . . . . . . . . . . . . 43
33. Counterparts. . . . . . . . . . . . . . . . . . . . . . . 43
34. Descriptive Headings. . . . . . . . . . . . . . . . . . . 43
Exhibit A -- Form of Articles of Amendment
Exhibit B -- Form of Rights Certificate
Exhibit C -- Form of Summary of Rights
RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of January 18, 1995 (the
"Agreement"), between Peoples First Corporation, a Kentucky
corporation (the "Company"), and Boatmen's Trust Company, a
Missouri corporation (the "Rights Agent").
W I T N E S S E T H
WHEREAS, on January 18, 1995 (the "Rights Dividend Declaration
Date"), the Board of Directors of the Company authorized and
declared a dividend distribution of one right for each share of
common stock of the Company (the "Common Stock") outstanding at the
close of business on January 31, 1995 (the "Record Date"), and has
authorized the issuance of one Right (as such number may hereinaf-
ter be adjusted pursuant to the provisions of Section 11(p) hereof)
for each share of Common Stock of the Company issued between the
Record Date (whether originally issued or delivered from the Com-
pany's treasury) and the Distribution Date, each Right initially
representing the right to purchase one one-hundredth of a share of
Junior Participating Preferred Stock of the Company having the
rights, powers and preferences set forth in the form of Articles of
Amendment to the Company's Amended and Restated Articles of Incor-
poration attached hereto as Exhibit A, upon the terms and subject
to the conditions hereinafter set forth (the "Rights");
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as
follows:
Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who or
which, together with all Affiliates and Associates of such Person,
shall be the Beneficial Owner of 20% or more of the shares of
Common Stock then outstanding but shall not include the Company,
any Subsidiary of the Company, any employee benefit plan of the
Company or of any Subsidiary of the Company, or any Person or
entity organized, appointed or established by the Company for or
pursuant to the terms of any such plan, or any Person who becomes
an Acquiring Person solely as a result of the reduction in the
number of shares of Common Stock outstanding due to the repurchase
of shares of Common Stock by the Company, unless and until such
Person shall purchase or otherwise become the Beneficial Owner of
additional shares of Common Stock constituting 1% or more of the
then outstanding shares of Common Stock.
(b) "Affiliate" and "Associate" shall have the respec-
tive meanings ascribed to such terms in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as
amended and in effect on the date of this Agreement.
(c) A Person shall be deemed the "Beneficial Owner" of,
and shall be deemed to "beneficially own," any securities:
(i) which such Person or any of such
Person's Affiliates or Associates, directly or indi-
rectly, has the right to acquire (whether such right is
exercisable immediately or only after the passage of
time) pursuant to any agreement, arrangement or under-
standing (whether or not in writing) or upon the exercise
of conversion rights, exchange rights, rights, warrants
or options, or otherwise; provided, however, that a
Person shall not be deemed the "Beneficial Owner" of, or
to "beneficially own," (A) securities tendered pursuant
to a tender offer or exchange offer made by such Person
or any of such Person's Affiliates or Associates until
such tendered securities are accepted for purchase or
exchange, or (B) securities issuable upon exercise of
Rights at any time before the occurrence of a Triggering
Event, or (C) securities issuable upon exercise of Rights
from and after the occurrence of a Triggering Event which
Rights were acquired by such Person or any of such
Person's Affiliates or Associates before the Distribution
Date or pursuant to Section 3(a) or Section 22 hereof
(the "Original Rights") or pursuant to Section 11(i)
hereof in connection with an adjustment made with respect
to any Original Rights;
(ii) which such Person or any of such
Person's Affiliates or Associates, directly or indi-
rectly, has the right to vote or dispose of or has "bene-
ficial ownership" of (as determined pursuant to Rule 13d-
3 of the General Rules and Regulations under the Exchange
Act), including pursuant to any agreement, arrangement or
understanding, whether or not in writing; provided, how-
ever, that a Person shall not be deemed the "Beneficial
Owner" of, or to "beneficially own," any security under
this subparagraph (ii) as a result of an agreement, ar-
rangement or understanding to vote such security if such
agreement, arrangement or understanding: (A) arises
solely from a revocable proxy given in response to a
public proxy or consent solicitation made pursuant to,
and in accordance with, the applicable provisions of the
General Rules and Regulations under the Exchange Act, and
(B) is not also then reportable by such Person on Sched-
ule 13D under the Exchange Act (or any comparable or
successor report); or
(iii) which are beneficially owned,
directly or indirectly, by any other Person (or any
Affiliate or Associate thereof) with which such Person
(or any of such Person's Affiliates or Associates) has
any agreement, arrangement or understanding (whether or
not in writing), for the purpose of acquiring, holding,
voting (except pursuant to a revocable proxy as described
in the proviso to subparagraph (ii) of this paragraph
(d)) or disposing of any voting securities of the Com-
pany; provided, however, that nothing in this paragraph
(d) shall cause a person engaged in business as an
underwriter of securities to be the "Beneficial Owner"
of, or to "beneficially own," any securities acquired
through such person's participation in good faith in a
firm commitment underwriting until the expiration of
forty days after the date of such acquisition.
(d) "Business Day" shall mean any day other than a
Saturday, Sunday or a day on which banking institutions in the
Commonwealth of Kentucky are authorized or obligated by law or
executive order to close.
(e) "Close of business" on any given date shall mean
5:00 P.M., Paducah time, on such date; provided, however, that if
such date is not a Business Day it shall mean 5:00 P.M., Paducah
time, on the next succeeding Business Day.
(f) "Common Stock" shall mean the common stock of the
Company, except that "Common Stock" when used with reference to any
Person other than the Company shall mean the capital stock of such
Person with the greatest voting power, or the equity securities or
other equity interest having power to control or direct the
management, of such Person.
(g) "Common stock equivalents" shall have the meaning
set forth in Section 11(a)(iii) hereof.
(h) "Continuing Director" shall mean (i) any member of
the Board of Directors of the Company, while such Person is a
member of the Board, who is not an Acquiring Person or an Affiliate
or Associate of any such Person, or a representative of any such
Person, Affiliate or Associate, and was a member of the Board
before the date of this Agreement, or (ii) any Person who
subsequently becomes a member of the Board, while such Person is a
member of the Board, who is not an Acquiring Person or an Affiliate
or Associate of any such Person, or a representative of any such
Person, Affiliate or Associate, if such Person's nomination for
election or election to the Board is recommended or approved by a
majority of the Continuing Directors.
(i) "Current market price" shall have the meaning set
forth in Section 11(d)(i) hereof.
(j) "Current Value" shall have the meaning set forth in
Section 11(a)(iii) hereof.
(k) "Distribution Date" shall have the meaning set forth
in Section 3(a) hereof.
(l) "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended.
(m) "Expiration Date" shall have the meaning set forth
in Section 7(a) hereof.
(n) "Final Expiration Date" shall have the meaning set
forth in Section 7(a) hereof.
(o) "Person" shall mean any individual, firm, corpora-
tion, partnership or other entity.
(p) "Preferred Stock" shall mean shares of Junior Par-
ticipating Preferred Stock of the Company, and to the extent that
there are not a sufficient number of shares of Junior Participating
Preferred Stock authorized to permit the full exercise of the
Rights, any other series of Preferred Stock of the Company
designated for such purpose containing terms substantially similar
to the terms of the Junior Participating Preferred Stock.
(q) "Principal Party" shall have the meaning set forth
in Section 13(b) hereof.
(r) "Purchase Price" shall have the meaning set forth in
Section 4(a) hereof.
(s) "Redemption Price" shall have the meaning set forth
in Section 23(a) hereof.
(t) "Rights" shall have the meaning set forth in the
WHEREAS clause at the beginning of this Agreement.
(u) "Rights Certificates" shall have the meaning set
forth in Section 3(a) hereof.
(v) "Section 11(a)(ii) Event" shall mean any event
described in clauses (A), (B) or (C) of Section 11(a)(ii) hereof.
(w) "Section 11(a)(ii) Trigger Date" shall have the
meaning set forth in Section 11(a)(iii) hereof.
(x) "Section 13 Event" shall mean any event described in
clauses (x), (y) or (z) of Section 13(a) hereof.
(y) "Spread" shall have the meaning set forth in Section
11(a)(iii) hereof.
(z) "Stock Acquisition Date" shall mean the first date
of public announcement (which, for purposes of this definition,
shall include, without limitation, a report filed pursuant to Sec-
tion 13(d) under the Exchange Act) by the Company or an Acquiring
Person that an Acquiring Person has become such.
(aa) "Subsidiary" shall mean, with reference to any
Person, any corporation of which an amount of voting securities
sufficient to elect at least a majority of the directors of such
corporation is beneficially owned, directly or indirectly, by such
Person or otherwise controlled by such Person.
(bb) "Substitution Period" shall have the meaning set
forth in Section 11(a)(iii) hereof.
(cc) "Trading Day" shall have the meaning set forth in
Section 11(d)(i) hereof.
(dd) "Triggering Event" shall mean any Section 11(a)(ii)
Event or Section 13 Event.
Section 2. Appointment of Rights Agent. The Company hereby
appoints the Rights Agent to act as agent for the Company and the
holders of the Rights (who, in accordance with Section 3 hereof,
shall before the Distribution Date also be the holders of the Com-
mon Stock) in accordance with the terms and conditions hereof, and
the Rights Agent hereby accepts such appointment. The Company may
from time to time appoint such Co-Rights Agents as it may deem
necessary or desirable.
Section 3. Issue of Rights Certificates.
(a) Until the earlier of (i) the close of business on
the twentieth Business Day after the Stock Acquisition Date (or, if
the twentieth Business Day after the Stock Acquisition Date occurs
before the Record Date, the close of business on the Record Date)
or (ii) the close of business on the twentieth Business Day after
the date that a tender offer or exchange offer by any Person (other
than the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or of any Subsidiary of the Company, or
any Person or entity organized, appointed or established by the
Company for or pursuant to the terms of any such plan) is first
published or sent or given with the meaning of Rule 14d-2(a) of the
General Rules and Regulations under the Exchange Act, if upon
consummation thereof, such Person would be the Beneficial Owner of
30% or more of the shares of Common Stock then outstanding, (the
earlier of (i) and (ii) being herein referred to as the
"Distribution Date"), (x) the Rights will be evidenced (subject to
the provisions of paragraph (b) of this Section 3) by the certifi-
cates for the Common Stock registered in the names of the holders
of the Common Stock (which certificates for Common Stock shall be
deemed also to be certificates for Rights) and not by separate
certificates, and (y) the Rights will be transferable only in
connection with the transfer of the underlying shares of Common
Stock (including a transfer to the Company). As soon as practic-
able after the Distribution Date, the Rights Agent will send by
first-class, insured, postage prepaid mail, to each record holder
of the Common Stock as of the close of business on the Distribution
Date, at the address of such holder shown on the records of the
Company, one or more rights certificates, in substantially the form
of Exhibit B hereto (the "Rights Certificates"), evidencing one
Right for each share of Common Stock so held, subject to adjustment
as provided herein. If an adjustment in the number of Rights per
share of Common Stock has been made pursuant to Section 11(p)
hereof, at the time of distribution of the Rights Certificates, the
Company shall make the necessary and appropriate rounding adjust-
ments (in accordance with Section 14(a) hereof) so that Rights Cer-
tificates representing only whole numbers of Rights are distributed
and cash is paid in lieu of any fractional Rights. As of and after
the Distribution Date, the Rights will be evidenced solely by such
Rights Certificates.
(b) As promptly as practicable following the Record
Date, the Company will send a copy of a Summary of Rights, in
substantially the form attached hereto as Exhibit C (the "Summary
of Rights"), by first-class, postage prepaid mail, to each record
holder of the Common Stock 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 certificates for the Common Stock
outstanding as of the Record Date, until the Distribution Date, the
Rights will be evidenced by such certificates for the Common Stock
and the registered holders of the Common Stock shall also be the
registered holders of the associated Rights. Until the earlier of
the Distribution Date or the Expiration Date (as such term is
defined in Section 7 hereof), the transfer of any certificates
representing shares of Common Stock in respect of which Rights have
been issued shall also constitute the transfer of the Rights
associated with such shares of Common Stock.
(c) Rights shall be issued in respect of all shares of
Common Stock which are issued (whether originally issued or from
the Company's treasury, if any) after the Record Date but before
the earlier of the Distribution Date or the Expiration Date. Cer-
tificates representing such shares of Common Stock shall also be
deemed to be certificates for Rights, and all certificates issued
for newly issued shares or transfers of Common Stock after the
Record Date shall bear the following legend:
This certificate also evidences and entitles the
holder hereof to certain Rights as set forth in the
Rights Agreement between Peoples First Corporation (the
"Company") and Boatmen's Trust Company (the "Rights
Agent") dated as of January 18, 1995 (the "Rights
Agreement"), the terms of which are hereby incorporated
herein by reference and a copy of which is on file at the
principal offices of the Company. Under certain
circumstances, as set forth in the Rights Agreement, such
Rights will be evidenced by separate certificates and
will no longer be evidenced by this certificate. The
Company or the Rights Agent will mail to the holder of
this certificate a copy of the Rights Agreement, as in
effect on the date of mailing, without charge promptly
after receipt of a written request therefor. Under
certain circumstances set forth in the Rights Agreement,
Rights issued to, or held by, any Person who is, was or
becomes an Acquiring Person or any Affiliate or Associate
thereof (as such terms are defined in the Rights
Agreement), whether currently held by or on behalf of
such Person or by any subsequent holder, may become null
and void.
With respect to such certificates containing the foregoing legend,
until the earlier of (i) the Distribution Date or (ii) the Expira-
tion Date, the Rights associated with the Common Stock represented
by such certificates shall be evidenced by such certificates alone
and registered holders of Common Stock shall also be the registered
holders of the associated Rights, and the transfer of any of such
certificates shall also constitute the transfer of the Rights
associated with the Common Stock represented by such certificates.
Section 4. Form of Rights Certificates.
(a) The Rights Certificates (and the forms of election
to purchase and of assignment to be printed on the reverse thereof)
shall each be substantially in the form set forth in Exhibit B
hereto and may have such marks of identification or designation and
such legends, summaries or endorsements printed thereon as the
Company may deem appropriate and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with
any applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on
which the Rights may from time to time be listed, or to conform to
usage. Subject to the provisions of Section 11 and Section 22
hereof, the Rights Certificates, whenever distributed, shall be
dated as of the Record Date and on their face shall entitle the
holders thereof to purchase such number of one one-hundredths of a
share of Preferred Stock as shall be set forth therein at the price
set forth therein (such exercise price per one one-hundredth of a
share, the "Purchase Price"), but the amount and type of securities
purchasable upon the exercise of each Right and the Purchase Price
thereof shall be subject to adjustment as provided herein.
(b) Any Rights Certificate issued pursuant to Section
3(a) or Section 22 hereof that represents Rights beneficially owned
by: (i) an Acquiring Person or any Associate or Affiliate of an
Acquiring Person, (ii) a transferee of an Acquiring Person (or of
any such Associate or Affiliate) who becomes a transferee after
such Acquiring Person becomes such, or (iii) a transferee of an
Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee before 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 such 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 avoidance of
Section 7(e) hereof, and any Rights Certificate issued pursuant to
Section 6 or Section 11 hereof upon transfer, exchange, replacement
or adjustment of any other Rights Certificate referred to in this
sentence, shall contain (to the extent feasible) the following
legend:
The Rights represented by this Rights Certificate are or
were beneficially owned by a Person who was or became an
Acquiring Person or an Affiliate or Associate thereof (as
such terms are defined in the Rights Agreement).
Accordingly, this Rights Certificate and the Rights
represented hereby have become null and void in the
circumstances and with the effect specified in Section
7(e) of such Agreement.
Section 5. Countersignature and Registration.
(a) The Rights Certificates shall be executed on behalf
of the Company by its Chairman of the Board and President, or any
Vice President of the Company, either manually or by facsimile
signature, and shall have affixed thereto the Company's seal or a
facsimile thereof which shall be attested by the Secretary or an
Assistant Secretary of the Company, either manually or by facsimile
signature. The Rights Certificates shall be countersigned manually
by the Rights Agent and shall not be valid for any purpose unless
so countersigned. In case any officer of the Company who shall
have signed any of the Rights Certificates shall cease to be such
officer of the Company before countersignature by the Rights Agent
and issuance and delivery by the Company, such Rights Certificates,
nevertheless, may be countersigned by the Rights Agent and issued
and delivered by the Company with the same force and effect as
though the person who signed such Rights Certificates had not
ceased to be such officer of the Company; and any Rights
Certificates may be signed on behalf of the Company by any person
who, at the actual date of the execution of such Rights
Certificate, shall be a proper officer of the Company to sign such
Rights Certificate, although at the date of the execution of this
Rights Agreement any such person was not such an officer.
(b) Following the Distribution Date, the Rights Agent
will keep or cause to be kept, at its principal office or offices
designated as the appropriate place for surrender of Rights Cer-
tificates upon exercise or transfer, books for registration and
transfer of the Rights Certificates issued hereunder. Such books
shall show the names and addresses of the respective holders of the
Rights Certificates, the number of Rights evidenced on its face by
each of the Rights Certificates and the certificate number and the
date of each of the Rights Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of
Rights Certificates; Mutilated, Destroyed, Lost or Stolen Rights
Certificates.
(a) Subject to the provisions of Section 4(b), Section
7(e), Section 14 and Section 24 hereof, at any time after the close
of business on the Distribution Date, and at or before the close of
business on the Expiration Date, any Rights Certificate or Certifi-
cates may be transferred, split up, combined or exchanged for
another Rights Certificate or Certificates, entitling the regis-
tered holder to purchase a like number of one one-hundredths of a
share of Preferred Stock (or, following a Triggering Event, Common
Stock, other securities, cash or other assets, as the case may be)
as the Rights Certificate or Certificates surrendered then entitled
such holder (or former holder in the case of a transfer) to pur-
chase. Any registered holder desiring to transfer, split up,
combine or exchange any Rights Certificate or Certificates shall
make such request in writing delivered to the Rights Agent, and
shall surrender the Rights Certificate or Certificates to be trans-
ferred, split up, combined or exchanged at the principal office or
offices of the Rights Agent designated for such purpose. Neither
the Rights Agent nor the Company shall be obligated to take any
action whatsoever with respect to the transfer of any such surrend-
ered Rights Certificate until the registered holder shall have com-
pleted and signed the certificate contained in the form of assign-
ment on the reverse side of such Rights Certificate and shall have
provided such additional evidence of the identity of the Beneficial
Owner (or former Beneficial Owner) or Affiliates or Associates
thereof as the Company shall reasonably request. Thereupon the
Rights Agent shall, subject to Section 4(b), Section 7(e) and
Section 14 hereof, countersign and deliver to the Person entitled
thereto a Rights Certificate or Rights Certificates, as the case
may be, as so requested. The Company may require payment of a sum
sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer, split up, combination or
exchange of Rights Certificates.
(b) Upon receipt by the Company and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Rights Certificate, and, in case of
loss, theft or destruction, of indemnity or security reasonably
satisfactory to them, and reimbursement to the Company and the
Rights Agent of all reasonable expenses incidental thereto, and
upon surrender to the Rights Agent and cancellation of the Rights
Certificate if mutilated, the Company will execute and deliver a
new Rights Certificate of like tenor to the Rights Agent for
countersignature and delivery to the registered owner in lieu of
the Rights Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration
Date of Rights.
(a) Subject to Section 7(e) hereof, the registered
holder of any Rights Certificate may exercise the Rights evidenced
thereby (except as otherwise provided herein including, without
limitation, the restrictions on exercisability set forth in Section
9(c), Section 11 (a)(iii) and Section 23(a) hereof) in whole or in
part at any time after the Distribution Date upon surrender of the
Rights Certificate, with the form of election to purchase and the
certificate on the reverse side thereof duly executed, to the
Rights Agent at the principal office or offices of the Rights Agent
designated for such purpose, together with payment of the aggregate
Purchase Price with respect to the total number of one one-hun-
dredths of a share of Preferred Stock (or other securities, cash or
other assets, as the case may be) as to which such surrendered
Rights are then exercisable, at or before the earliest of (i) the
close of business on January 31, 2005 (the "Final Expiration
Date"), (ii) the time at which the Rights are redeemed as provided
in Section 23 hereof (the earlier of (i) and (ii) being herein
referred to as the "Expiration Date") or (iii) the time at which
such Rights are exchanged as provided in Section 24 hereof.
(b) The Purchase Price for each one one-hundredths of a
share of Preferred Stock pursuant to the exercise of a Right shall
initially be $60.00, and shall be subject to adjustment from time
to time as provided in Sections 11 and 13(a) hereof and shall be
payable in accordance with paragraph (c) below.
(c) Upon receipt of a Rights Certificate representing
exercisable Rights, with the form of election to purchase and the
certificate on the reverse side thereof duly executed, accompanied
by payment, with respect to each right so exercised, of the Pur-
chase Price per one one-hundredth of a share of Preferred Stock (or
other shares, securities, cash or other assets, as the case may be)
to be purchased as set forth below and an amount equal to any
applicable transfer tax, the Rights Agent shall, subject to Section
20(k) hereof, thereupon promptly (i) (A) requisition from any
transfer agent of the shares of Preferred Stock (or make available,
if the Rights Agent is the transfer agent for such shares) certifi-
cates for the total number of one one-hundredths of a share of
Preferred Stock to be purchased and the Company hereby irrevocably
authorizes its transfer agent to comply with all such requests, or
(B) if the Company shall have elected to deposit the total number
of shares of Preferred Stock issuable upon exercise of the Rights
hereunder with a depositary agent, requisition from the depositary
agent depositary receipts representing such number of one one-hun-
dredths of a share of Preferred Stock as are to be purchased (in
which case certificates for the shares of Preferred Stock repre-
sented by such receipts shall be deposited by the transfer agent
with the depositary agent) and the Company will direct the deposi-
tary agent to comply with such request, (ii) requisition from the
Company the amount of cash, if any, to be paid in lieu of frac-
tional shares in accordance with Section 14 hereof, (iii) after
receipt of such certificates or depositary receipts, cause the same
to be delivered to or upon the order of the registered holder of
such Rights Certificate, registered in such name or names as may be
designated by such holder, and (iv) after receipt thereof, deliver
such cash, if any, to or upon the order of the registered holder of
such Rights Certificate. The payment of the Purchase Price (as
such amount may be reduced pursuant to Section 11(a)(iii) hereof)
may be made in cash or by certified bank check or bank draft pay-
able to the order of the Company. If the Company is obligated to
issue other securities (including Common Stock) of the Company, pay
cash and/or distribute other property pursuant to Section 11(a)
hereof, the Company will make all arrangements necessary so that
such other securities, cash and/or other property are available for
distribution by the Rights Agent, if and when appropriate. The
Company reserves the right to require before the occurrence of a
Triggering Event that, upon any exercise of Rights, a number of
Rights be exercised so that only whole shares of Preferred Stock
would be issued.
(d) In case the registered holder of any Rights Cer-
tificate shall exercise less than all the Rights evidenced thereby,
a new Rights Certificate evidencing Rights equivalent to the Rights
remaining unexercised shall be issued by the Rights Agent and
delivered to, or upon the order of, the registered holder of such
Rights Certificate, registered in such name or names as may be
designated by such holder, subject to the provisions of Section 14
hereof.
(e) Notwithstanding anything in this Agreement to the
contrary, from and after the first occurrence of a Section
11(a)(ii) Event, any Rights beneficially owned by (i) an Acquiring
Person, or an Associate or Affiliate of an Acquiring Person, (ii)
a direct or indirect transferee of an Acquiring Person (or of any
such Associate or Affiliate) who becomes a transferee after the
Acquiring Person becomes such, or (iii) a direct or indirect
transferee of an Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee before 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 a primary purpose or effect the avoidance
of this Section 7(e), shall become null and void without any
further action and no holder of such Rights shall have any rights
whatsoever with respect to such Rights, whether under any provision
of this Agreement or otherwise. The Company shall use all
reasonable efforts to insure that the provisions of this
Section 7(e) and Section 4(b) hereof are complied with, but shall
have no liability to any holder of Rights Certificates or other
Person as a result of its failure to make any determinations with
respect to an Acquiring Person or its Affiliates, Associates or
transferees hereunder.
(f) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Company shall be obli-
gated to undertake any action with respect to a registered holder
upon the occurrence of any purported exercise as set forth in this
Section 7 unless such registered holder shall have (i) completed
and signed the certificate contained in the form of election to
purchase set forth on the reverse side of the Rights Certificate
surrendered for such exercise, and (ii) provided such additional
evidence of the identity of the Beneficial Owner (or former Bene-
ficial Owner) or Affiliates or Associates thereof as the Company
shall reasonably request.
Section 8. Cancellation and Destruction of Rights Certifi-
cates. All Rights Certificates surrendered for the purpose of
exercise, transfer, split up, combination or exchange shall, if
surrendered to the Company or any of its agents, be delivered to
the Rights Agent for cancellation or in canceled form, or, if
surrendered to the Rights Agent, shall be canceled by it, and no
Rights Certificates shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Agreement.
The Company shall deliver to the Rights Agent for cancellation and
retirement, and the Rights Agent shall so cancel and retire, any
other Rights Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights Agent shall
deliver all canceled Rights Certificates to the Company, or shall,
at the written request of the Company, destroy such canceled Rights
Certificates, and in such case shall deliver a certificate of
destruction thereof to the Company.
Section 9. Reservation and Availability of Capital Stock.
(a) The Company covenants and agrees that it will cause
to be reserved and kept available out of its authorized and unis-
sued shares of Preferred Stock (and, following the occurrence of a
Triggering Event, out of its authorized and unissued shares of
Common Stock and/or other securities or out of its authorized and
issued shares held in its treasury), the number of shares of Pre-
ferred Stock (and, following the occurrence of a Triggering Event,
Common Stock and/or other securities) that, as provided in this
Agreement, including Section 11(a)(iii) hereof, will be sufficient
to permit the exercise in full of all outstanding Rights.
(b) So long as the shares of Preferred Stock (and, fol-
lowing the occurrence of a Triggering Event, Common Stock and/or
other securities) issuable and deliverable upon the exercise of the
Rights may be traded on any national securities exchange, the Com-
pany shall use its best efforts to cause, from and after such time
as the Rights become exercisable, all shares reserved for such
issuance to be traded on such exchange upon official notice of
issuance upon such exercise.
(c) The Company shall use its best efforts to (i) file,
as soon as practicable following the first occurrence of a Section
11(a)(ii) Event, or, if applicable, as soon as practicable follow-
ing the earliest date after the first occurrence of a Section
11(a)(ii) Event on which the consideration to be delivered by the
Company upon the exercise of the Rights has been determined in
accordance with Section 11(a)(iii) hereof, a registration statement
on an appropriate form under the Securities Act of 1933 (the
"Act"), with respect to the securities purchasable upon exercise of
the Rights, (ii) cause such registration statement to become effec-
tive as soon as practicable after such filing, and (iii) cause such
registration statement to remain effective (with a prospectus at
all times meeting the requirements of the Act) until the earlier of
(A) the date as of which the Rights are no longer exercisable for
such securities, and (B) the date of the expiration of the Rights.
The Company will also take such action as may be appropriate under,
or to ensure compliance with, the securities or "blue sky" laws of
the various states in connection with the exercisability of the
Rights. The Company may temporarily suspend, for a period of time
not to exceed ninety (90) days after the date set forth in clause
(i) of the first sentence of this Section 9(c), the exercisability
of the Rights in order to prepare and file such registration state-
ment and permit it to become effective. Upon any such suspension,
the Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended, as
well as a public announcement at such time as the suspension is no
longer in effect. In addition, if the Company shall determine that
a registration statement is required following the Distribution
Date, the Company may temporarily suspend the exercisability of the
Rights until such time as a registration statement has been de-
clared effective. Notwithstanding any provision of this Agreement
to the contrary, the Rights shall not be exercisable in any juris-
diction if the requisite qualification in such jurisdiction shall
not have been obtained, the exercise thereof shall not be permitted
under applicable law or a registration statement shall not have
been declared effective.
(d) The Company covenants and agrees that it will take
all such action as may be necessary to ensure that all one one-
hundredths of a share of Preferred Stock (and, following the
occurrence of a Triggering Event, Common Stock and/or other secu-
rities) delivered upon exercise of Rights shall, at the time of
delivery of the certificates for such shares (subject to payment of
the Purchase Price), be duly and validly authorized and issued and
fully paid and nonassessable.
(e) The Company further covenants and agrees that it
will pay when due and payable any and all federal and state trans-
fer taxes and charges which may be payable in respect of the is-
suance or delivery of the Rights Certificates and of any certifi-
cates for a number of one one-hundredths of a share of Preferred
Stock (or Common Stock and/or other securities, as the case may be)
upon the exercise of Rights. The Company shall not, however, be
required to pay any transfer tax which may be payable in respect of
any transfer or delivery of Rights Certificates to a Person other
than, or the issuance or delivery of a number of one one-hundredths
of a share of Preferred Stock (or Common Stock and/or other securi-
ties, as the case may be) in respect of a name other than that of,
the registered holder of the Rights Certificates evidencing Rights
surrendered for exercise or to issue or deliver any certificates
for a number of one one-hundredths of a share of Preferred Stock
(or Common Stock and/or other securities, as the case may be) in a
name other than that of the registered holder upon the exercise of
any Rights until such tax shall have been paid (any such tax being
payable by the holder of such Rights 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 Stock Record Date. Each person in
whose name any certificate for a number of one one-hundredths of a
share of Preferred Stock (or Common Stock and/or other securities,
as the case may be) is issued upon the exercise of Rights shall for
all purposes be deemed to have become the holder of record of such
fractional shares of Preferred Stock (or Common Stock and/or other
securities, as the case may be) represented thereby on, and such
certificate shall be dated, the date upon which the Rights Certifi-
cate evidencing such Rights was duly surrendered and payment of the
Purchase Price (and all applicable transfer taxes) was made; pro-
vided, however, that if the date of such surrender and payment is
a date upon which the Preferred Stock (or Common Stock and/or other
securities, as the case may be) transfer books of the Company are
closed, such Person shall be deemed to have become the record
holder of such shares (fractional or otherwise) on, and such cer-
tificate shall be dated, the next succeeding Business Day on which
the Preferred Stock (or Common Stock and/or other securities, as
the case may be) transfer books of the Company are open. Before
the exercise of the Rights evidenced thereby, the holder of a
Rights Certificate, as such, shall not be entitled to any rights of
a stockholder of the Company with respect to shares for which the
Rights shall be exercisable, including, without limitation, the
right to vote, to receive dividends or other distributions or to
exercise any preemptive rights, and shall not be entitled to
receive any notice of any proceedings of the Company, except as
provided herein.
Section 11. Adjustment of Purchase Price, Number and Kind of
Shares or Number of Rights. The Purchase Price, the number and
kind of shares covered by each Right and the number of Rights
outstanding are subject to adjustment from time to time as provided
in this Section 11.
(a)(i) If the Company shall at any time after the date
of this Agreement (A) declare a dividend on the Preferred Stock
payable in shares of Preferred Stock, (B) subdivide the outstanding
Preferred Stock, (C) combine the outstanding Preferred Stock into
a smaller number of shares, or (D) issue any shares of its capital
stock in a reclassification of the Preferred Stock (including any
such reclassification in connection with a consolidation or merger
in which the Company is the continuing or surviving corporation),
except as otherwise provided in this Section 11(a) and Section 7(e)
hereof, the Purchase Price in effect at the time of the record date
for such dividend or of the effective date of such subdivision,
combination or reclassification, and the number and kind of shares
of Preferred Stock or capital stock, as the case may be, issuable
on such date, shall be proportionately adjusted so that the holder
of any Right exercised after such time shall be entitled to
receive, upon payment of the Purchase Price then in effect, the
aggregate number and kind of shares of Preferred Stock or capital
stock, as the case may be, which, if such Right had been exercised
immediately before such date and at a time when the Preferred Stock
transfer books of the Company were open, he would have owned upon
such exercise and been entitled to receive by virtue of such divi-
dend, subdivision, combination or reclassification. If an event
occurs which would require an adjustment under both this Section
11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for
in this Section 11(a)(i) shall be in addition to, and shall be made
before, any adjustment required pursuant to Section 11(a)(ii)
hereof.
(ii) Subject to Section 24 of this Agreement, in the
event:
(A) any Acquiring Person or any Associate or Affiliate
of any Acquiring Person, at any time after the date of this
Agreement, directly or indirectly, (1) shall merge into the
Company or otherwise combine with the Company and the Company
shall be the continuing or surviving corporation of such
merger or combination and the Common Stock of the Company
shall remain outstanding and shall not, in whole or in part,
be changed into or exchanged for stock or other securities
of any other Person, cash or any other property, (2)
shall, in one transaction or a series of transactions,
transfer any assets to the Company or to any of its
Subsidiaries in exchange, in whole or in part, for shares
of any class of capital stock of the Company or any of its
Subsidiaries, or for securities exercisable for or
convertible into shares of any class of capital stock of
the Company or any of its Subsidiaries, or otherwise
obtain from the Company or any of its Subsidiaries, with
or without consideration, any additional shares of any
class of capital stock of the Company or any of its
Subsidiaries, or securities exercisable for or convertible
into shares of any class of capital stock of the
Company or any of its Subsidiaries (other than pursuant to a
pro rata distribution to all holders of Common Stock or upon
the exercise of Rights or the conversion of a convertible
security of the Company in accordance with its terms), (3)
shall sell, purchase, lease, exchange, mortgage, pledge,
transfer or otherwise acquire or dispose of, in one
transaction or a series of transactions, to, from or with
(as the case may be) the Company or any of its Subsidiaries,
assets (including securities) on terms and conditions less
favorable to the Company than the Company would be able to
obtain in arm's length negotiation with an unaffiliated third
party, other than pursuant to a transaction set forth in
Section 13(a) hereof, (4) shall sell, purchase, lease,
exchange, mortgage, pledge, transfer or otherwise acquire or
dispose of in one transaction or a series of transactions,
to, from or with (as the case may be) the Company or any of
the Company's Subsidiaries (other than incidental to the
lines of business, if any, engaged in as of the date hereof
between the Company and such Acquiring Person or Associate
or Affiliate) assets having an aggregate fair market value
of more than $1,000,000, other than pursuant to a
transaction set forth in Section 13(a) hereof, (5) shall
receive any compensation from the Company or any of the
Company's Subsidiaries other than compensation as a
director or for full-time employment as a regular employee
in either case at rates in accordance with the Company's
(or its Subsidiaries') past practices, or (6) shall
receive the benefit, directly or indirectly (except
proportionately as a stockholder and except if resulting
from a requirement of law or governmental regulation), of
any loans, advances, guarantees, pledges or other financial
assistance provided by the Company or any of its Subsidiaries,
or
(B) any Person (other than the Company, any Subsidiary
of the Company, any employee benefit plan of the Company or of
any Subsidiary of the Company, or any Person or entity
organized, appointed or established by the Company for or
pursuant to the terms of any such plan), alone or together
with its Affiliates and Associates, shall, at any time after
the Rights Dividend Declaration Date, become the Beneficial
Owner of 30% or more of the shares of Common Stock then
outstanding, unless the event causing the 30% threshold to be
crossed is a transaction set forth in Section 13(a) hereof,
or is an acquisition of shares of Common Stock pursuant to a
tender offer or an exchange offer for all outstanding shares
of Common Stock at a price and on terms determined by at least
a majority of the Continuing Directors who are not officers of
the Company, after receiving advice from one or more
investment banking firms, to be (a) at a price that is fair to
stockholders (taking into account all factors which the
Continuing Directors deem relevant including, without
limitation, prices which would reasonably be achieved if the
Company or its assets were sold on an orderly basis designed
to realize maximum value) and (b) otherwise in the best
interests of the Company and its stockholders, or
(C) during such time as there is an Acquiring Person,
there shall be any reclassification of securities (including
any reverse stock split), or recapitalization of the Company,
or any merger or consolidation of the Company with any of its
Subsidiaries or any other transaction or series of
transactions involving the Company or any of its Subsidiaries,
other than a transaction or transactions to which the
provisions of Section 13(a) apply (whether or not with or into
or otherwise involving an Acquiring Person), which has the
effect, directly or indirectly, of increasing by more than 1%
the proportionate share of the outstanding shares of any class
of equity securities of the Company or any of its Subsidiaries
which is directly or indirectly beneficially owned by any
Acquiring Person or any Associate or Affiliate of any
Acquiring Person.
then promptly following the first occurrence of a Section 11(a)(ii)
Event, proper provision shall be made so that each holder of a
Right (except as provided below and in Section 7(e) hereof) shall
thereafter have the right to receive, upon exercise thereof at the
then current Purchase Price in accordance with the terms of this
Agreement, in lieu of a number of one one-hundredths of a share of
Preferred Stock, such number of shares of Common Stock of the Com-
pany as shall equal the result obtained by (x) multiplying the then
current Purchase Price by the then number of one one-hundredths of
a share of Preferred Stock for which a Right was exercisable
immediately before the first occurrence of a Section 11(a)(ii)
Event, and (y) dividing that product (which, following such first
occurrence, shall thereafter be referred to as the "Purchase Price"
for each Right and for all purposes of this Agreement) by 50% of
the current market price (as determined pursuant to Section
11(d)(i) hereof) per share of Common Stock on the date of such
first occurrence (such number of shares, the "Adjustment Shares").
(iii) If the number of shares of Common Stock which
are authorized by the Company's Articles of Incorporation but not
outstanding or reserved for issuance for purposes other than upon
exercise of the Rights are not sufficient to permit the exercise in
full of the Rights in accordance with the foregoing subparagraph
(ii) of this Section 11(a), the Company shall, to the extent per-
mitted by applicable law and regulation: (A) determine the excess
of (l) the value of the Adjustment Shares issuable upon the exer-
cise of a Right (the "Current Value") over (2) the Purchase Price
(such excess, the "Spread"), and (B) with respect to each Right,
make adequate provision to substitute for the Adjustment Shares,
upon payment of the applicable Purchase Price, (1) cash, (2) a
reduction in the Purchase Price, (3) Common Stock or other equity
securities of the Company (including, without limitation, shares,
or units of shares, of preferred stock which the Board of Directors
of the Company has deemed to have the same value as shares of Com-
mon Stock (such shares of preferred stock, "common stock equiva-
lents")), (4) debt securities of the Company, (5) other assets, or
(6) any combination of the foregoing, having an aggregate value
equal to the Current Value, where such aggregate has been deter-
mined by the Board of Directors of the Company based upon the
advice of an investment banking firm selected by the Board of
Directors of the Company; provided, however, if the Company shall
not have made adequate provision to deliver value pursuant to
clause (B) above within thirty (30) days following the later of (x)
the first occurrence of a Section 11(a)(ii) Event and (y) the date
on which the Company's rights of redemption pursuant to Section
23(a) expires (the later of (x) and (y) being referred to herein as
the "Section 11(a)(ii) Trigger Date"), then the Company shall be
obligated to deliver, upon the surrender for exercise of a Right
and without requiring payment of the Purchase Price, shares of
Common Stock (to the extent available) and then, if necessary,
cash, which shares and/or cash have an aggregate value equal to the
Spread. If the Board of Directors of the Company shall determine
in good faith that it is likely that sufficient additional shares
of Common Stock could be authorized for issuance upon exercise in
full of the Rights, the thirty (30) day period set forth above may
be extended to the extent necessary, but not more than ninety (90)
days after the Section 11(a)(ii) Trigger Date, in order that the
Company may seek shareholder approval for the authorization of such
additional shares (such period, as it may be extended, the "Substi-
tution Period"). To the extent that the Company determines that
some action need be taken pursuant to the first and/or second sen-
tences of this Section 11(a)(iii), the Company (x) shall provide,
subject to Section 7(e) hereof, that such action shall apply uni-
formly to all outstanding Rights, and (y) may suspend the exercis-
ability of the Rights until the expiration of the Substitution
Period in order to seek any authorization of additional shares
and/or to decide the appropriate form of distribution to be made
pursuant to such first sentence and to determine the value thereof.
In the event of any such suspension, the Company shall issue a
public announcement stating that the exercisability of the Rights
has been temporarily suspended, as well as a public announcement at
such time as the suspension is no longer in effect. For purposes
of this Section 11(a)(iii), the value of the Common Stock shall be
the current market price (as determined pursuant to Section 11(d)
hereof) per share of the Common Stock on the Section 11(a)(ii)
Trigger Date and the value of any "common stock equivalent" shall
be deemed to have the same value as the Common Stock on such date.
(b) If the Company shall fix a record date for the
issuance of rights, options or warrants to all holders of Preferred
Stock entitling them to subscribe for or purchase (for a period
expiring within forty-five (45) calendar days after such record
date) Preferred Stock (or shares having the same rights, privileges
and preferences as the shares of Preferred Stock ("equivalent pre-
ferred stock")) or securities convertible into Preferred Stock or
equivalent preferred stock at a price per share of Preferred Stock
or per share of equivalent preferred stock (or having a conversion
price per share, if a security convertible into Preferred Stock or
equivalent preferred stock) less than the current market price (as
determined pursuant to Section 11(d) hereof) per share of Preferred
Stock on such record date, the Purchase Price to be in effect after
such record date shall be determined by multiplying the Purchase
Price in effect immediately before such record date by a fraction,
the numerator of which shall be the number of shares of Preferred
Stock outstanding on such record date, plus the number of shares of
Preferred Stock which the aggregate offering price of the total
number of shares of Preferred Stock and/or equivalent preferred
stock so to be offered (and/or the aggregate initial conversion
price of the convertible securities so to be offered) would pur-
chase at such current market price, and the denominator of which
shall be the number of shares of Preferred Stock outstanding on
such record date, plus the number of additional shares of Preferred
Stock and/or equivalent preferred stock to be offered for subscrip-
tion or purchase (or into which the convertible securities so to be
offered are initially convertible). In case such subscription
price may be paid by delivery of consideration part or all of which
may be in a form other than cash, the value of such consideration
shall be as determined in good faith by the Board of Directors of
the Company, whose determination shall be described in a statement
filed with the Rights Agent and shall be binding on the Rights
Agent and the holders of the Rights. Shares of Preferred Stock
owned by or held for the account of the Company shall not be deemed
outstanding for the purpose of any such computation. Such adjust-
ment shall be made successively whenever such a record date is
fixed, and in the event that such rights or warrants are not so
issued, the Purchase Price shall be adjusted to be the Purchase
Price which would then be in effect if such record date had not
been fixed.
(c) If the Company shall fix a record date for a distri-
bution to all holders of Preferred Stock (including any such dis-
tribution made in connection with a consolidation or merger in
which the Company is the continuing corporation) of evidences of
indebtedness, cash (other than a regular quarterly cash dividend
out of the earnings or retained earnings of the Company), assets
(other than a dividend payable in Preferred Stock, but including
any dividend payable in stock other than Preferred Stock) or sub-
scription rights or warrants (excluding those referred to in Sec-
tion 11(b) hereof), the Purchase Price to be in effect after such
record date shall be determined by multiplying the Purchase Price
in effect immediately before such record date by a fraction, the
numerator of which shall be the current market price (as determined
pursuant to Section 11(d) hereof) per share of Preferred Stock on
such record date, less the fair market value (as determined in good
faith by the Board of Directors of the Company, whose determination
shall be described in a statement filed with the Rights Agent) of
the portion of the cash, assets or evidences of indebtedness so to
be distributed or of such subscription rights or warrants applic-
able to a share of Preferred Stock and the denominator of which
shall be such current market price (as determined pursuant to Sec-
tion 11(d) hereof) per share of Preferred Stock. Such adjustments
shall be made successively whenever such a record date is fixed,
and if such distribution is not so made, the Purchase Price shall
be adjusted to be the Purchase Price which would have been in
effect if such record date has not been fixed.
(d)(i) For the purpose of any computation hereunder,
other than computations made pursuant to Section 11(a)(iii) hereof,
the "current market price" per share of Common Stock on any date
shall be deemed to be the average of the daily closing prices per
share of such Common Stock for the thirty (30) consecutive Trading
Days (as such term is hereinafter defined) immediately before such
date, and for purposes of computations made pursuant to Section
11(a)(iii) hereof, the "current market price" per share of Common
Stock on any date shall be deemed to be the average of the daily
closing prices per share of such Common Stock for the ten (10)
consecutive Trading Days immediately following such date; provided,
however, that if the current market price per share of the Common
Stock is determined during a period following the announcement by
the issuer of such Common Stock of (A) a dividend or distribution
on such Common Stock payable in shares of such Common Stock or
securities convertible into shares of such Common Stock (other than
the Rights), or (B) any subdivision, combination or
reclassification of such Common Stock, and the ex-dividend date for
such dividend or distribution, or the record date for such sub-
division, combination or reclassification shall not have occurred
before the commencement of the requisite thirty (30) Trading Day or
ten (10) Trading Day period, as set forth above, then, and in each
such case, the "current market price" shall be properly adjusted to
take into account ex-dividend trading. The closing price for each
day shall be the last sale price, regular way, or, in case no such
sale takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in the prin-
cipal consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock Ex-
change or, if the shares of Common Stock are not listed or admitted
to trading on the New York Stock Exchange, as reported in the
principal consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on
which the shares of Common Stock are listed or admitted to trading
or, if the shares of Common Stock are not listed or admitted to
trading on any national securities exchange, the last quoted price
or, if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated Quotation System
("NASDAQ") or such other system then in use, or, if on any such
date the shares of Common Stock are not quoted by any such organi-
zation, the average of the closing bid and asked prices as fur-
nished by a professional market maker making a market in the Common
Stock selected by the Board of Directors of the Company. If on any
such date no market maker is making a market in the Common Stock,
the fair value of such shares on such date as determined in good
faith by the Board of Directors of the Company shall be used. The
term "Trading Day" shall mean a day on which the principal national
securities exchange on which the shares of Common Stock are listed
or admitted to trading is open for the transaction of business or,
if the shares of Common Stock are not listed or admitted to trading
on any national securities exchange, a Business Day. If the Common
Stock is not publicly held or not so listed or traded, "current
market price" per share shall mean the fair value per share as
determined in good faith by the Board of Directors of the Company,
whose determination shall be described in a statement filed with
the Rights Agent and shall be conclusive for all purposes.
(ii) For the purpose of any computation hereunder,
the "current market price" per share of Preferred Stock shall be
determined in the same manner as set forth above for the Common
Stock in clause (i) of this Section 11(d) (other than the last
sentence thereof). If the current market price per share of Pre-
ferred Stock cannot be determined in the manner provided above or
if the Preferred Stock is not publicly held or listed or traded in
a manner described in clause (i) of this Section 11(d), the "cur-
rent market price" per share of Preferred Stock shall be conclu-
sively deemed to be an amount equal to 100 (as such number may be
appropriately adjusted for such events as stock splits, stock
dividends and recapitalizations with respect to the Common Stock
occurring after the date of this Agreement) multiplied by the
current market price per share of the Common Stock. If neither the
Common Stock nor the Preferred Stock is publicly held or so listed
or traded, "current market price" per share of the Preferred Stock
shall mean the fair value per share as determined in good faith by
the Board of Directors of the Company, whose determination shall be
described in a statement filed with the Rights Agent and shall be
conclusive for all purposes. For all purposes of this Agreement,
the "current market price" of one one-hundredth of a share of
Preferred Stock shall be equal to the "current market price" of one
share of Preferred Stock divided by 100.
(e) Anything herein to the contrary notwithstanding, no
adjustment in the Purchase Price shall be required unless such
adjustment would require an increase or decrease of at least one
percent (1%) in the Purchase Price; provided, however, that any
adjustments which by reason of this Section 11(e) are not required
to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section 11
shall be made to the nearest cent or to the nearest ten-thousandth
of a share of Common Stock or other share or one-millionth of a
share of Preferred Stock, as the case may be. Notwithstanding the
first sentence of this Section 11(e), any adjustment required by
this Section 11 shall be made no later than the earlier of (i)
three (3) years from the date of the transaction which mandates
such adjustment, or (ii) the Expiration Date.
(f) If as a result of an adjustment made pursuant to
Section 11(a)(ii) or Section 13(a) hereof, the holder of any Right
thereafter exercised shall become entitled to receive any shares of
capital stock other than Preferred Stock, thereafter the number of
such other shares so receivable upon exercise of any Right and the
Purchase Price thereof shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the Preferred Stock contained in
Sections 11(a), (b), (c), (e), (g), (h), (i), (j), (k) and (m), and
the provisions of Sections 7, 9, 10, 13 and 14 hereof with respect
to the Preferred Stock shall apply on like terms to any such other
shares.
(g) All Rights originally issued by the Company subse-
quent to any adjustment made to the Purchase Price hereunder shall
evidence the right to purchase, at the adjusted Purchase Price, the
number of one one-hundredths of a share of Preferred Stock purchas-
able from time to time hereunder upon exercise of the Rights, all
subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its election
as provided in Section 11(i), upon each adjustment of the Purchase
Price as a result of the calculations made in Sections 11(b) and
(c), each Right outstanding immediately before the making of such
adjustment shall thereafter evidence the right to purchase, at the
adjusted Purchase Price, that number of one one-hundredths of a
share of Preferred Stock (calculated to the nearest one-millionth)
obtained by (i) multiplying (x) the number of one one-hundredths of
a share covered by a Right immediately before this adjustment, by
(y) the Purchase Price in effect immediately before such adjustment
of the Purchase Price, and (ii) dividing the product so obtained by
the Purchase Price in effect immediately after such adjustment of
the Purchase Price.
(i) The Company may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of Rights, in
lieu of any adjustment in the number of one one-hundredths of a
share of Preferred Stock purchasable upon the exercise of a Right.
Each of the Rights outstanding after the adjustment in the number
of Rights shall be exercisable for the number of one one-hundredths
of a share of Preferred Stock for which a Right was exercisable
immediately before such adjustment. Each Right held of record
before such adjustment of the number of Rights shall become that
number of Rights (calculated to the nearest one ten-thousandth)
obtained by dividing the Purchase Price in effect immediately
before adjustment of the Purchase Price by the Purchase Price in
effect immediately after adjustment of the Purchase Price. The
Company shall make a public announcement of its election to adjust
the number of Rights, indicating the record date for the adjust-
ment, and, if known at the time, the amount of the adjustment to be
made. This record date may be the date on which the Purchase Price
is adjusted or any day thereafter, but, if the Rights Certificates
have been issued, shall be at least ten (10) days later than the
date of the public announcement. If Rights Certificates have been
issued, upon each adjustment of the number of Rights pursuant to
this Section 11(i), the Company shall, as promptly as practicable,
cause to be distributed to holders of record of Rights Certificates
on such record date Rights Certificates evidencing, subject to Sec-
tion 14 hereof, the additional Rights to which such holders shall
be entitled as a result of such adjustment, or, at the option of
the Company, shall cause to be distributed to such holders of
record in substitution and replacement for the Rights Certificates
held by such holders before the date of adjustment, and upon sur-
render thereof, if required by the Company, new Rights Certificates
evidencing all the Rights to which such holders shall be entitled
after such adjustment. Rights Certificates so to be distributed
shall be issued, executed and countersigned in the manner provided
for herein (and may bear, at the option of the Company, the ad-
justed Purchase Price) and shall be registered in the names of the
holders of record of Rights Certificates on the record date
specified in the public announcement.
(j) Irrespective of any adjustment or change in the
Purchase Price or the number of one one-hundredths of a share of
Preferred Stock issuable upon the exercise of the Rights, the
Rights Certificates theretofore and thereafter issued may continue
to express the Purchase Price per one one-hundredth of a share and
the number of one one-hundredths of a share which were expressed in
the initial Rights Certificates issued hereunder.
(k) Before taking any action that would cause an adjust-
ment reducing the Purchase Price below the then stated value, if
any, of the number of one one-hundredths of a share of Preferred
Stock issuable upon exercise of the Rights, the Company shall take
any corporate action which may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue
fully paid and nonassessable such number of one one-hundredths of
a share of Preferred Stock at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require
that an adjustment in the Purchase Price be made effective as of a
record date for a specified event, the Company may elect to defer
until the occurrence of such event the issuance to the holder of
any Right exercised after such record date the number of one one-
hundredths of a share of Preferred Stock and other capital stock or
securities of the Company, if any, issuable upon such exercise over
and above the number of one one-hundredths of a share of Preferred
Stock and other capital stock or securities of the Company, if any,
issuable upon such exercise on the basis of the Purchase Price in
effect before such adjustment; provided, however, that the Company
shall deliver to such holder a due bill or other appropriate in-
strument evidencing such holder's right to receive such additional
shares (fractional or otherwise) or securities upon the occurrence
of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary not-
withstanding, the Company shall be entitled to make such reductions
in the Purchase Price, in addition to those adjustments expressly
required by this Section 11, as and to the extent that in their
good faith judgment the Board of Directors of the Company shall
determine to be advisable in order that any (i) consolidation or
subdivision of the Preferred Stock, (ii) issuance wholly for cash
of any shares of Preferred Stock at less than the current market
price, (iii) issuance wholly for cash of shares of Preferred Stock
or securities which by their terms are convertible into or
exchangeable for shares of Preferred Stock, (iv) stock dividends or
(v) issuance of rights, options or warrants referred to in this
Section 11, hereafter made by the Company to holders of its
Preferred Stock shall not be taxable to such stockholders.
(n) The Company covenants and agrees that it shall not,
at any time after the Distribution Date, (i) consolidate with any
other Person (other than a Subsidiary of the Company in a transac-
tion which complies with Section 11(o) hereof), (ii) merge with or
into any other Person (other than a Subsidiary of the Company in a
transaction which complies with Section 11(o) hereof), or (iii)
sell or transfer (or permit any Subsidiary to sell or transfer), in
one transaction, or a series of related transactions, assets or
earning power aggregating more than 50% of the assets or earning
power of the Company and its Subsidiaries (taken as a whole) to any
other Person or Persons (other than the Company and/or any of its
Subsidiaries in one or more transactions each of which complies
with Section 11(o) thereof), if (x) at the time of or immediately
after such consolidation, merger or sale there are any rights, war-
rants or other instruments or securities outstanding or agreements
in effect which would substantially diminish or otherwise eliminate
the benefits intended to be afforded by the Rights or (y) before,
simultaneously with or immediately after such consolidation, merger
or sale, the shareholders of the Person who constitutes, or would
constitute, the "Principal Party" for purposes of Section 13(a)
hereof shall have received a distribution of Rights previously
owned by such Person or any of its Affiliates and Associates.
(o) The Company covenants and agrees that, after the
Distribution Date, it will not, except as permitted by Section 23
or Section 27 hereof, take (or permit any Subsidiary to take) any
action if at the time such action is taken it is reasonably fore-
seeable that such action will diminish substantially or otherwise
eliminate the benefits intended to be afforded by the Rights.
(p) Anything in this Agreement to the contrary not-
withstanding, if the Company shall at any time after the Rights
Dividend Declaration Date and before the Distribution Date (i)
declare a dividend on the outstanding shares of Common Stock pay-
able in shares of Common Stock, or (ii) subdivide the outstanding
shares of Common Stock, or (iii) combine the outstanding shares of
Common Stock into a smaller number of shares, the number of Rights
associated with each share of Common Stock then outstanding, or
issued or delivered hereafter but before the Distribution Date,
shall be proportionately adjusted so that the number of Rights
thereafter associated with each share of Common Stock following any
such event shall equal the result obtained by multiplying the
number of Rights associated with each share of Common Stock immedi-
ately before such event by a fraction the numerator of which shall
be the total number of shares of Common Stock outstanding immedi-
ately before the occurrence of the event and the denominator of
which shall be the total number of shares of Common Stock outstand-
ing immediately following the occurrence of such event.
Section 12. Certificate of Adjusted Purchase Price or Number
of Shares. Whenever an adjustment is made as provided in Section
11 and Section 13 hereof, the Company shall (a) promptly prepare a
certificate setting forth such adjustment and a brief statement of
the facts accounting for such adjustment, (b) promptly file with
the Rights Agent, and with each transfer agent for the Preferred
Stock and the Common Stock, a copy of such certificate, and (c)
mail a brief summary thereof to each holder of a Rights Certificate
(or, if before the Distribution Date, to each holder of a certifi-
cate representing shares of Common Stock) in accordance with Sec-
tion 26 hereof. The Rights Agent shall be fully protected in rely-
ing on any such certificate and on any adjustment therein contained
and shall not be deemed to have knowledge of such adjustment unless
and until it shall have received such certificate.
Section 13. Consolidation, Merger or Sale or Transfer of
Assets or Earning Power.
(a) If, following the Stock Acquisition Date, directly
or indirectly, (x) the Company shall consolidate with, or merge
with and into, any other Person (other than a Subsidiary of the
Company in a transaction which complies with Section 11(o) hereof),
and the Company shall not be the continuing or surviving corpora-
tion of such consolidation or merger, (y) any Person (other than a
Subsidiary of the Company in a transaction which complies with
Section 11(o) hereof) shall consolidate with, or merge with or
into, the Company, and the Company shall be the continuing or
surviving corporation of such consolidation or merger and, in
connection with such consolidation or merger, all or part of the
outstanding shares of Common Stock shall be changed into or
exchanged for stock or other securities of any other Person or cash
or any other property, or (z) the Company shall sell or otherwise
transfer (or one or more of its Subsidiaries shall sell or other-
wise transfer), in one transaction or a series of related trans-
actions, assets or earning power aggregating more than 50% of the
assets or earning power of the Company and its Subsidiaries (taken
as a whole) to any Person or Persons (other than the Company or any
Subsidiary of the Company in one or more transactions each of which
complies with Section 11(o) hereof), then, and in each such case
(except as may be contemplated by Section 13(d) hereof), proper
provision shall be made so that: (i) each holder of a Right,
except as provided in Section 7(e) hereof, shall thereafter have
the right to receive, upon the exercise thereof at the then current
Purchase Price in accordance with the terms of this Agreement, such
number of validly authorized and issued, fully paid, non-assessable
and freely tradeable shares of Common Stock of the Principal Party
(as such term is hereinafter defined), not subject to any liens,
encumbrances, rights of first refusal or other adverse claims, as
shall be equal to the result obtained by (1) multiplying the then
current Purchase Price by the number of one one-hundredths of a
share of Preferred Stock for which a Right is exercisable
immediately before the first occurrence of Section 13 Event (or, if
a Section 11(a)(ii) Event has occurred before the first occurrence
of a Section 13 Event, multiplying the number of such one one-
hundredths of a share of Preferred Stock for which a Right was
exercisable immediately before the first occurrence of a Section
11(a)(ii) Event by the Purchase Price in effect immediately before
such first occurrence), and dividing that product (which, following
the first occurrence of a Section 13 Event, shall be referred to as
the "Purchase Price" for each Right and for all purposes of this
Agreement) by (2) 50% of the current market price (determined
pursuant to Section 11(d)(i) hereof) per share of the Common Stock
of such Principal Party on the date of consummation of such
Section 13 Event; (ii) such Principal Party shall thereafter be
liable for, and shall assume, by virtue of such Section 13 Event,
all the obligations and duties of the Company pursuant to this
Agreement; (iii) the term "Company" shall thereafter be deemed to
refer to such Principal Party, it being specifically intended that
the provisions of Section 11 hereof shall apply only to such
Principal Party following the first occurrence of a Section 13
Event; (iv) such Principal Party shall take such steps (including,
but not limited to, the reservation of a sufficient number of
shares of its Common Stock) in connection with the consummation of
any such transaction as may be necessary to assure that the
provisions hereof shall thereafter be applicable, as nearly as
reasonably may be, in relation to its shares of Common Stock
thereafter deliverable upon the exercise of the Rights; and (v) the
provisions of Section 11(a)(ii) hereof shall be of no effect
following the first occurrence of any Section 13 Event.
(b) "Principal Party" shall mean
(i) in the case of any transaction
described in clause (x) or (y) of the first
sentence of Section 13(a), the Person that is
the issuer of any securities into which shares
of Common Stock of the Company are converted
in such merger or consolidation, and if no
securities are so issued, the Person that is
the other party to such merger or consolida-
tion; and
(ii) in the case of any transaction
described in clause (z) of the first sentence
of Section 13(a), the Person that is the party
receiving the greatest portion of the assets
or earning power transferred pursuant to such
transaction or transactions;
provided, however, that in any such case, (1) if the Common Stock
of such Person is not at such time and has not been continuously
over the preceding twelve (12) month period registered under Sec-
tion 12 of the Exchange Act, and such Person is a direct or indi-
rect Subsidiary of another Person the Common Stock of which is and
has been so registered, "Principal Party" shall refer to such other
Person; and (2) in case such Person is a Subsidiary, directly or
indirectly, of more than one Person, the Common Stocks of two or
more of which are and have been so registered, "Principal Party"
shall refer to whichever of such Persons is the issuer of the
Common Stock having the greatest aggregate market value.
(c) The Company shall not consummate any such consoli-
dation, merger, sale or transfer unless the Principal Party shall
have a sufficient number of authorized shares of its Common Stock
which have not been issued or reserved for issuance to permit the
exercise in full of the Rights in accordance with this Section 13
and unless prior thereto the Company and such Principal Party shall
have executed and delivered to the Rights Agent a supplemental
agreement providing for the terms set forth in paragraphs (a) and
(b) of this Section 13 and further providing that, as soon as
practicable after the date of any consolidation, merger or sale of
assets mentioned in paragraph (a) of this Section 13, the Principal
Party will
(i) prepare and file a registration
statement under the Act, with respect to the
Rights and securities purchasable upon exer-
cise of the Rights on an appropriate form, and
will use its best efforts to cause such regis-
tration statement to (A) become effective as
soon as practicable after such filing and (B)
remain effective (with a prospectus at all
times meeting the requirements of the Act)
until the Expiration Date; and
(ii) will deliver to holders of the
Rights historical financial statements for the
Principal Party and each of its Affiliates
which comply in all respects with the require-
ments for registration on Form 10 under the
Exchange Act.
The provisions of this Section 13 shall similarly apply to suc-
cessive mergers or consolidations or sales or other transfers. If
a Section 13 Event shall occur at any time after the occurrence of
a Section 11(a)(ii) Event, the Rights which have not theretofore
been exercised shall thereafter become exercisable in the manner
described in Section 13(a).
(d) Notwithstanding anything in this Agreement to the
contrary, Section 13 shall not be applicable to a transaction
described in subparagraphs (x) and (y) of Section 13(a) if (i) such
transaction is consummated with a Person or Persons who acquired
shares of Common Stock pursuant to a tender offer or exchange offer
for all outstanding shares of Common Stock which complies with the
provisions of Section 11(a)(ii)(B) hereof regarding the determina-
tion of the Continuing Directors who are not officers of the Com-
pany (or a wholly owned subsidiary of any such Person or Persons),
(ii) the price per share of Common Stock offered in such
transaction is not less than the price per share of Common Stock
paid to all holders of shares of Common Stock whose shares were
purchased pursuant to such tender offer or exchange offer, and
(iii) the form of consideration being offered to the remaining
holders of shares of Common Stock pursuant to such transaction is
the same as the form of consideration paid pursuant to such tender
offer or exchange offer. Upon consummation of any such transaction
contemplated by this Section 13(d), all Rights hereunder shall
expire.
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions
of Rights, except before the Distribution Date as provided in Sec-
tion 11(p) hereof, or to distribute Rights Certificates which evi-
dence fractional Rights. In lieu of such fractional Rights, there
shall be paid to the registered holders of the Rights Certificates
with regard to which such fractional Rights would otherwise be
issuable, an amount in cash equal to the same fraction of the cur-
rent market value of a whole Right. For purposes of this Section
14(a), the current market value of a whole Right shall be the
closing price of the Rights for the Trading Day immediately before
the date on which such fractional Rights would have been otherwise
issuable. The closing price of the Rights for any day shall be the
last sale price, regular way, or, in case no such sale takes place
on such day, the average of the closing bid and asked prices, regu-
lar way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange or, if the
Rights are not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal
national securities exchange on which the Rights are listed or
admitted to trading, or if the Rights are not listed or admitted to
trading on any national securities exchange, the last quoted price
or, if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by NASDAQ or
such other system then in use or, if on any such date the Rights
are not quoted by any such organization, the average of the closing
bid and asked prices as furnished by a professional market maker
making a market in the Rights selected by the Board of Directors
of the Company. If on any such date no such market maker is making
a market in the Rights, the fair value of the Rights on such date
as determined in good faith by the Board of Directors of the
Company shall be used.
(b) The Company shall not be required to issue fractions
of shares of Preferred Stock (other than fractions which are inte-
gral multiples of one one-hundredth of a share of Preferred Stock)
upon exercise of the Rights or to distribute certificates which
evidence fractional shares of Preferred Stock (other than fractions
which are integral multiples of one one-hundredth of a share of
Preferred Stock). In lieu of fractional shares of Preferred Stock
that are not integral multiples of one one-hundredth of a share of
Preferred Stock, the Company may pay to the registered holders of
Rights Certificates at the time such Rights are exercised as
herein provided an amount in cash equal to the same fraction of the
current market value of one one-hundredth of a share of Preferred
Stock. For purposes of this Section 14(b), the current market
value of one one-hundredth of a share of Preferred Stock shall be
one one-hundredth of the closing price of a share of Preferred
Stock (as determined pursuant to Section 11(d)(ii) hereof) for the
Trading Day immediately before the date of such exercise.
(c) Following the occurrence of a Triggering Event, the
Company shall not be required to issue fractions of shares of
Common Stock upon exercise of the Rights or to distribute certif-
icates which evidence fractional shares of Common Stock. In lieu
of fractional shares of Common Stock, the Company may pay to the
registered holders of Rights Certificates at the time such Rights
are exercised as herein provided an amount in cash equal to the
same fraction of the current market value of one (1) share of
Common Stock. For purposes of this Section 14(c), the current
market value of one share of Common Stock shall be the closing
price of one share of Common Stock (as determined pursuant to
Section 11(d)(i) hereof) for the Trading Day immediately before the
date of such exercise.
(d) The holder of a Right by the acceptance of the
Rights expressly waives his right to receive any fractional Rights
or any fractional shares upon exercise of a Right, except as
permitted by this Section 14.
Section 15. Rights of Action. All rights of action in
respect of this Agreement, other than rights of action vested in
the Rights Agent pursuant to Section 18 hereof, are vested in the
respective registered holders of the Rights Certificates (and,
before the Distribution Date, the registered holders of the Common
Stock); and any registered holder of any Rights Certificate (or,
before the Distribution Date, of the Common Stock), without the
consent of the Rights Agent or of the holder of any other Rights
Certificate (or, before the Distribution Date, of the Common
Stock), may, in his own behalf and for his own benefit, enforce,
and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise act in respect of, his
right to exercise the Rights evidenced by such Rights Certificate
in the manner provided in such Rights Certificate and in this
Agreement. Without limiting the foregoing or any remedies avail-
able to the holders of Rights, it is specifically acknowledged that
the holders of Rights would not have an adequate remedy at law for
any breach of this Agreement and shall be entitled to specific per-
formance of the obligations hereunder and injunctive relief against
actual or threatened violations of the obligations hereunder of any
Person subject to this Agreement.
Section 16. Agreement of Rights Holders. Every holder of a
Right by accepting the same consents and agrees with the Company
and the Rights Agent and with every other holder of a Right that:
(a) before the Distribution Date, the Rights will be
transferable only in connection with the transfer of Common Stock;
(b) after the Distribution Date, the Rights Certificates
are transferable only on the registry books of the Rights Agent if
surrendered at the principal office or offices of the Rights Agent
designated for such purposes, duly endorsed or accompanied by a
proper instrument of transfer and with the appropriate forms and
certificates fully executed;
(c) subject to Section 6(a) and Section 7(f) hereof, the
Company and the Rights Agent may deem and treat the person in whose
name a Rights Certificate (or, before the Distribution Date, the
associated Common Stock certificate) is registered as the absolute
owner thereof and of the Rights evidenced thereby (notwithstanding
any notations of ownership or writing on the Rights Certificates or
the associated Common Stock certificate made by anyone other than
the Company or the Rights Agent) for all purposes whatsoever, and
neither the Company nor the Rights Agent, subject to the last
sentence of Section 7(e) hereof, shall be required to be affected
by any notice to the contrary; and
(d) notwithstanding anything in this Agreement to the
contrary, neither the Company nor the Rights Agent shall have any
liability to any holder of a Right or other Person as a result of
its inability to perform any of its obligations under this Agree-
ment by reason of any preliminary or permanent injunction or other
order, decree or ruling issued by a court of competent jurisdiction
or by a governmental, regulatory or administrative agency or com-
mission, or any statute, rule, regulation or executive order
promulgated or enacted by any governmental authority, prohibiting
or otherwise restraining performance of such obligation; provided,
however, the Company must use its best efforts to have any such
order, decree or ruling lifted or otherwise overturned as soon as
possible.
Section 17. Rights Certificate Holder Not Deemed a Stock-
holder. No holder, as such, of any Rights Certificate shall be
entitled to vote, receive dividends or be deemed for any purpose
the holder of the number of one one-hundredths of a share of Pre-
ferred Stock or any other securities of the Company which may at
any time be issuable upon the exercise of the Rights represented
thereby, nor shall anything contained herein or in any Rights
Certificate be construed to confer upon the holder of any Rights
Certificate, as such, any of the rights of a stockholder of the
Company or any right to vote for the election of directors or upon
any matter submitted to stockholders at any meeting thereof, or to
give or withhold consent to any corporate action, or to receive
notice of meetings or other actions affecting stockholders (except
as provided in Section 25 hereof), or to receive dividends or sub-
scription rights, or otherwise, until the Right or Rights evidenced
by such Rights Certificate shall have been exercised in accordance
with the provisions hereof.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the Rights Agent rea-
sonable compensation for all services rendered by it hereunder and,
from time to time, on demand of the Rights Agent, its reasonable
expenses and counsel fees and disbursements and other disbursements
incurred in the administration and execution of this Agreement and
the exercise and performance of its duties hereunder. The Company
also agrees to indemnify the Rights Agent for, and to hold it harm-
less against, any loss, liability, or expense, incurred without
negligence, bad faith or willful misconduct on the part of the
Rights Agent, for anything done or omitted by the Rights Agent in
connection with the acceptance and administration of this Agree-
ment, including the costs and expenses of defending against any
claim of liability in the premises.
(b) The Rights Agent shall be protected and shall incur
no liability for or in respect of any action taken, suffered or
omitted by it in connection with its administration of this Agree-
ment in reliance upon any Rights Certificate or certificate for
Common Stock or for other securities of the Company, instrument of
assignment or transfer, power of attorney, endorsement, affidavit,
letter, notice, direction, consent, certificate, statement, or
other paper or document believed by it to be genuine and to be
signed, executed and, where necessary, verified or acknowledged, by
the proper Person or Persons.
Section 19. Merger or Consolidation or Change of Name of
Rights Agent.
(a) Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be con-
solidated, or any corporation resulting from any merger or con-
solidation to which the Rights Agent or any successor Rights Agent
shall be a party, or any corporation succeeding to the corporate
trust business of the Rights Agent or any successor Rights Agent,
shall be the successor to the Rights Agent under this Agreement
without the execution or filing of any paper or any further act on
the part of any of the parties hereto; provided, however, that such
corporation would be eligible for appointment as a successor Rights
Agent under the provisions of Section 21 hereof. In case at the
time such successor Rights Agent shall succeed to the agency
created by this Agreement, any of the Rights Certificates shall
have been countersigned but not delivered, any such successor
Rights Agent may adopt the countersignature of a predecessor Rights
Agent and deliver such Rights Certificates so countersigned; and in
case at that time any of the Rights Certificates shall not have
been countersigned, any successor Rights Agent may countersign such
Rights Certificates either in the name of the predecessor or in the
name of the successor Rights Agent; and in all such cases such
Rights Certificates shall have the full force provided in the
Rights Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent
shall be changed and at such time any of the Rights Certificates
shall have been countersigned but not delivered, the Rights Agent
may adopt the countersignature under its prior name and deliver
Rights Certificates so countersigned; and in case at that time any
of the Rights Certificates shall not have been countersigned, the
Rights Agent may countersign such Rights Certificates either in its
prior name or in its changed name; and in all such cases such
Rights Certificates shall have the full force provided in the
Rights Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent under-
takes the duties and obligations imposed by this Agreement upon the
following terms and conditions, by all of which the Company and the
holders of Rights Certificates, by their acceptance thereof, shall
be bound:
(a) The Rights Agent may consult with legal counsel (who
may be legal counsel for the Company), and the opinion of such
counsel shall be full and complete authorization and protection to
the Rights Agent as to any action taken or omitted by it in good
faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent shall deem it necessary or desirable
that any fact or matter (including, without limitation, the iden-
tity of any Acquiring Person and the determination of "current
market price") be proved or established by the Company before
taking or suffering any action hereunder, such fact or matter
(unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and established
by a certificate signed by the Chairman of the Board and President,
any Vice President, the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of the Company and delivered
to the Rights Agent; and such certificate shall be full
authorization to the Rights Agent for any action taken or suffered
in good faith by it under the provisions of this Agreement in
reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for
its own negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by
reason of any of the statements of fact or recitals contained in
this Agreement or in the Rights Certificates or be required to
verify the same (except as to its countersignature on such Rights
Certificates), but all such statements and recitals are and shall
be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsi-
bility in respect of the validity of this Agreement or the execu-
tion and delivery hereof (except the due execution hereof by the
Rights Agent) or in respect of the validity or execution of any
Rights Certificate (except its countersignature thereof); nor shall
it be responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Rights Certificate;
nor shall it be responsible for any adjustment required under the
provisions of Section 11 or Section 13 hereof or responsible for
the manner, method or amount of any such adjustment or the ascer-
taining of the existence of facts that would require any such
adjustment (except with respect to the exercise of Rights evidenced
by Rights Certificates after receipt of the certificate described
in Section 12 hereof setting forth any such adjustment); nor shall
it by any act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any shares of
Common Stock or Preferred Stock to be issued pursuant to this
Agreement or any Rights Certificate or as to whether any shares of
Common Stock or Preferred Stock will, when so issued, be validly
authorized and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by the
Rights Agent for the carrying out or performing by the Rights Agent
of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed
to accept instructions with respect to the performance of its
duties hereunder from the Chairman of the Board and President, any
Vice President, the Secretary or any Assistant Secretary of the
Company, and to apply to such officers for advice or instructions
in connection with its duties, and it shall not be liable for any
action taken or suffered to be taken by it in good faith in
accordance with instructions of any such officer.
(h) The Rights Agent and any stockholder, director,
officer or employee of the Rights Agent may buy, sell or deal in
any of the Rights or other securities of the Company or become
pecuniarily interested in any transaction in which the Company may
be interested, or contract with or lend money to the Company or
otherwise act as fully and freely as though it were not Rights
Agent under this Agreement. Nothing herein shall preclude the
Rights Agent from acting in any other capacity for the Company or
for any other legal entity.
(i) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder
either itself or by or through its attorneys or agents, and the
Rights Agent shall not be answerable or accountable for any act,
default, neglect or misconduct of any such attorneys or agents or
for any loss to the Company resulting from any such act, default,
neglect or misconduct; provided, however, reasonable care was
exercised in the selection and continued employment thereof.
(j) No provision of this Agreement shall require the
Rights Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereun-
der or in the exercise of its rights if there shall be reasonable
grounds for believing that repayment of such funds or adequate
indemnification against such risk or liability is not reasonably
assured to it.
(k) If, with respect to any Rights Certificate surren-
dered to the Rights Agent for exercise or transfer, the certificate
attached to the form of assignment or form of election to purchase,
as the case may be, has either not been completed or indicates an
affirmative response to clause 1 and/or 2 thereof, the Rights Agent
shall not take any further action with respect to such requested
exercise or transfer without first consulting with the Company.
Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties
under this Agreement upon thirty (30) days' notice in writing
mailed to the Company, and to each transfer agent of the Common
Stock and Preferred Stock, by registered or certified mail, and to
the holders, if any, of the Rights Certificates by first-class
mail. The Company may remove the Rights Agent or any successor
Rights Agent upon ten (10) days' notice in writing, mailed to the
Rights Agent or successor Rights Agent, as the case may be, and to
each transfer agent of the Common Stock and Preferred Stock, by
registered or certified mail, and to the holders of the Rights
Certificates by first-class mail. If the Rights Agent shall resign
or be removed or shall otherwise become incapable of acting, the
Company shall appoint a successor to the Rights Agent. If the
Company shall fail to make such appointment within a period of ten
(10) days after giving notice of such removal, or within a period
of thirty (30) days 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 Rights Certificate (who shall, with
such notice, submit his Rights Certificate for inspection by the
Company), as the case may be, then any registered holder of any
Rights Certificate may apply to any court of competent jurisdiction
for the appointment of a new Rights Agent. Any successor Rights
Agent, whether appointed by the Company or by such a court, shall
be (a) a corporation organized and doing business under the laws of
the United States or of any state of the United States so long as
such corporation is in good standing, authorized under such laws to
exercise corporate trust powers, and is subject to supervision or
examination by federal or state authority and which has at the time
of its appointment as Rights Agent a combined capital and surplus
of at least $100,000,000 or (b) an affiliate of a corporation
described in clause (a) of this sentence. 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 pre-
decessor Rights Agent shall deliver and transfer to the successor
Rights Agent any property at the time held by it hereunder, and
execute and deliver any further assurance, conveyance, act or deed
necessary for the purpose. Not later than the effective date of
any such appointment, the Company shall file notice thereof in
writing with the predecessor Rights Agent and each transfer agent
of the Common Stock and the Preferred Stock, and mail a notice
thereof in writing to the registered holders of the Rights Certif-
icates. Failure to give any notice provided for in this Section
21, however, or any defect therein, shall not affect the legality
or validity of the resignation or removal of the Rights Agent or
the appointment of the successor Rights Agent, as the case may be.
Section 22. Issuance of New Rights Certificates. Notwith-
standing any of the provisions of this Agreement or of the Rights
to the contrary, the Company may, at its option, issue new Rights
Certificates evidencing Rights in such form as may be approved by
its Board of Directors to reflect any adjustment or change in the
Purchase Price and the number or kind or class of shares or other
securities or property purchasable under the Rights Certificates
made in accordance with the provisions of this Agreement. In
addition, in connection with the issuance or sale of shares of
Common Stock following the Distribution Date and before the redemp-
tion or expiration of the Rights, the Company (a) shall, with re-
spect to shares of Common Stock so issued or sold pursuant to the
exercise of stock options or under any employee plan or arrange-
ment, granted or awarded on or before the Distribution Date, or
upon the exercise, conversion or exchange of securities hereinafter
issued by the Company, and (b) may, in any other case, if deemed
necessary or appropriate by the Board of Directors of the Company,
issue Rights Certificates representing the appropriate number of
Rights in connection with such issuance or sale; provided, however
that (i) no such Rights Certificate shall be issued if, and to the
extent that, the Company shall be advised by counsel that such
issuance would create a significant risk of material adverse tax
consequences to the Company or the Person to whom such Rights
Certificate would be issued, and (ii) no such Rights Certificate
shall be issued if, and to the extent that, appropriate adjustment
shall otherwise have been made in lieu of the issuance thereof.
Section 23. Redemption and Termination.
(a) The Board of Directors of the Company may, at its
option, at any time before the earlier of (i) the close of business
on the twentieth Business Day following the Stock Acquisition Date
(or, if the Stock Acquisition Date shall have occurred before the
Record Date, the close of business on the twentieth Business Day
following the Record Date), or (ii) the Final Expiration Date,
redeem all but not less than all the then outstanding Rights at a
redemption price of $.01 per Right, as such amount may be
appropriately adjusted to reflect any stock split, stock dividend
or similar transaction occurring after the date hereof (such
redemption price being hereinafter referred to as the "Redemption
Price"); provided, however, if the Board of Directors of the
Company authorizes redemption of the Rights in either of the
circumstances set forth in clauses (i) and (ii) below, then there
must be Continuing Directors then in office and such authorization
shall require the concurrence of a majority of such Continuing
Directors: (i) such authorization occurs on or after the time a
Person becomes an Acquiring Person, or (ii) such authorization
occurs on or after the date of a change (resulting from a proxy or
consent solicitation) in a majority of the directors in office at
the commencement of such solicitation if any Person who is a
participant in such solicitation has stated (or, if upon the com-
mencement of such solicitation, a majority of the Board of Direc-
tors of the Company has determined in good faith) that such Person
(or any of its Affiliates or Associates) intends to take, or may
consider taking, any action which would result in such Person
becoming an Acquiring Person or which would cause the occurrence of
a Triggering Event unless, concurrent with such solicitation, such
Person (or one or more of its Affiliates or Associates) is making
a cash tender offer pursuant to a Schedule 14D-1 (or any successor
form) filed with the Securities and Exchange Commission for all
outstanding shares of Common Stock not beneficially owned by such
Person (or by its Affiliates or Associates). If, following the
occurrence of a Stock Acquisition Date and following the expiration
of the right of redemption hereunder but before any Triggering
Event, (i) a Person who is an Acquiring Person shall have
transferred or otherwise disposed of a number of shares of Common
Stock in one transaction or series of transactions, not directly or
indirectly involving the Company or any of its Subsidiaries, which
did not result in the occurrence of a Triggering Event such that
such Person is thereafter a Beneficial Owner of 10% or less of the
outstanding shares of Common Stock, and (ii) there are no other
Persons, immediately following the occurrence of the event
described in clause (i), who are Acquiring Persons, then the right
of redemption shall be reinstated and thereafter be subject to the
provisions of this Section 23. Notwithstanding anything contained
in this Agreement to the contrary, the Rights shall not be
exercisable after the first occurrence of a Section 11(a)(ii) Event
until such time as the Company's right of redemption hereunder has
expired. The Company may, at its option, pay the Redemption Price
in cash, shares of Common Stock (based on the "current market
price," as defined in Section 11(d)(i) hereof, of the Common Stock
at the time of redemption) or any other form of consideration
deemed appropriate by the Board of Directors.
(b) Immediately upon the action of the Board of Direc-
tors of the Company ordering the redemption of the Rights, evidence
of which shall have been filed with the Rights Agent, and without
any further action and without any notice, the right to exercise
the Rights will terminate and the only right thereafter of the
holders of Rights shall be to receive the Redemption Price for each
Right so held. Promptly after the action of the Board of Directors
ordering the redemption of the Rights, the Company shall give
notice of such redemption to the Rights Agent and the holders of
the then outstanding Rights by mailing such notice to all such
holders at each holder's last address as it appears upon the
registry books of the Rights Agent or, before the Distribution
Date, on the registry books of the Transfer Agent for the Common
Stock. Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives the
notice. Each such notice of redemption will state the method by
which the payment of the Redemption Price will be made.
Section 24. Exchange.
(a) The Board of Directors of the Company may, at its
option, at any time and from time to time after the first occur-
rence of a Section 11(a)(ii) Event, exchange all or part of the
then outstanding and exercisable Rights (which shall not include
Rights that have become void pursuant to the provisions of Section
7(e) hereof) for shares of Common Stock or common stock equivalents
(as defined in Section 11(a)(iii) hereof), or any combination
thereof, at an exchange ratio of one share of Common Stock, or such
number of common stock equivalents or units representing fractions
thereof as would be deemed to have the same value as one share of
Common Stock, per Right, appropriately adjusted to reflect any
stock split, stock dividend or similar transaction occurring after
the date hereof (such exchange ratio being hereinafter referred to
as the "Exchange Ratio").
(b) Immediately upon the action of the Board of Direc-
tors of the Company ordering the exchange of any Rights pursuant to
subsection (a) of this Section 24 and without any further action
and without any notice, the right to exercise such Rights shall
terminate and the only right thereafter of a holder of such Rights
shall be to receive that number of shares of Common Stock and/or
common stock equivalents equal to the number of such Rights held by
such holder multiplied by the Exchange Ratio. The Company shall
promptly give public notice of any such exchange; provided, how-
ever, that the failure to give, or any defect in, such notice
shall not affect the validity of such exchange. The Company
promptly shall mail a notice of any such exchange to all of the
holders of such Rights at their last addresses as they appear upon
the registry books of the Rights Agent. Any notice which is mailed
in the manner herein provided shall be deemed given, whether or not
the holder receives the notice. Each such notice of exchange will
state the method by which the exchange of the shares of Common
Stock and/or common stock equivalents for Rights will be effected
and, in the event of any partial exchange, the number of Rights
which will be exchanged. Any partial exchange shall be effected
pro rata based on the number of Rights (other than Rights which
have become void pursuant to the provisions of Section 7(e) hereof)
held by each holder of Rights.
(c) If the number of shares of Common Stock which are
authorized by the Company's Articles of Incorporation but not
outstanding or reserved for issuance for purposes other than upon
exercise of the Rights are not sufficient to permit an exchange of
Rights as contemplated in accordance with this Section 24, the
Company may, at its option, take all such action as may be neces-
sary to seek to authorize additional shares of Common Stock for
issuance upon exchange of the Rights.
(d) The Company shall not be required to issue fractions
of shares of Common Stock or to distribute certificates which evi-
dence fractional shares of Common Stock. In lieu of such frac-
tional shares of Common Stock, the Company shall pay to the regis-
tered holders of Rights with regard to which such fractional shares
of Common Stock would otherwise be issuable an amount in cash equal
to the same fraction of the value of a whole share of Common Stock.
For purposes of this Section 24, the value of a whole share of Com-
mon Stock shall be the closing price (as determined pursuant to the
second sentence of Section 11(d)(i) hereof) for the Trading Day
immediately before the date of exchange pursuant to this Section
24, and the value of any common stock equivalent shall be deemed to
have the same value as the Common Stock on such date.
Section 25. Notice of Certain Events.
(a) In case the Company shall propose, at any time after
the Distribution Date, (i) to pay any dividend payable in stock of
any class to the holders of Preferred Stock or to make any other
distribution to the holders of Preferred Stock (other than a regu-
lar quarterly cash dividend out of earnings or retained earnings of
the Company), or (ii) to offer to the holders of Preferred Stock
rights or warrants to subscribe for or to purchase any additional
share of Preferred Stock or shares of stock of any class or any
other securities, rights or options, or (iii) to effect any re-
classification of its Preferred Stock (other than a reclassifica-
tion involving only the subdivision of outstanding shares of Pre-
ferred Stock), or (iv) to effect any consolidation or merger into
or with any other Person (other than a Subsidiary of the Company in
a transaction which complies with Section 11(o) hereof), or to
effect any sale or other transfer (or to permit one or more of its
Subsidiaries to effect any sale or other transfer), in one trans-
action or a series of related transactions, of more than 50% of the
assets or earning power of the Company and its Subsidiaries (taken
as a whole) to any other Person or Persons (other than the Company
and/or any of its Subsidiaries in one or more transactions each of
which complies with Section 11(o) hereof), or (v) to effect the
liquidation, dissolution or winding up of the Company, then, in
each such case, the Company shall give to each holder of a Rights
Certificate, to the extent feasible and in accordance with Section
26 hereof, a notice of such proposed action, which shall specify
the record date for the purposes of such stock dividend, distribu-
tion of rights or warrants, or the date on which such reclassifica-
tion, consolidation, merger, sale, transfer, liquidation, dissolu-
tion, or winding up is to take place and the date of participation
therein by the holders of the shares of Preferred Stock, if any
such date is to be fixed, and such notice shall be so given in the
case of any action covered by clause (i) or (ii) above at least
twenty (20) days before the record date for determining holders of
the shares of Preferred Stock for purposes of such action, and in
the case of any such other action, at least twenty (20) days before
the date of the taking of such proposed action or the date of
participation therein by the holders of the shares of Preferred
Stock, whichever shall be the earlier.
(b) In case any Section 11(a)(ii) Event shall occur,
then, in any such case, (i) the Company shall as soon as practi-
cable thereafter give to each holder of a Rights Certificate, to
the extent feasible and in accordance with Section 26 hereof, a
notice of the occurrence of such event, which shall specify the
event and the consequences of the event to holders of Rights under
Section 11(a)(ii) hereof, and (ii) all references in the preceding
paragraph to Preferred Stock shall be deemed thereafter to refer to
Common Stock and/or, if appropriate, other securities.
Section 26. Notices. Notices or demands authorized by this
Agreement to be given or made by the Rights Agent or by the holders
of any Rights Certificate to or on the Company shall be suffi-
ciently 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:
Peoples First Corporation
100 South Fourth Street
Paducah, Kentucky 42001
Attn: Chairman of the Board
Subject to the provisions of Section 21, any notice or demand
authorized by this Agreement to be given or made by the Company or
by the holder of any Rights Certificate to or on the Rights Agent
shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed (until another address is filed in
writing with the Company) as follows:
Boatmen's Trust Company
510 Locust Street
P. O. Box 14768
St. Louis, Missouri 63178
Attention: Corporate Trust Division
Notices or demands authorized by this Agreement to be given or made
by the Company or the Rights Agent to the holder of any Rights
Certificate (or, if before the Distribution Date, to the holder of
certificates representing shares of Common Stock) shall be suffi-
ciently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on
the registry books of the Company.
Section 27. Supplements and Amendments. Before the Distri-
bution Date and subject to the penultimate sentence of this Section
27, the Company and the Rights Agent shall, if the Company so
directs, supplement or amend any provision of this Agreement with-
out the approval of any holders of certificates representing shares
of Common Stock. From and after the Distribution Date and subject
to the penultimate sentence of this Section 27, the Company and the
Rights Agent shall, if the Company so directs, supplement or amend
this Agreement without the approval of any holders of Rights Cer-
tificates in order (i) to cure any ambiguity, (ii) to correct or
supplement any provision contained herein which may be defective or
inconsistent with any other provision herein, (iii) to shorten or
lengthen any time period hereunder (which lengthening or shorten-
ing, following the first occurrence of an event set forth in
clauses (i) or (ii) of the first proviso to Section 23(a) hereof,
shall be effective only if there are Continuing Directors and shall
require the concurrence of a majority of such Continuing Direc-
tors), or (iv) to change or supplement the provisions hereunder in
any manner which the Company may deem necessary or desirable and
which shall not adversely affect the interests of the holders of
Rights Certificates (other than an Acquiring Person or an Affiliate
or Associate of any such Person); provided, that, from and after
the Distribution Date, this Agreement may not be supplemented or
amended to lengthen, pursuant to clause (iii) of this sentence, (A)
a time period relating to when the Rights may be redeemed at such
time as the Rights are not then redeemable, or (B) any other time
period unless such lengthening is for the purpose of protecting,
enhancing or clarifying the rights of, and/or the benefits to, the
holders of Rights. Upon the delivery of a certificate from an
appropriate officer of the Company which states that the proposed
supplement or amendment is in compliance with the terms of this
Section 27, the Rights Agent shall execute such supplement or
amendment. Notwithstanding anything contained in this Agreement to
the contrary, from and after the Distribution Date, no supplement
or amendment shall be made which changes the Redemption Price, the
Final Expiration Date, the Purchase Price or the number of one one-
hundredths of a share of Preferred Stock for which a Right is exer-
cisable. Before the Distribution Date, the interests of the
holders of Rights shall be deemed coincident with the interests of
the holders of Common Stock.
Section 28. Successors. All the covenants and provisions of
this Agreement by or for the benefit of the Company or the Rights
Agent shall bind and inure to the benefit of their respective
successors and assigns hereunder.
Section 29. Determinations and Actions by the Board of Direc-
tors, etc. For all purposes of this Agreement, any calculation of
the number of shares of Common Stock outstanding at any particular
time, including for purposes of determining the particular percent-
age of such outstanding shares of Common Stock of which any Person
is the Beneficial Owner, shall be made in accordance with the last
sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regula-
tions under the Exchange Act as in effect of the date hereof. The
Board of Directors of the Company (with, where specifically pro-
vided for herein, the concurrence of the Continuing Directors)
shall have the exclusive power and authority to administer this
Agreement and to exercise all rights and powers specifically
granted to the Board (with, where specifically provided for herein,
the concurrence of the Continuing Directors) or to the Company, or
as may be necessary or advisable in the administration of this
Agreement, including, without limitation, the right and power to
(i) interpret the provisions of this Agreement, and (ii) make all
determinations deemed necessary or advisable for the administration
of this Agreement (including, but not limited to, a determination
to redeem or not redeem the Rights or to amend the Agreement). All
such actions, calculations, interpretations and determinations
(including, for purposes of clause (y) below, all omissions with
respect to the foregoing) which are done or made by the Board
(with, where specifically provided for herein, the concurrence of
the Continuing Directors) in good faith, shall (x) be final,
conclusive and binding on the Company, the Rights Agent, the
holders of the Rights and all other parties, and (y) not subject
the Board (or the Continuing Directors) to any liability to the
holders of the Rights.
Section 30. Benefits of this Agreement. Nothing in this
Agreement shall be construed to give to any Person other than the
Company, the Rights Agent and the registered holders of the Rights
Certificates (and, before the Distribution Date, registered holders
of the Common Stock) any legal or equitable right, remedy or claim
under this Agreement; but this Agreement shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the regis-
tered holders of the Rights Certificates (and, before the Distri-
bution Date, registered holders of the Common Stock).
Section 31. Severability. If any term, provision, covenant
or restriction of this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void or unenforce-
able, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated;
provided, however, that notwithstanding anything in this Agreement
to the contrary, if any such term, provision, covenant or restric-
tion is held by such court or authority to be invalid, void or
unenforceable and the Board of Directors of the Company determines
in its good faith judgment that severing the invalid language from
this Agreement would adversely affect the purpose or effect of this
Agreement, the right of redemption set forth in Section 23 hereof
shall be reinstated and shall not expire until the close of busi-
ness on the tenth day following the date of such determination by
the Board of Directors. Without limiting the foregoing, if any
provisions requiring that a determination be made by less than the
entire Board is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, such determination
shall then be made by the entire Board.
Section 32. Governing Law. This Agreement, each Right and
each Rights Certificate issued hereunder shall be deemed to be a
contract made under the laws of the Commonwealth of Kentucky and
for all purposes shall be governed by and construed in accordance
with the laws of such Commonwealth applicable to contracts made and
to be performed entirely within such Commonwealth.
Section 33. Counterparts. This Agreement may be executed in
any number of counterparts and each of such counterparts shall for
all purposes be deemed to be an original, and all such counterparts
shall together constitute but one and the same instrument.
Section 34. Descriptive Headings. Descriptive headings of
the several Sections of this Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of
any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year
first above written.
PEOPLES FIRST CORPORATION
Attest:
By /s/ Aubrey W. Lippert
Aubrey W. Lippert
By /s/ A. Howard Arant Chairman of the Board
Secretary
BOATMEN'S TRUST COMPANY
Attest:
By /s/ H. Euguene Bradford
By /s/ Jerry Rechter Senior Vice President
Vice President
Exhibit A
FORM OF
ARTICLES OF AMENDMENT
TO THE
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
PEOPLES FIRST CORPORATION
Pursuant to KRS 271B.6-010(3) and KRS 271B.6-020(4), these
Articles of Amendment to the Amended and Restated Articles of
Incorporation of Peoples First Corporation (the "Corporation") are
being delivered to the Kentucky Secretary of State for filing. The
information required by KRS 271B.6-020(4) is as follows:
FIRST: The name of the Corporation is Peoples First
Corporation.
SECOND: These Articles of Amendment amend current Article 5 of
the Corporation's Amended and Restated Articles of Incorporation by
establishing a new Junior Participating Preferred Stock. As
amended, a new Article 5(c) shall be added to Article 5, which
Article 5(c) shall read in its entirety as follows:
"(c) Junior Participating Preferred Stock.
"(i) Designation. The designation of the
series of the Preferred Stock created by the
Board of Directors shall be "Junior
Participating Preferred Stock" (hereinafter
called this "Series") and the number of shares
constituting this Series is three hundred
thousand (300,000).
"(ii) Dividends.
"(1) Subject to the prior and superior
rights of the holders of any shares of any
series of Preferred Stock ranking prior and
superior to the shares of this Series with
respect to dividends, the holders of shares of
this Series shall be entitled to receive, when
and as declared by the Board of Directors out
of funds legally available for the purpose,
quarterly dividends payable in cash on March
31, June 30, September 30 and December 31 of
each year (each such date being referred to
herein as a "Quarterly Dividend Payment
Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance
of a share or fraction of a share of this
Series, in an amount per share (rounded to the
nearest cent) equal to the greater of (A)
$1.00 or (B) subject to the provision for
adjustment hereinafter set forth, 100 times
the aggregate per share amount of all cash
dividends, and 100 times the aggregate per
share amount (payable in kind) of all non-cash
dividends or other distributions other than a
dividend payable in shares of Common Stock or
a subdivision of the outstanding shares of
Common Stock (by reclassification or other-
wise), declared on the Common Stock of the
Corporation (the "Common Stock") since the
immediately preceding Quarterly Dividend
Payment Date, or, with respect to the first
Quarterly Dividend Payment Date, since the
first issuance of any share or fraction of a
share of this Series. If the Corporation
shall at any time after January 18, 1995 (the
"Rights Declaration Date") (i) declare any
dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding
Common Stock into a smaller number of shares,
then in each such case the amount to which
holders of shares of this Series were entitled
immediately before such event under clause (B)
of the preceding sentence shall be adjusted by
multiplying such amount by a fraction the
numerator of which is the number of shares of
Common Stock outstanding immediately after
such event and the denominator of which is the
number of shares of Common Stock that were
outstanding immediately before such event.
"(2) The Corporation shall declare a
dividend or distribution on this Series as
provided in clause (A) of the preceding
paragraph (1) immediately after it declares a
dividend or distribution on the Common Stock
(other than a dividend payable in shares of
Common Stock); provided that, in the event no
dividend or distribution shall have been
declared on the Common Stock during the period
between any Quarterly Dividend Payment Date
and the next subsequent Quarterly Dividend
Payment Date, a dividend of $1.00 per share on
this Series shall nevertheless be payable on
such subsequent Quarterly Dividend Payment
Date.
"(3) Dividends shall begin to accrue and
be cumulative on outstanding shares of this
Series from the Quarterly Dividend Payment
Date next preceding the date of issue of such
shares of this Series unless the date of issue
of such shares is before the record date for
the first Quarterly Dividend Payment Date, in
which case dividends on such shares shall
begin to accrue from the date of issue of such
shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date
after the record date for the determination of
holders of shares of this Series entitled to
receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of
which events such dividends shall begin to
accrue and be cumulative from such Quarterly
Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends
paid on the shares of this Series in an amount
less than the total amount of such dividends
at the time accrued and payable on such shares
shall be allocated pro rata on a share-by-share
basis among all such shares at the time
outstanding. The Board of Directors may fix a
record date for the determination of holders
of shares of this Series entitled to receive
payment of a dividend or distribution declared
thereon, which record date shall be no more
than 30 days before the date fixed for the
payment thereof.
"(4) No full dividends shall be declared
or paid or set apart for payment on the Pre-
ferred Stock of any series ranking, as to
dividends, on a parity with or junior to this
Series for any period unless full cumulative
dividends have been or contemporaneously are
declared and a sum sufficient for the payment
thereof set apart for such payment on this
Series for all dividend payment periods ter-
minating on or prior to the date of payment of
such full cumulative dividends. When divi-
dends are not paid in full, as aforesaid, upon
the shares of this Series and any other Pre-
ferred Stock ranking on a parity as to divi-
dends with this Series, all dividends declared
upon shares of this Series and any other Pre-
ferred Stock ranking on a parity as to divi-
dends with this Series shall be declared pro
rata so that the amount of dividends declared
per share on this Series and such other Pre-
ferred Stock shall in all cases bear to each
other the same ratio that accrued dividends
per share on the shares of this Series and
such other Preferred Stock bear to each other.
Holders of shares of this Series shall not be
entitled to any dividends, whether payable in
cash, property or stock, in excess of full
cumulative dividends, as herein provided, on
this Series. No interest, or sum of money in
lieu of interest, shall be payable in respect
of any dividend payment of payments on this
Series which may be in arrears.
"(5) So long as any shares of this Series
are outstanding, no dividend (other than a
dividend in Common Stock or in any other stock
ranking junior to this Series as to dividends
and upon liquidation and other than as pro-
vided in paragraph (4) of this Article
5(c)(ii)) shall be declared or paid or set
aside for payment or other distribution
declared or made upon the Common Stock or upon
any other stock ranking junior to or on a
parity with this Series as to dividends or
upon liquidation, nor shall any Common Stock
or any other stock of the Corporation ranking
junior to or on a parity with this Series as
to dividends or upon liquidation be redeemed,
purchased or otherwise acquired for any
consideration (or any moneys be paid to or
made available for a sinking fund for the
redemption of any shares of any such stock) by
the Corporation (except by conversion into or
exchange for stock of the Corporation ranking
junior to this Series as to dividends and upon
liquidation) unless, in each case, the full
cumulative dividends on all outstanding shares
of this Series shall have been paid for all
past dividend payment periods.
"(iii) Redemption.
"(1) The shares of this Series shall be
redeemable only as expressly provided in this
Article 5(c)(iii). The Corporation, at its
option, may redeem shares of this Series, as a
whole or in part, at any time or from time to
time, at a redemption price equal to, subject
to the provisions for adjustment hereinafter
set forth, 100 times the "current per share
market price" of the Common Stock on the date
of the mailing of the notice of redemption,
plus accrued and unpaid dividends to the date
fixed for such redemption. In the event the
Corporation shall any time after the Rights
Declaration Date (i) declare any dividend on
Common Stock payable in shares of Common
Stock, (ii) subdivide the outstanding Common
Stock or (iii) combine the outstanding Common
Stock into a smaller number of shares, then in
each such case the amount to which holders of
shares of this Series were otherwise entitled
immediately before such event under the pre-
ceding sentence shall be adjusted by multi-
plying such amount by a fraction the numerator
of which is the number of shares of Common
Stock outstanding immediately after such event
and the denominator of which is the number of
shares of Common Stock that were outstanding
immediately before such event. The "current
per share market price" on any date shall be
deemed to be the average of the closing price
per share of such Common Stock for the 10 con-
secutive Trading Days (as such term is herein-
after defined) immediately before such date.
The closing price for each day shall be the
last sale price, regular way, or, in case no
such sale takes place on such day, the aver-
age of the closing bid and asked prices, regu-
lar way, in either case as reported in the
principal consolidated transaction reporting
system with respect to securities listed or
admitted to trading on the New York Stock
Exchange or, if the Common Stock is not listed
or admitted to trading on the New York Stock
Exchange, as reported in the principal consol-
idated transaction reporting system with
respect to securities listed or admitted to
trading on the principal national securities
exchange on which the Common Stock is listed
or admitted to trading or, if the Common Stock
is not listed or admitted to trading on any
national securities exchange, the last quoted
price or, if not so quoted the average of the
high bid and low asked prices in the over-the-
counter market, as reported by the National
Association of Securities Dealers, Inc. Auto-
mated Quotation System ("NASDAQ") or such
other system then in use or, if on such date
the Common Stock is not quoted by any such
organization, the average of the closing bid
and asked prices as furnished by a profes-
sional market maker making a market in the
Common Stock selected by the Board of Direc-
tors of the Corporation. If on such date no
such market maker is making a market in the
Common Stock, the fair value of the Common
Stock on such date as determined in good faith
by the Board of Directors of the Corporation
shall be used. The term "Trading Day" shall
mean a day on which the principal national
securities exchange on which the Common Stock
is listed or admitted to trading is open for
the transaction of business or, if the Common
Stock is not listed or admitted to trading on
any national securities exchange, a Monday,
Tuesday, Wednesday, Thursday or Friday on
which banking institutions in the Commonwealth
of Kentucky are not authorized or obligated by
law or executive order to close.
"(2) If fewer than all the outstanding
shares of this Series are to be redeemed, the
number of shares to be redeemed shall be
determined by the Board of Directors and the
shares to be redeemed shall be determined by
lot or pro rata as may be determined by the
Board of Directors or by any other method
which may be determined by the Board of
Directors in its sole discretion to be equit-
able.
"(3) In the event the Corporation shall
redeem shares of this Series, notice of such
redemption shall be given by first class mail,
postage prepaid, mailed not less than 30 nor
more than 60 days before the redemption date,
to each holder of record of the shares to be
redeemed, at such holder's address as the same
appears on the stock register of the
Corporation. Each such notice shall state:
(i) the redemption date; (ii) the number of
shares of this Series to be redeemed and, if
fewer than all the shares held by such holder
are to be redeemed, the number of such shares
to be redeemed from such holder; (iii) the
redemption price; (iv) the place or places
where certificates for such shares are to be
surrendered for payment of the redemption
price; and (v) that dividends on the shares to
be redeemed will cease to accrue on the close
of business on such redemption date.
"(4) Notice having been mailed as afore-
said, from and after the redemption date (un-
less default shall be made by the Corporation
in providing money for the payment of the
redemption price) dividends on the shares of
this Series so called for redemption shall
cease to accrue, and said shares shall no
longer be deemed to be outstanding, and all
rights of the holders thereof as stockholders
of the Corporation (except the right to re-
ceive from the Corporation the redemption
price) shall cease. Upon surrender in accor-
dance with said notice of the certificates for
any shares so redeemed (properly endorsed or
assigned for transfer, if the Board of Direc-
tors of the Corporation shall so require and
the notice shall so state), such shares shall
be redeemed by the Corporation at the redemp-
tion price aforesaid. In case fewer than all
the shares represented by any such certificate
are redeemed, a new certificate shall be is-
sued representing the unredeemed shares with-
out cost to the holder thereof.
"(5) Any shares of this Series which
shall at any time have been redeemed shall,
after such redemption, have the status of
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.
"(6) Notwithstanding the foregoing pro-
visions of this Article 5(c)(iii), if any
dividends on this Series are in arrears, no
shares of the Series shall be redeemed unless
all outstanding shares of this Series are
simultaneously redeemed, and the Corporation
shall not purchase or otherwise acquire any
shares of this Series; provided, however, that
the foregoing shall not prevent the purchase
or acquisition of shares of this Series
pursuant to a purchase or exchange offer made
on the same terms to holders of all
outstanding shares of this Series.
"(iv) Conversion or Exchange. The holders of
shares of this Series shall not have any rights to
convert such shares into or exchange such shares
for shares of any other class or classes or of any
other series of any class or classes of capital
stock of the Corporation.
"(v) Voting. The shares of this Series shall
not have any voting powers either general or spe-
cial, except that if at the time of any annual
meeting of stockholders for the election of direc-
tors a default in preference dividends on the Pre-
ferred Stock shall exist, the number of directors
constituting the Board of Directors of the Corpo-
ration shall be increased by two, and the holders
of the Preferred Stock of all series (whether or
not the holders of such series of Preferred Stock
would be entitled to vote for the election of
directors if such default in preference dividends
did not exist), shall have the right at such meet-
ing, voting together as a single class without
regard to series, to the exclusion of the holders
of Common Stock, to elect two directors of the
Corporation to fill such newly created
directorships. Such right shall continue until
there are no dividends in arrears upon the
Preferred Stock. Each director elected by the
holders of shares of Preferred Stock (herein called
a "Preferred Director"), shall continue to serve as
such director for the full term for which he shall
have been elected, notwithstanding that before the
end of such term a default in preference dividends
shall cease to exist. In no case shall the number
of Preferred Directors exceed two. Any Preferred
Director may be removed by, and shall not be
removed except by, the vote of the holders of
record of the outstanding shares of Preferred Stock
voting together as a single class without regard to
series, at a meeting of the stockholders, or of the
holders of shares of Preferred Stock called for the
purpose. So long as a default in any preference
dividends on the Preferred Stock shall exist,
(A) any vacancy in the office of a Preferred
Director may be filled (except as provided in the
following clause (B)) by an instrument in writing
signed by the remaining Preferred Director and
filed with the Corporation and (B) in the case of
the removal of any Preferred Director, the vacancy
may be filled by the vote of the holders of the
outstanding shares of Preferred Stock voting
together as a single class without regard to
series, at the same meeting at which such removal
shall be voted. Each director appointed as
aforesaid by the remaining Preferred Director shall
be deemed, for all purposes hereof, to be a
Preferred Director. Whenever the term of office of
the Preferred Directors shall end and a default in
preference dividends shall no longer exist, the
number of Directors constituting the Board of
Directors of the Corporation shall be reduced by
two. For the purposes hereof, a "default in
preference dividends" on the Preferred Stock shall
be deemed to have occurred whenever the amount of
accrued dividends upon any series of the Preferred
Stock shall be equivalent to six full
quarter-yearly dividends or more, and, having so
occurred, such default shall be deemed to exist
thereafter until, but only until, all accrued divi-
dends on all shares of Preferred Stock of each and
every series then outstanding shall have been paid
to the end of the last preceding quarterly dividend
period.
"(vi) Liquidation Rights.
"(1) Upon the dissolution, liquidation
(voluntary or otherwise), or winding up of the
Corporation, the holders of the shares of this
Series shall be entitled to receive out of the
assets of the Corporation, before any payment
of distribution shall be made on the Common
Stock, or on any other class of stock ranking
junior to the Preferred Stock upon liquida-
tion, the amount of $6,000.00 per share, plus
a sum equal to all dividends (whether or not
earned or declared) on such shares accrued and
unpaid thereon to the date of final
distribution (the "Liquidation Preference").
Following the payment of the full amount of
the Liquidation Preference, no additional
distributions shall be made to the holders of
shares of this Series unless, prior thereto,
the holders of shares of Common Stock shall
have received an amount per share (the "Common
Adjustment") equal to the quotient obtained by
dividing (i) the Liquidation Preference by
(ii) 100 (as appropriately adjusted as set
forth in paragraph (2) below to reflect such
events as stock splits, stock dividends and
recapitalizations with respect to the Common
Stock) (such number in clause (ii), the
"Adjustment Number"). Following the payment
of the full amount of the Liquidation Pre-
ference and the Common Adjustment in respect
of all outstanding shares of Junior Partici-
pating Preferred Stock and Common Stock,
respectively, holders of this Series and hold-
ers of Common Stock shall receive their rat-
able and proportionate share of the remaining
assets to be distributed in the ratio of the
Adjustment Number to 1 with respect to such
Preferred Stock and Common Stock, on a per
share basis, respectively.
"(2) If the Corporation shall at any time
after the Rights Declaration Date (i) declare
any dividend on Common Stock payable in shares
of Common Stock, (ii) subdivide the outstand-
ing Common Stock, or (iii) combine the out-
standing Common Stock into a smaller number of
shares, then in each such case the Adjustment
Number in effect immediately before such event
shall be adjusted by multiplying such Adjust-
ment Number by a fraction the numerator of
which is the number of shares of Common Stock
outstanding immediately after such event and
the denominator of which is the number of
shares of Common Stock that were outstanding
immediately before such event.
"(3) The sale, conveyance, exchange or
transfer (for cash, shares of stock, securi-
ties or other consideration) of all or sub-
stantially all the property and assets of the
Corporation shall be deemed a voluntary dis-
solution, liquidation or winding up of the
Corporation for the purposes of this Article
5(c)(vi), but the merger or consolidation of
the Corporation into or with another corpora-
tion or the merger or consolidation of any
other corporation into or with the
Corporation, shall not be deemed to be a
dissolution, liquidation or winding up,
voluntarily or involuntarily, for the purposes
of this Article 5(c)(vi).
"(4) After the payment to the holders of
the shares of this Series of the full prefer-
ential amounts provided for in this Article
5(c)(vi), the holders of this Series as such
shall have no right or claim to any of the
remaining assets of the Corporation.
"(5) If the assets of the Corporation
available for distribution to the holders of
shares of this Series upon any dissolution,
liquidation or winding up of the Corporation,
whether voluntary or involuntary, shall be
insufficient to pay in full all amounts to
which such holders are entitled pursuant to
paragraph (1) of this Article 5(c)(vi), no
such distribution shall be made on account of
any shares of any other class or series of
Preferred Stock ranking on a parity with the
shares of this Series upon such dissolution,
liquidation or winding up unless proportionate
distributive amounts shall be paid on account
of the shares of this Series, ratably, in pro-
portion to the full distributable amounts for
which holders of all such parity shares are
respectively entitled upon such dissolution,
liquidation or winding up. If, however, there
are not sufficient assets available to permit
payment in full of the Common Adjustment, then
such remaining assets shall be distributed
ratably to the holders of Common Stock.
"(vii) For purposes of this resolution, any
stock of any class or classes of the Corporation
shall be deemed to rank:
"(1) prior to the shares of this Series,
either as to dividends or upon liquidation, if
the holders of such class or classes shall be
entitled to the receipt of dividends or of
amounts distributable upon dissolution, liqui-
dation or winding up of the Corporation, as
the case may be, in preference or priority to
the holders of shares of this Series;
"(2) on a parity with shares of this
Series, either as to dividends or upon liqui-
dation, whether or not the dividend rates,
dividend payment dates or redemption or liqui-
dation prices per share or sinking fund provi-
sions, if any, be different from those of this
Series, if the holders of such stock shall be
entitled to the receipt of dividends or of
amounts distributable upon dissolution, liqui-
dation or winding up of the Corporation, as
the case may be, in proportion to their re-
spective dividend rates or liquidation prices,
without preference or priority, one over the
other, as between the holders of such stock
and the holders of shares of this Series; and
"(3) junior to shares of this Series,
either as to dividends or upon liquidation, if
the holders of shares of this Series shall be
entitled to receipt of dividends or of amounts
distributable upon dissolution, liquidation or
winding up of the Corporation, as the case may
be, in preference or priority to the holders
of shares of such class or classes."
THIRD: These Articles of Amendment were duly adopted by the
Corporation's Board of Directors on January 18, 1995. Shareholder
approval was not required.
Aubrey W. Lippert
Chairman of the Board and President
Date:
Exhibit B
[Form of Rights Certificate]
Certificate No. R- ______ Rights
NOT EXERCISABLE AFTER JANUARY 31, 2005, OR EARLIER IF REDEEMED OR
EXCHANGED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT
THE OPTION OF THE COMPANY, AT $.01 PER RIGHT AND TO EXCHANGE ON THE
TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUM-
STANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH
TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT
HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRE-
SENTED BY THIS RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY
A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR
ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE
RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE
RIGHTS REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE CIRCUM-
STANCES SPECIFIED IN SECTION 7(e) OF SUCH AGREEMENT.]
Rights Certificate
PEOPLES FIRST CORPORATION
This certifies that ________________________, or registered
assigns, is the registered owner of the number of Rights set forth
above, each of which entitles the owner thereof, subject to the
terms, provisions and conditions of the Rights Agreement, dated as
of January 18, 1995 (the "Rights Agreement"), between Peoples First
Corporation, a Kentucky corporation (the "Company"), and Boatmen's
Trust Company, a Missouri corporation (the "Rights Agent"), to
purchase from the Company at any time before 5:00 P.M. (Paducah
time) on January 31, 2005, at the office or offices of the Rights
Agent designated for such purpose, or its successors as Rights
Agent, one one-hundredth of a fully paid, non-assessable share of
Junior Participating Preferred Stock (the "Preferred Stock") of the
Company, at a purchase price of $60.00 per one one-hundredth of a
share (the "Purchase Price"), upon presentation and surrender of
this Rights Certificate with the Form of Election to Purchase and
related Certificate duly executed. The number of Rights evidenced
by this Rights Certificate (and the number of shares which may be
purchased upon exercise thereof) set forth above, and the Purchase
Price per share set forth above, are the number and Purchase Price
as of January 18, 1995, based on the Preferred Stock as constituted
at such date. The Company reserves the right to require before the
occurrence of a Triggering Event (as such term is defined in the
Rights Agreement) that a number of Rights be exercised so that only
whole shares of Preferred Stock will be issued.
Upon the occurrence of a Section 11(a)(ii) Event (as such term
is defined in the Rights Agreement), if the Rights evidenced by
this Rights Certificate are beneficially owned by (i) an Acquiring
Person or an Affiliate or Associate of any such Person (as such
terms are defined in the Rights Agreement), (ii) a transferee of
any such Acquiring Person, Associate or Affiliate, or (iii) under
certain circumstances specified in the Rights Agreement, a
transferee of a person who, after such transfer, became an
Acquiring Person or an Affiliate or Associate of any such Person,
such Rights shall become null and void and no holder hereof shall
have any right with respect to such Rights from and after the
occurrence of such Section 11(a)(ii) Event.
As provided in the Rights Agreement, the Purchase Price and
the number and kind of shares of Preferred Stock or other securi-
ties which may be purchased upon the exercise of the Rights evi-
denced by this Rights Certificate are subject to modification and
adjustment upon the happening of certain events, including Trig-
gering Events (as such term is defined in the Rights Agreement).
This Rights Certificate is subject to all of the terms, pro-
visions and conditions of the Rights Agreement, which terms, pro-
visions and conditions are hereby incorporated herein by reference
and made a part hereof and to which Rights Agreement reference is
hereby made for a full description of the rights, limitations of
rights, obligations, duties and immunities hereunder of the Rights
Agent, the Company and the holders of the Rights Certificates,
which limitations of rights include the temporary suspension of the
exercisability of such Rights under the specific circumstances set
forth in the Rights Agreement. Copies of the Rights Agreements are
on file at the above-mentioned office of the Rights Agent and are
also available upon written request to the Rights Agent.
This Rights Certificate, with or without other Rights Cer-
tificates, upon surrender at the principal office or offices of the
Rights Agent designated for such purpose, may be exchanged for
another Rights Certificate or Rights Certificate of like tenor and
date evidencing Rights entitling the holder to purchase a like
aggregate number of one one-hundredths of a share of Preferred
Stock as the Rights evidenced by the Rights Certificate or Rights
Certificates surrendered shall have entitled such holder to
purchase. If this Rights Certificate shall be exercised in part,
the holder shall be entitled to receive upon surrender hereof
another Rights Certificate or Rights Certificates for the number of
whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate (i) may be redeemed by the Company at
its option at a redemption price of $.01 per Right at any time
before the earlier of the close of business on (a) the twentieth
Business Day following the Stock Acquisition Date (as such time
period may be extended pursuant to the Rights Agreement), and (b)
the Final Expiration Date or (ii) may be exchanged in whole or in
part for shares of the Company's Common Stock and/or other equity
securities of the Company deemed to have the same value as shares
of Common Stock. After the expiration of the redemption period,
the Company's right of redemption may be reinstated if an Acquiring
Person reduces his beneficial ownership to 10% or less of the
outstanding shares of Common Stock in a transaction or series of
transactions not involving the Company. Under certain
circumstances set forth in the Rights Agreement, the decision to
redeem shall require the concurrence of a majority of the
Continuing Directors.
No fractional shares of Preferred Stock will be issued upon
the exercise of any Right or Rights evidenced hereby (other than
fractions which are integral multiples of one one-hundredth of a
share of Preferred Stock, which may, at the election of the Com-
pany, be evidenced by depositary receipts), but in lieu thereof a
cash payment will be made, as provided in the Rights Agreement.
No holder of this Rights Certificate shall be entitled to vote
or receive dividends or be deemed for any purpose the holder of
shares of Preferred Stock or of any other securities of the Company
which may at any time be issuable on the exercise hereof, nor shall
anything contained in the Rights Agreement or herein by construed
to confer upon the holder hereof, as such, any of the rights of a
stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meet-
ing thereof, or to give or withhold consent to any corporate ac-
tion, or, to receive notice of meetings or other actions affecting
stockholders (except as provided in the Rights Agreement), or to
receive dividends or subscription rights, or otherwise, until the
Right or Rights evidenced by this Rights Certificate shall have
been exercised as provided in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Rights
Agent.
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal.
Dated as of ____________, 19__
ATTEST: PEOPLES FIRST CORPORATION
___________________________ By
Secretary Title:
Countersigned:
BOATMEN'S TRUST COMPANY
By_________________________
Authorized Signature
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED ______________________________________________
hereby sells, assigns and transfers unto ________________________
_________________________________________________________________
(Please print name and address of transferee)
this Rights Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and
appoint __________________ Attorney, to transfer the within Rights
Certificate on the books of the within-named Company, with full
power of substitution.
Dated: __________, ____
_____________________________________
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) this Rights Certificate [ ] is [ ] is not being sold,
assigned and transferred by or on behalf of a Person who is or was
an Acquiring Person or an Affiliate or Associate of any such Person
(as such terms are defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights evidenced by
this Rights Certificate from any Person who is, was or subsequently
became, an Acquiring Person or an Affiliate or Associate of any
such Person.
Dated: ____________, ____ _________________________________
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment and Certificate must
correspond to the name as written upon the face of this Rights
Certificate in every particular, without alteration or enlargement
or any change whatsoever.
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise
Rights represented by the Rights Certificate.)
To: PEOPLES FIRST CORPORATION:
The undersigned hereby irrevocably elects to exercise
_____________ Rights represented by this Rights Certificate to
purchase the shares of Preferred Stock issuable upon the exercise
of the Rights (or such other securities of the Company or of any
other person which may be issuable upon the exercise of the Rights)
and requests that certificates for such shares be issued in the
name of and delivered to:
Please insert social security
or other identifying number
___________________________________________________________________
(Please print name and address)
___________________________________________________________________
If such number of Rights shall not be all the Rights evidenced
by this Rights Certificate, a new Rights Certificate for the
balance of such Rights shall be registered in the name of and
delivered to:
Please insert social security
or other identifying number
___________________________________________________________________
(Please print name and address)
___________________________________________________________________
Dated: ______________, ____
______________________________________
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the appro-
priate boxes that:
(1) the Rights evidenced by this Rights Certificate [ ]
are [ ] are not being exercised by or on behalf of a Person who is
or was an Acquiring Person or an Affiliate or Associate of any such
Person (as such terms are defined pursuant to the Rights
Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights evidenced by
this Rights Certificate from any Person who is, was or became an
Acquiring Person or an Affiliate or Associate of any such Person.
Dated: _______________, ____ _________________________________
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Election to Purchase and Cer-
tificate must correspond to the name as written upon the face of
this Rights Certificate in every particular, without alteration or
enlargement or any change whatsoever.
Exhibit C
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED STOCK
On January 18, 1995, the Board of Directors of Peoples First
Corporation (the "Company") declared a dividend distribution of one
Right for each outstanding share of the Company's Common Stock, no
par value (the "Common Stock"), to stockholders of record at the
close of business on January 31, 1995. Each Right entitles the
registered holder to purchase from the Company a unit consisting of
one-hundredth of a share (a "Unit") of Junior Participating
Preferred Stock (the "Preferred Stock") at a Purchase Price of
$60.00 per Unit, subject to adjustment. The description and terms
of the Rights are set forth in a Rights Agreement (the "Rights
Agreement") between the Company and Boatmen's Trust Company, as
Rights Agent.
Initially, the Rights will be attached to all Common Stock
certificates representing shares then outstanding, and no separate
Rights Certificates will be distributed. The Rights will separate
from the Common Stock and a Distribution Date will occur upon the
earlier of (i) 20 business days following a public announcement
that a person or group of affiliated or associated persons (an
"Acquiring Person") has acquired, or obtained the right to acquire,
beneficial ownership of 20% or more of the outstanding shares of
Common Stock (the "Stock Acquisition Date") or (ii) 20 business
days following the commencement of a tender offer or exchange offer
that would result in a person or group beneficially owning 30% or
more of such outstanding shares of Common Stock.
Until the Distribution Date, (i) the Rights will be evidenced
by the Common Stock certificates and will be transferred with and
only with such Common Stock certificates, (ii) new Common Stock
certificates issued after January 31, 1995, will contain a notation
incorporating the Rights Agreement by reference and (iii) the sur-
render for transfer of any certificates for Common Stock outstand-
ing will also constitute the transfer of the Rights associated with
the Common Stock represented by such certificate. Pursuant to the
Rights Agreement, the Company reserves the right to require before
the occurrence of a Triggering Event (as defined below) that, upon
any exercise of Rights, a number of Rights be exercised so that
only whole shares of Preferred Stock will be issued.
The Rights are not exercisable until the Distribution Date and
will expire at the close of business on January 31, 2005, unless
earlier redeemed by the Company as described below.
As soon as practicable after the Distribution Date, Rights
Certificates will be mailed to holders of record of the Common
Stock as of the close of business on the Distribution Date and,
thereafter, the separate Rights Certificates alone will represent
the Rights. Except as otherwise determined by the Board of Direc-
tors, only shares of Common Stock issued before the Distribution
Date will be issued with Rights.
If, at any time following the Distribution Date, (i) an
Acquiring Person engages in one or more "self-dealing" transactions
as set forth in the Rights Agreement, (ii) a person becomes the
Beneficial Owner of 30% or more of the then outstanding shares of
Common Stock (except pursuant to an offer for all outstanding
shares of Common Stock that a majority of the Continuing Directors
who are not officers of the Company determine to be fair to and
otherwise in the best interests of the Company and its
shareholders), or (iii) during such time as there is an Acquiring
Person, an event occurs that results in such Acquiring Person's
ownership interest being increased by more than 1% (e.g., a reverse
stock split), each holder of a Right will thereafter have the right
to receive, upon exercise, Common Stock (or, in certain
circumstances, cash, property or other securities of the Company)
having a value equal to two times the exercise price of the Right.
Notwithstanding any of the foregoing, following the occurrence of
any of the events set forth in this paragraph, all rights that are,
or (under certain circumstances specified in the Rights Agreement)
were beneficially owned by any Acquiring Person will be null and
void. However, Rights are not exercisable following the occurrence
of any of the events set forth above until such time as the Rights
are no longer redeemable by the Company as set forth below.
For example, at an exercise price of $60.00 per Right, each
Right not owned by an Acquiring Person (or by certain related
parties) following an event set forth in the preceding paragraph
would entitle its holder to purchase $120.00 worth of Common Stock
based on the current market price (as defined in the Agreement) of
the Common Stock for $60.00. Assuming that the current market
price of the Common Stock is $20.00, the holder of each valid Right
would be entitled to purchase six shares of Common Stock for
$60.00.
If, at any time following the Stock Acquisition Date, (i) the
Company is acquired in a merger or other business combination
transaction in which the Company is not the surviving corporation
(other than a merger which follows an offer described in the second
preceding paragraph), or (ii) 50% or more of the Company's assets
or earning power is sold or transferred, each holder of a Right
(except Rights which previously have been voided as set forth
above) shall thereafter have the right to receive, upon exercise,
common stock of the acquiring company having a value equal to two
times the exercise price of the Right. The events set forth in
this paragraph and in the second preceding paragraph are referred
to as the "Triggering Events."
The Purchase Price payable, and the number of Units of Pre-
ferred Stock or other securities or property issuable, upon exer-
cise of the Rights are subject to adjustment from time to time to
prevent dilution (i) in the event of a stock dividend on, or a
subdivision, combination or reclassification of, the Preferred
Stock, (ii) if holders of the Preferred Stock are granted certain
rights or warrants to subscribe for Preferred Stock or convertible
securities at less than the current market price of the Preferred
Stock, or (iii) upon the distribution to holders of the Preferred
Stock of evidences of indebtedness or assets (excluding regular
quarterly cash dividends) or of subscription rights or warrants
(other than those referred to above).
With certain exceptions, no adjustment in the Purchase Price
will be required until cumulative adjustments amount to at least 1%
of the Purchase Price. No fractional Units will be issued and, in
lieu thereof, an adjustment in cash will be made based on the
market price of the Preferred Stock on the last trading date before
the date of exercise.
At any time until twenty business days following the Stock
Acquisition Date, the Company may redeem the Rights in whole, but
not in part, at a price of $.01 per Right (payable in cash, Common
Stock or other consideration deemed appropriate by the Board of
Directors). Under certain circumstances set forth in the Rights
Agreement, the decision to redeem shall require the concurrence of
a majority of the Continuing Directors. After the redemption
period has expired, the Company's right of redemption may be
reinstated if an Acquiring Person reduces his beneficial ownership
to less than 10% of the outstanding shares of Common Stock in a
transaction or series of transactions not involving the Company.
Immediately upon the action of the Board of Directors ordering
redemption of the Rights, with, where required, the concurrence of
the Continuing Directors, the Rights terminate and the only right
of the holders of Rights will be to receive the $.01 redemption
price.
The term "Continuing Directors" means any member of the Board
of Directors of the Company who was a member of the Board before
the date of the Rights Agreement, and any person who is subse-
quently elected to the Board if such person is recommended or
approved by a majority of the Continuing Directors, but shall not
include an Acquiring Person or an affiliate or associate of an
Acquiring Person or any representative of the foregoing entities.
At any time after the Rights become exercisible for Common
Stock (or other consideration) of the Company, the Board of
Directors may exchange the Rights (other than Rights owned by an
Acquiring Person which have become void), in whole or in part, at
an exchange ratio of one Common Share, and/or other equity
securities deemed to have the same value as one Common Share, per
Right, subject to adjustment.
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. While the
distribution of the Rights will not be taxable to stockholders or
to the Company, stockholders may, depending upon the circumstances,
recognize taxable income if the Rights become exercisable for
Common Stock (or other consideration) of the Company or for common
stock of the acquiring company as set forth above, or are exchanged
as set forth above.
Other than those provisions relating to the principal economic
terms of the Rights, any of the provisions of the Rights Agreement
may be amended by the Board of Directors of the Company before the
Distribution Date. After the Distribution Date, the provisions of
the Rights Agreement may be amended by the Board (in certain cir-
cumstances, with the concurrence of the Continuing Directors) in
order to cure any ambiguity, to make changes which do not adversely
affect the interests of the holders of Rights (excluding the
interests of any Acquiring Person or an affiliate or associate of
any such person), or to shorten or lengthen any time period under
the Rights Agreement; provided, however, that no amendment to
adjust the time period governing redemption shall be made at such
time as the Rights are not redeemable.
A copy of the Rights Agreement has been filed with the Secu-
rities and Exchange Commission as an Exhibit to a Registration
Statement on Form 8-A dated January 18, 1995. A copy of the Rights
Agreement is available free of charge from the Rights Agent. This
summary description of the Rights does not purport to be complete
and is qualified in its entirety by reference to the Rights
Agreement, which is incorporated herein by reference.
