SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Filed pursuant to Section 13 or 15(d) of
THE SECURITIES EXCHANGE ACT OF 1934
May 4, 2000
Date of Earliest Event Reported
COMDISCO, INC.
(a Delaware Corporation)
6111 North River Road
Rosemont, Illinois 60018
Telephone (847) 698-3000
Commission file number 1-7725
I.R.S. Employer Identification Number 36-2687938
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Item 5 Other Events
A. On November 4, 1997, the Board of Directors of the Company adopted a
shareholder rights plan governed by the terms of a Rights Agreement (the
"Original Rights Agreement") and authorized and declared a dividend distribution
of one Right for each share of common stock, par value $0.10 per share, of the
Company (the "existing common stock") outstanding at the Close of Business on
November 17, 1997 (the "Record Date"), and has authorized the issuance of one
Right (as such number may be hereinafter adjusted pursuant to Section 11(i) or
11(p) hereof) for each share of existing common stock of the Company issued
between the Record Date (whether originally issued or delivered from the
Company's treasury) and the Distribution Date and, in certain circumstances
provided in Section 22 hereof, after the Distribution Date, each Right initially
representing the right to purchase one one-thousandth of a share of Series C
Junior Participating Preferred Stock, par value $0.10 per share (the "Series C
Preferred Shares"), of the Company having the rights, powers and preferences set
forth in the Exhibit A attached hereto, upon the terms and subject to the
conditions hereinafter set forth (the "Original Rights").
B. On April 20, 2000, the shareholders of the Company approved certain
amendments to the Company's Amended and Restated Articles of Incorporation (as
so amended, the "Restated Charter") authorizing the issuance of Comdisco, Inc.
-- Ventures Stock (the "Ventures Stock") as a new series of common stock and
redesignating (the "Redesignation") each share of existing common stock as one
share of Comdisco, Inc. -- Comdisco Stock (the "Comdisco Stock"). As of May 4,
2000 ("Redesignation Date"), the Board of Directors adopted this amendment and
restatement of the Original Agreement effective upon the Redesignation (as so
amended and restated, the "Agreement") and, conditioned upon and simultaneously
with the Redesignation, redesignated each Original Right as a Comdisco Right and
authorized the issuance of one Comdisco Right and one Ventures Right with
respect to each share of Comdisco Stock and Ventures Stock, respectively, that
shall become outstanding (i) after the Redesignation Date and before the
earliest of the Distribution Date, the Redemption Date and the Final Expiration
Date (as such terms are defined in Sections 3 and 7 hereof) or (ii) after the
Distribution Date but before the earlier of the Redemption Date or the Final
Expiration Date, if such Common Share became outstanding (A) upon the exercise
of a stock option, (B) pursuant to any employee plan or arrangement, or (C) upon
the conversion or exchange of a security which option, plan, arrangement or
security was granted, established or issued, as the case may be, by the Company
before the Distribution Date.
Each "Comdisco Right", as so redesignated, will continue to represent
the right to purchase one one-thousandth of a Series C Preferred Share having
the rights and preferences set forth in Exhibit A hereto, and each "Ventures
Right" will represent the right to purchase one one-thousandth of a share of
Series D Junior Participating Preferred Stock, par value $0.10 per share (the
"Series D Preferred Shares"), of the Company having the rights and preferences
set forth in the Restated Charter, in each such case upon the terms and subject
to the conditions therein set forth.
Item 7 Financial Statements and Exhibits
(c) Exhibits. The following documents are filed as exhibits to this current
report.
4.1. Amended and Restated Rights Agreement (the "Agreement"), dated as of
May 4, 2000, between the Registrant and ChaseMellon Shareholder
Services, L.L.C., as Rights Agent, effective as of the Redesignation
(as defined in the Agreement)
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this Current Report on Form 8-K to be signed on its
behalf by the undersigned hereunto duly authorized.
COMDISCO, INC.
Date: June 14, 2000 by: /s/David J. Keenan
------------------
David J. Keenan
Senior Vice President
and Controller
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COMDISCO, INC.
and
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
Rights Agent
-----------------------
Amended and Restated Rights Agreement
Dated as of May 4, 2000
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Execution Copy: May 4, 2000
Table of Contents
<TABLE>
Page
<S> <C> <C>
Section 1. Certain Definitions..........................................................................3
Section 2. Appointment of Rights Agent..................................................................7
Section 3. Issue of Rights Certificates.................................................................7
Section 4. Form of Rights Certificates..................................................................9
Section 5. Countersignature and Registration...........................................................10
Section 6. Transfer, Split Up, Combination and Exchange of Rights Certificates; Mutilated, Destroyed,
Lost or Stolen Rights Certificates..........................................................10
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights...............................11
Section 8. Cancellation and Destruction of Rights Certificates.........................................13
Section 9. Reservation and Availability of Capital Stock...............................................13
Section 10. Preferred Stock Record Date................................................................14
Section 11. Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights................15
Section 12. Certificate of Adjusted Purchase Price or Number of Shares.................................22
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power.......................22
Section 14. Fractional Rights and Fractional Shares....................................................24
Section 15. Rights of Action...........................................................................25
Section 16. Agreement of Rights Holders................................................................26
Section 17. Rights Certificate Holder Not Deemed a Stockholder.........................................26
Section 18. Concerning the Rights Agent................................................................27
Section 19. Merger or Consolidation or Change of Name of Rights Agent..................................27
Section 20. Duties of Rights Agent.....................................................................28
Section 21. Change of Rights Agent.....................................................................29
Section 22. Issuance of New Rights Certificates........................................................30
Section 23. Redemption and Termination.................................................................30
Section 24. Exchange...................................................................................31
Section 25. Notice of Certain Events...................................................................32
Section 26. Notices....................................................................................33
Section 27. Supplements and Amendments.................................................................33
Section 28. Successors.................................................................................34
Section 29. Determinations and Actions by the Board of Directors, etc..................................34
Section 30. Benefits of This Agreement.................................................................34
Section 31. Severability...............................................................................35
Section 32. Governing Law..............................................................................35
Section 33. Counterparts...............................................................................35
Section 34. Descriptive Headings.......................................................................35
EXHIBIT A.................................................................................................
EXHIBIT B-1...............................................................................................
EXHIBIT B-2...............................................................................................
</TABLE>
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AMENDED AND RESTATED RIGHTS AGREEMENT
AMENDED AND RESTATED RIGHTS AGREEMENT, is dated as of May 4, 2000 (the
"Agreement"), between COMDISCO, INC., a Delaware corporation (the "Company"),
and CHASEMELLON SHAREHOLDER SERVICES, L.L.C., a New Jersey limited liability
company (the "Rights Agent"), and shall be effective as of the Redesignation (as
defined herein).
W I T N E S S E T H
A. On November 4, 1997, the Board of Directors of the Company adopted a
shareholder rights plan governed by the terms of a Rights Agreement (the
"Original Rights Agreement") and authorized and declared a dividend distribution
of one Right for each share of common stock, par value $0.10 per share, of the
Company (the "existing common stock") outstanding at the Close of Business on
November 17, 1997 (the "Record Date"), and has authorized the issuance of one
Right (as such number may be hereinafter adjusted pursuant to Section 11(i) or
11(p) hereof) for each share of existing common stock of the Company issued
between the Record Date (whether originally issued or delivered from the
Company's treasury) and the Distribution Date and, in certain circumstances
provided in Section 22 hereof, after the Distribution Date, each Right initially
representing the right to purchase one one-thousandth of a share of Series C
Junior Participating Preferred Stock, par value $0.10 per share (the "Series C
Preferred Shares"), of the Company having the rights, powers and preferences set
forth in the Exhibit A attached hereto, upon the terms and subject to the
conditions hereinafter set forth (the "Original Rights").
B. On April 20, 2000, the shareholders of the Company approved certain
amendments to the Company's Amended and Restated Articles of Incorporation (as
so amended, the "Restated Charter") authorizing the issuance of Comdisco, Inc.
-- Ventures Stock (the "Ventures Stock") as a new series of common stock and
redesignating (the "Redesignation") each share of existing common stock as one
share of Comdisco, Inc. -- Comdisco Stock (the "Comdisco Stock"). As of May 4,
2000 ("Redesignation Date"), the Board of Directors adopted this amendment and
restatement of the Original Agreement effective upon the Redesignation (as so
amended and restated, the "Agreement") and, conditioned upon and simultaneously
with the Redesignation, redesignated each Original Right as a Comdisco Right and
authorized the issuance of one Comdisco Right and one Ventures Right with
respect to each share of Comdisco Stock and Ventures Stock, respectively, that
shall become outstanding (i) after the Redesignation Date and before the
earliest of the Distribution Date, the Redemption Date and the Final Expiration
Date (as such terms are defined in Sections 3 and 7 hereof) or (ii) after the
Distribution Date but before the earlier of the Redemption Date or the Final
Expiration Date, if such Common Share became outstanding (A) upon the exercise
of a stock option, (B) pursuant to any employee plan or arrangement, or (C) upon
the conversion or exchange of a security which option, plan, arrangement or
security was granted, established or issued, as the case may be, by the Company
before the Distribution Date.
Each "Comdisco Right", as so redesignated, will continue to represent
the right to purchase one one-thousandth of a Series C Preferred Share having
the rights and preferences set forth in Exhibit A hereto, and each "Ventures
Right" will represent the right to purchase one one-thousandth of a share of
Series D Junior Participating Preferred Stock, par value $0.10 per share (the
"Series D Preferred Shares"), of the Company having the rights and preferences
set forth in the Restated Charter, which is attached as Exhibit A hereto, in
each such case upon the terms and subject to the conditions herein set forth.
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)(i) Except as provided in Clause (ii), "Acquiring Person"
shall mean any Person who or which, together with all Affiliates and Associates
of such Person, shall be the Beneficial Owner of shares representing 15% or more
of the total Voting Rights of all Common Stock then outstanding, but shall not
include (A) the Company, (B) any Subsidiary of the Company, (C) any employee
benefit plan of the Company or of any Subsidiary of the Company, (D) any Person
organized, appointed or established by the Company for or pursuant to the terms
of any such plan or (E) any Person who has reported or is required to report
such ownership (but less than 25%) on Schedule 13G under the Exchange Act(or any
comparable or successor report) or on Schedule 13D under the Exchange Act (or
any comparable or successor report) which Schedule 13D does not state any
intention to or reserve the right to control or influence the management or
policies of the Company or engage in any of the actions specified in Item 4 of
such Schedule (other than the disposition of Common Stock and, within 10
Business Days of being requested by the Company to advise it regarding the same,
certifies to the Company that such Person acquired shares representing in excess
of 14.9% of the total Voting Rights of all Common Stock then outstanding,
inadvertently or without knowledge of the terms of the Rights and who, together
with all Affiliates and Associates, thereafter does not acquire additional
shares of Common Stock while the Beneficial Owner of shares representing 15% or
more of the total Voting Rights of all Common Stock then outstanding, provided,
however, that if the Person described in this clause (E) requested to so certify
fails to do so within 10 Business Days, then such Person shall become an
Acquiring Person immediately after such 10 Business Day Period.
(ii) None of the following shall be considered an "Acquiring Person":
(A) any Person (an "Existing Holder") who, at the Redesignation
Date, together with all Affiliates and Associates of such
Existing Holder, is the Beneficial Owner of shares representing
20% or more of the total Voting Rights of all Common Stock then
outstanding, until such time as such Existing Holder or any
Affiliate or Associate of such Existing Holder shall become the
Beneficial Owner of any additional shares of Common Stock or any
other Person who is the Beneficial Owner of any such shares shall
become an Affiliate or Associate of such Existing Holder, if
after giving effect to such additional shares or the shares
beneficially owned by such other Person, such Existing Holder,
together with all Affiliates and Associates of such Existing
Holder, shall be the Beneficial Owner of shares representing 30%
or more of the total Voting Rights of all Common Stock then
outstanding;
(B) any Person (a "Passive Holder," which term shall include any
Existing Holder) who, solely as a result of either (1) a
reduction in the number of shares of any series Common Stock
outstanding due to the repurchase of Common Stock by the Company
or (2) any adjustment in the Voting Rights of the Ventures Stock
in accordance with the provisions of the Company's Restated
Charter ("Voting Rights Adjustment"), shall become, together with
all Affiliates and Associates of such Passive Holder after such
repurchase, the Beneficial Owner of shares representing 15% or
more (30% or more, in the case of any Existing Holder) of the
total Voting Rights of all Common Stock then outstanding, unless
and until such time as such Passive Holder or any Affiliate or
Associate of such Passive Holder shall become the Beneficial
Owner of any additional shares of Common Stock or any other
Person who is the Beneficial Owner of any shares of Common Stock
shall become an Affiliate or Associate of such Passive Holder, if
after giving effect to such additional shares or the shares
beneficially owned by such other Person, such Passive Holder,
together with all Affiliates and Associates of such Passive
Holder, shall be the Beneficial Owner of shares representing 15%
or more (30% or more, in the case of any Existing Holder) of the
total Voting Rights of all Common Stock then outstanding. Each of
the Existing Holder's successors in interest that would
beneficially own, as a result of the transfer to such successor
of any shares of Common Stock beneficially owned by an Existing
Holder ("Existing Holder Shares"), shares representing 15% or
more of the total Voting Rights of all Common Stock then
outstanding shall be treated as an Existing Holder. An Existing
Holder's successors in interest shall be (i) the beneficiaries
(whether by testate or intestate succession) of the Existing
Holder's estate and the trustee (in his fiduciary capacity) or
beneficiary of any trust who obtains (by reason of the Existing
Holder's death) beneficial ownership of any Existing Holder
Shares (ii) the Existing Holder's estate, (iii) donees of the
Existing Holder who are the Existing Holder's lineal descendants
(including Persons adopted prior to attaining the age of 21
years) and the spouses of such lineal descendants (iv) Qualified
Charitable Organizations, (v) trusts for the exclusive benefit of
Persons listed in clauses (iii) and (iv) (including split
interest trusts and the trustee (in his fiduciary capacity) of
any such trust, (vi) partnerships, limited liability companies
and corporations in which the Persons listed in clause (iii) are
the exclusive partners, members or shareholders, as the case may
be, and (vii) the Affiliates and Associates of the Persons listed
in the foregoing clauses (i) through (vi); or
(C) any Person who shall have become an Acquiring Person solely
as the result of either (i) an acquisition of Common Stock by the
Company which, by reducing the number of shares outstanding,
increases the proportionate number of shares beneficially owned
by a Person to shares representing 15% or more of the total
Voting Rights of all Common Stock of the Company then outstanding
as determined above; provided, however, that if a Person becomes
the Beneficial Owner of shares representing 15% or more of the
total Voting Rights of all Common Stock of the Company then
outstanding (as determined above) solely by reason of purchases
of the Common Stock by the Company or as a result of a Voting
Rights Adjustment and shall, after such purchases by the Company
or such Voting Rights Adjustment, become the Beneficial Owner of
any additional shares of Common Stock by any means whatsoever,
then such Person shall be deemed to be an Acquiring Person.
(b) "Adverse Person" shall mean any Person declared to be an
Adverse Person by the Board of Directors upon determination
that the criteria set forth in Section 11(a)(ii)(B) apply to
such Person; provided, however, that the Board of Directors
shall not declare any Existing Holder to be an Adverse Person;
provided, further, that the Board of Directors shall not
declare any Person who is the Beneficial Owner of shares
representing 10% or more of the total Voting Rights of all
Common Stock of the Company then outstanding to be an Adverse
Person if such Person has reported or is required to report
such ownership on Schedule 13G under the Exchange Act (or any
comparable or successor report) or on Schedule 13D under the
Exchange Act (or any comparable or successor report) which
Schedule 13D does not state any intention to or reserve the
right to control or influence the management or policies of the
Company or engage in any of the actions specified in Item 4 of
such Schedule (other than the disposition of Common Stock) so
long as such Person neither reports nor is required to report
such ownership other than as described in this proviso to
Section 1(b).
(c) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of
1934, as amended and as in effect on the date of this Agreement
(the "Exchange Act").
(d) A Person shall be deemed the "Beneficial Owner" of, and
shall be deemed to "beneficially own," any securities:
(i) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to acquire
(whether such right is exercisable immediately or only after
the passage of time) pursuant to any agreement, arrangement or
understanding (whether or not in writing) or upon the exercise
of conversion rights, exchange rights, other rights, warrants
or options, or otherwise; provided, however, that a Person
shall not be deemed the "Beneficial Owner" of, or to
"beneficially own," (A) securities tendered pursuant to a
tender or exchange offer made by such Person or any of such
Person's Affiliates or Associates until such tendered
securities are accepted for purchase or exchange, or (B)
securities issuable upon exercise of Rights at any time prior
to the occurrence of a Triggering Event, or (C) securities
issuable upon exercise of Rights from and after the occurrence
of a Triggering Event which Rights were acquired by such Person
or any of such Person's Affiliates or Associates prior to the
Distribution Date or pursuant to Section 3(a) hereof or Section
22 hereof (the "Original Rights") or pursuant to Section 11(i)
or 11(p) hereof in connection with an adjustment made with
respect to any Original Rights;
(ii) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to vote or
dispose of or has "beneficial ownership" of (as determined
pursuant to Rule 13d-3 of the General Rules and Regulations
under the Exchange Act), including pursuant to any agreement,
arrangement or understanding, whether or not in writing;
provided, however, that a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially own," any security
under this subparagraph (ii) as a result of an agreement,
arrangement or understanding to vote such security if such
agreement, arrangement or understanding: (A) arises solely from
a revocable proxy given in response to a public proxy or
consent solicitation made pursuant to, and in accordance with,
the applicable provisions of the General Rules and Regulations
under the Exchange Act, and (B) is not also then reportable by
such Person on Schedule 13D under the Exchange Act (or any
comparable or successor report); or
(iii) which are beneficially owned, directly or indirectly, by
any other Person (or any Affiliate or Associate thereof) with
which such Person (or any of such Person's Affiliates or
Associates) has any agreement, arrangement or understanding
(whether or not in writing), for the purpose of acquiring,
holding, voting (except pursuant to a revocable proxy as
described in the proviso to subparagraph (ii) of this paragraph
(d)) or disposing of any voting securities of the Company;
provided, however, that nothing in this paragraph (d) shall
cause a Person engaged in business as an underwriter of
securities to be the "Beneficial Owner" of, or to "beneficially
own," any securities acquired through such Person's
participation in good faith in a firm commitment underwriting
until the expiration of 40 days after the date of such
acquisition.
(e) "Business Day" shall mean any day other than a Saturday,
Sunday or a day on which banking institutions in the State of
New York or the city in which the office of the Rights Agent is
located are authorized or obligated by law or executive order
to close. (f) "Close of Business" on any given date shall mean
5:00 P.M., New York City time, on such date; provided, however,
that if such date is not a Business Day it shall mean 5:00
P.M., New York City time, on the next succeeding Business Day.
(g) "Comdisco Right" shall be the meaning set forth in Recital
B of this Agreement.
(h) "Comdisco Stock" shall be the meaning set forth in Recital
B of this Agreement.
(i) "Common Stock" when used in reference to the Company shall
mean shares of Comdisco Stock and/or Ventures Stock, as the
context requires, or other shares of capital stock of the
Company into which Comdisco Stock or Ventures Stock shall be
re-classified or changed. "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.
(j) "Current Market Price" shall have the meaning ascribed to
such term in Section 11(d) hereof.
(k) "Person" shall mean any individual, firm, corporation,
partnership, limited liability company, trust or other entity
and shall include any successor (by merger or otherwise) to
such entity.
(m) "Preferred Stock" shall mean the Series C Preferred Shares
and/or the Series F Preferred Shares, as the context requires,
and, to the extent there are not sufficient Series C Preferred
Shares or Series D Preferred Shares authorized to permit full
exercise of the Rights, any other series of Preferred Stock,
par value $0.10 per share, of the Company designated for such
purpose containing terms substantially similar to the terms of
Series C Preferred Shares or Series D Preferred Shares,
respectively.
(n) "Qualified Charitable Organization" shall mean a charitable
organization described in all of Section 170(c), Section
2055(a) and Section 2522(a) of the Internal Revenue Code of
1986, as amended (or any successor or substitute statute),
contributions to which are deductible for United States income,
estate and gift tax purposes at the time of any transfer to or
for the benefit of or in trust for such organization.
(o) "Section 11 Event" shall mean any event described in
Section 11(a)(ii)(A) or (B).
(p) "Section 13 Event" shall mean any event described in
clauses (x), (y) or (z) of Section 13(a) hereof.
(q) "Series C Preferred Stock" shall have the meaning set forth
in Recital A of this Agreement.
(r) "Series D Preferred Stock" shall have the meaning set forth
in Recital B of this Agreement.
(s) "Stock Acquisition Date" shall mean the first date of
public announcement (which, for purposes of this definition,
shall include, without limitation, a report filed pursuant to
Section 13(d) under the Exchange Act) by the Company or an
Acquiring Person that an Acquiring Person has become such.
(t) "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.
(u) "Triggering Event" shall mean any Section 11 Event or any
Section 13 Event.
(v) "Ventures Stock" shall have the meaning set forth in
Recital B of this Agreement a series of Common Stock registered
with the Securities and Exchange Commission (the "SEC")
designated as such.
(x) "Ventures Rights" shall have the meaning set forth in
Recital B of this Agreement.
(y) "Voting Rights" when used with reference to the capital
stock of, or units of equity interest in, any Person shall mean
the number of votes entitled to be cast generally in the
election of directors of such Person (if such Person is a
corporation) or to participate in the management and control of
such Person (if such Person is not a corporation).
Section 2. Appointment of Rights Agent. The Company hereby appoints the
Rights Agent to act as agent for the Company in accordance with the terms and
conditions hereof, and the Rights Agent hereby accepts such appointment. The
Company may from time to time appoint such Co-Rights Agents as it may deem
necessary or desirable. The Rights Agent shall have no duty to supervise, and in
no event shall be liable for, the acts or omissions of any such co-Rights Agent.
Section 3. Issue of Rights Certificates.
(a) Until the earliest of (i) the Close of Business on the
tenth day after the Stock Acquisition Date (or, if the tenth day after the Stock
Acquisition Date occurs before the Record Date, the Close of Business on the
Record Date), (ii) the Close of Business on the tenth Business Day (or such
later date as the Board of Directors shall determine) after the date that a
tender or exchange offer by any Person (other than the Company, any Subsidiary
of the Company, any employee benefit plan of the Company or of any Subsidiary of
the Company or any Person organized, appointed or established by the Company for
or pursuant to the terms of any such plan) is first published or sent or given
within the meaning of Rule 14d-2(a) of the General Rules and Regulations under
the Exchange Act, if upon consummation thereof, such Person would be the
Beneficial Owner of 15% or more of the total Voting Rights of all Common Stock
then outstanding or (iii) the Close of Business on the tenth Business Day after
the Board of Directors determines, pursuant to the criteria set forth in Section
11(a)(ii)(B) hereof, that a Person is an Adverse Person (the earliest of (i),
(ii) and (iii) being herein referred to as the "Distribution Date"), (x) the
Rights will be evidenced (subject to the provisions of paragraph (b) of this
Section 3) by the certificates for the Common Stock registered in the names of
the holders of the Common Stock (which certificates for Common Stock shall be
deemed also to be certificates for their respective Rights) and not by separate
certificates, and (y) the Rights will be transferable only in connection with
the transfer of the underlying shares of the Common Stock (including a transfer
to the Company). As soon as practicable 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
right certificates, (the "Rights Certificates"), evidencing one Right for each
share of Common Stock so held, subject to adjustment as provided herein. In the
event that an adjustment in the number of Rights per share of Common Stock has
been made pursuant to Section 11(i) or 11(p) hereof, at the time of distribution
of the Rights Certificates, the Company shall make the necessary and appropriate
rounding adjustments (in accordance with Section 14(a) hereof) so that Rights
Certificates representing only whole numbers of Rights are distributed and cash
is paid in lieu of any fractional Rights. As of and after the Distribution Date,
the Rights will be evidenced solely by such Rights Certificates.
(b) With respect to certificates for the Comdisco Stock
outstanding as of the Redesignation Date, until the Distribution Date, the
Rights will be evidenced by such certificates for the Comdisco Stock and the
registered holders of the Comdisco 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 Comdisco Stock in respect of which
Rights have been issued shall also constitute the transfer of the Rights
associated with such shares of Comdisco Stock.
(c) Rights shall be issued in respect of all shares of Common
Stock which are issued (whether originally issued or delivered from the
Company's treasury) after the Redesignation Date but prior to the earlier of the
Distribution Date or the Expiration Date or, in certain circumstances provided
in Section 22 hereof, after the Distribution Date. Certificates representing
such shares of Common Stock shall also be deemed to be certificates for Rights,
and shall bear the following legend:
This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in the Rights Agreement between Comdisco,
Inc. (the "Company") and ChaseMellon Shareholder Services, L.L.C.,
dated as of November 17, 1997, as amended on May 4, 2000 and from time
to time further amended (the "Rights Agreement"), the terms of which
are hereby incorporated herein by reference and a copy of which is on
file at the principal 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 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 an Adverse 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 Expiration Date, the Rights
associated with the Comdisco Stock represented by such certificates shall be
evidenced by such certificates alone and registered holders of Comdisco 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 Comdisco 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-1 (in the case of a Comdisco
Right) or Exhibit B-2 hereto (in the case of a Venture Right) hereto and may
have such marks of identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate which do not
affect the duties or responsibilities of the Rights Agent 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-thousandths
of a share of Preferred Stock as shall be set forth therein at the price set
forth therein (such exercise price per one one-thousandth 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, an Adverse Person or any Associate or Affiliate of an Acquiring Person
or Adverse Person, (ii) a transferee of an Acquiring Person or Adverse Person
(or of any such Associate or Affiliate) who becomes a transferee after the
Acquiring Person or Adverse Person becomes such, or (iii) a transferee of an
Acquiring Person or Adverse Person (or of any such Associate or Affiliate) who
becomes a transferee prior to or concurrently with the Acquiring Person or
Adverse Person becoming such and receives such Rights pursuant to either (A) a
transfer (whether or not for consideration) from the Acquiring Person or Adverse
Person to holders of equity interests in such Acquiring Person or Adverse Person
or to any Person with whom such Acquiring Person or Adverse Person has any
continuing agreement, arrangement or understanding regarding the transferred
Rights or (B) a transfer which the Board of Directors of the Company has
determined is part of a plan, arrangement or understanding which has as a
primary purpose or effect the avoidance of Section 7(e) hereof, and any Rights
Certificate issued pursuant to Section 6 or Section 11 hereof upon transfer,
exchange, replacement or adjustment of any other Rights Certificate referred to
in this sentence, shall contain (to the extent feasible) the following legend:
The Rights represented by this Rights Certificate are or were
beneficially owned by a Person who was or became an Acquiring Person,
Adverse Person or an Affiliate or Associate of an Acquiring Person or
Adverse Person (as such terms are defined in the Rights Agreement).
Accordingly, this Rights Certificate and the Rights represented hereby
may become null and void in the circumstances specified in Section 7(e)
of 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, its President or any Vice President,
either manually or by facsimile signature, and shall have affixed thereto the
Company's seal or a facsimile thereof which shall be attested by the Secretary
or an Assistant Secretary of the Company, either manually or by facsimile
signature. The Rights Certificates shall be countersigned by the Rights Agent,
either manually or by facsimile signature, and shall not be valid for any
purpose unless so countersigned. In case any officer of the Company who shall
have signed any of the Rights Certificates shall cease to be such officer of the
Company before countersignature by the Rights Agent and issuance and delivery by
the Company, such Rights Certificates, nevertheless, may be countersigned by the
Rights Agent and issued and delivered by the Company with the same force and
effect as though the person who signed such Rights Certificates had not ceased
to be such officer of the Company; and any Rights Certificate may be signed on
behalf of the Company by any person who, at the actual date of the execution of
such Rights Certificate, shall be a proper officer of the Company to sign such
Rights Certificate, although at the date of the execution of this Rights
Agreement any such person was not such an officer.
(b) Following the Distribution Date and receipt by the Rights
Agent of all necessary information, the Rights Agent will keep or cause to be
kept, at its office or offices designated as the appropriate place for surrender
of Rights Certificates upon exercise or transfer, books for registration and
transfer of the Rights Certificates issued hereunder. Such books shall show the
names and addresses of the respective holders of the Rights Certificates, the
number of Rights evidenced on its face by each of the Rights Certificates and
the date of each of the Rights Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen Rights Certificates.
(a) Subject to the provisions of Section 4(b), Section 7(e)
and Section 14 hereof, at any time after the Close of Business on the
Distribution Date, and at or prior to the Close of Business on the Expiration
Date, any Rights Certificate or Certificates (other than Rights Certificates
representing Rights that have been exchanged pursuant to Section 24 hereof) may
be transferred, split up, combined or exchanged for another Rights Certificate
or Certificates, entitling the registered holder to purchase a like number of
one one-thousandths of a share of Preferred Stock (or, following a Triggering
Event, such Common Stock, other securities, cash or other assets, as the case
may be) as the Rights Certificate or Certificates surrendered then entitled such
holder (or former holder in the case of a transfer) to purchase. Any registered
holder desiring to transfer, split up, combine or exchange any Rights
Certificate or Certificates shall make such request in writing delivered to the
Rights Agent, and shall surrender the Rights Certificate or Certificates to be
transferred, split up, combined or exchanged at the office or offices of the
Rights Agent designated for such purpose. Neither the Rights Agent nor the
Company shall be obligated to take any action whatsoever with respect to the
transfer of any such surrendered Rights Certificate or Certificates until the
registered holder shall have completed and signed the certificate contained in
the form of assignment set forth on the reverse side of such Rights Certificate
and shall have provided such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates
thereof as the Company shall reasonably request. Thereupon the Rights Agent
shall, subject to Sections 4(b), 7(e), 14 and 24 hereof, countersign and deliver
to the Person entitled thereto a Rights Certificate or Certificates, as the case
may be, as so requested. The Company may require payment of a sum sufficient to
cover any tax or charge that may be imposed in connection with any transfer,
split up, combination or exchange of Rights Certificates. The Rights Agent shall
have no duty or obligation under this Section unless and until it is satisfied
that any such taxes and/or charges have been paid.
(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 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 and properly executed, to the
Rights Agent at the 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-thousandths 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 prior to the earliest of (i) the
Close of Business on November 17, 2007 (the "Final Expiration Date"), (ii) the
time at which the Rights are redeemed as provided in Section 23 hereof, or
(iii), the time at which such Rights are exchanged pursuant to Section 24 hereof
(the earliest of (i), (ii) and (iii) being herein referred to as the "Expiration
Date").
(b) The Purchase Price for each one one-thousandth of a share
of Series C Preferred Stock pursuant to the exercise of a Comdisco Right shall
initially be $75 (as adjusted, the "Series C Purchase Price"). The Purchase
Price for each one one-thousandth of a share of Series D Preferred Stock
pursuant to the exercise of a Ventures Right shall initially be $180 (as
adjusted, the "Series D Purchase Price"). The Series C Purchase Price and the
Series D Purchase Price 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. References in this Agreement to the "Purchase Price" shall
mean the Series C Purchase Price and/or the Series D Purchase Price, as the
context requires.
(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 and properly executed, accompanied by payment, with respect to
each Right so exercised, of the Purchase Price per one one-thousandth 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 tax or charge, 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) certificates for the total number of one
one-thousandths 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-thousandths of a share of Preferred Stock as
are to be purchased (in which case certificates for the shares of Preferred
Stock represented by such receipts shall be deposited by the transfer agent with
the depositary agent) and the Company will direct the depositary agent to comply
with such request, (ii) requisition from the Company the amount of cash, if any,
to be paid in lieu of fractional shares in accordance with Section 14 hereof,
(iii) after receipt of such certificates or depositary receipts, cause the same
to be delivered to or upon the order of the registered holder of such Rights
Certificate, registered in such name or names as may be designated by such
holder, and (iv) after receipt thereof, deliver such cash, if any, to or upon
the order of the registered holder of such Rights Certificate. The payment of
the Purchase Price (as such amount may be reduced pursuant to Section 11(a)(iii)
hereof) shall be made in cash or by certified bank check or bank draft payable
to the order of the Company. In the event that the Company is obligated to issue
other securities (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 prior to 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 Certificate
shall exercise less than all the Rights evidenced thereby, a new Rights
Certificate evidencing Rights equivalent to the Rights remaining unexercised
shall be issued by the Rights Agent and delivered to, or upon the order of, the
registered holder of such Rights Certificate, registered in such name or names
as may be designated by such holder, subject to the provisions of Section 14
hereof.
(e) Notwithstanding anything in this Agreement to the
contrary, from and after the first occurrence of a Section 11 Event, any Rights
beneficially owned by (i) an Acquiring Person, an Adverse Person or an Associate
or Affiliate of an Acquiring Person or Adverse Person, (ii) a transferee of an
Acquiring Person or Adverse Person (or of any such Associate or Affiliate) who
becomes a transferee after the Acquiring Person or Adverse Person becomes such,
or (iii) a transferee of an Acquiring Person or Adverse Person (or of any such
Associate or Affiliate) who becomes a transferee prior to or concurrently with
the Acquiring Person or Adverse Person becoming such and receives such Rights
pursuant to either (A) a transfer (whether or not for consideration) from the
Acquiring Person or Adverse Person to holders of equity interests in such
Acquiring Person or Adverse Person or to any Person with whom the Acquiring
Person or Adverse Person has any continuing agreement, arrangement or
understanding regarding the transferred Rights or (B) a transfer which the Board
of Directors of the Company has determined is part of a plan, arrangement or
understanding which has as a primary purpose or effect the avoidance of this
Section 7(e), shall become null and void without any further action, and no
holder of such Rights shall have any rights whatsoever with respect to such
Rights, whether under any provision of this Agreement or otherwise. The Company
shall use all reasonable efforts to insure that the provisions of this Section
7(e) and Section 4(b) hereof are complied with, but shall have no liability to
any holder of Rights Certificates or other Person as a result of its failure to
make any determinations with respect to an Acquiring Person or Adverse Person or
any of their respective Affiliates, Associates or transferees hereunder.
(f) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Company shall be obligated to
undertake any action with respect to a registered holder upon the occurrence of
any purported exercise as set forth in this Section 7 unless such registered
holder shall have (i) completed and signed the certificate contained in the form
of election to purchase set forth on the reverse side of the Rights Certificate
surrendered for such exercise, and (ii) provided such additional evidence of the
identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or
Associates thereof as the Company or the Rights Agent shall reasonably request.
Section 8. Cancellation and Destruction of Rights Certificates. All
Rights Certificates surrendered for the purpose of exercise, transfer, split up,
combination or exchange shall, if surrendered to the Company or any of its
agents, be delivered to the Rights Agent for cancellation or in cancelled form,
or, if surrendered to the Rights Agent, shall be cancelled by it, and no Rights
Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Agreement. The Company shall deliver to the Rights
Agent for cancellation and retirement, and the Rights Agent shall so cancel and
retire, any other Rights Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights Agent shall deliver all
cancelled Rights Certificates to the Company, or shall, at the written request
of the Company, destroy such cancelled Rights Certificates, and in such case
shall deliver a certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Capital Stock.
---------------------------------------------------------
(a) The Company covenants and agrees that it will cause to be
reserved and kept available out of its authorized and unissued shares of
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
any authorized and issued shares of Common Stock held in its treasury), the
number of shares of Preferred Stock (and, following the occurrence of a
Triggering Event, shares of Common Stock and/or other securities) that, as
provided in this Agreement including Section 11(a)(iii) hereof, will be
sufficient to permit the exercise in full of all outstanding Rights.
(b) So long as the shares of Preferred Stock (and, following
the occurrence of a Triggering Event, shares of Common Stock and/or other
securities) issuable and deliverable upon the exercise of the Rights may be
listed on any national securities exchange, the Company shall use its best
efforts to cause, from and after such time as the Rights become exercisable (but
only to the extent that it is reasonably likely that the Rights will be
exercised), all shares reserved for such issuance to be listed on such exchange
upon official notice of issuance upon such exercise.
(c) The Company shall use its best efforts to (i) file, as
soon as practicable following the earliest date after the first occurrence of a
Section 11 Event on which the consideration to be delivered by the Company upon
exercise of the Rights has been determined pursuant to this Agreement (including
in accordance with Section 11(a)(iii) hereof), or as soon as is required by law
following the Distribution Date, as the case may be, a registration statement
under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the securities purchasable upon exercise of the Rights on an
appropriate form, (ii) cause such registration statement to become effective as
soon as practicable after such filing, and (iii) cause such registration
statement to remain effective (with a prospectus at all times meeting the
requirements of the Securities Act) until the earlier of (A) the date as of
which the Rights are no longer exercisable for such securities, and (B) the
Expiration Date. The Company will also take such action as may be appropriate
under, or to ensure compliance with, the securities or "blue sky" laws of the
various states in connection with the exercisability of the Rights. The Company
may temporarily suspend, for a period of time not to exceed ninety (90) days
after the date set forth in clause (i) of the first sentence of this Section
9(c), the exercisability of the Rights in order to prepare and file such
registration statement and permit it to become effective. Upon any such
suspension, the Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended, as well as a public
announcement at such time as the suspension is no longer in effect in each case
with prompt notice thereof to the Rights Agent. In addition, if the Company
shall determine that a registration statement is required following the
Distribution Date, the Company may temporarily suspend the exercisability of the
Rights until such time as a registration statement has been declared effective
with notice of such suspension to the Rights Agent. Notwithstanding any
provision of this Agreement to the contrary, the Rights shall not be exercisable
in any jurisdiction if the requisite qualification in such jurisdiction shall
not have been obtained or the exercise thereof shall not be permitted under
applicable law or a registration statement shall not have been declared
effective.
(d) The Company covenants and agrees that it will take all
such action as may be necessary to ensure that all one one-thousandths of a
share of Preferred Stock (and, following the occurrence of a Triggering Event,
shares of Common Stock and/or other securities) delivered upon exercise of
Rights shall, at the time of delivery of the certificates for such shares
(subject to payment of the Purchase Price), be duly and validly authorized and
issued and fully paid and nonassessable.
(e) The Company further covenants and agrees that it will pay
when due and payable any and all taxes and charges which may be payable in
respect of the issuance or delivery of the Rights Certificates and of any
certificates for a number of one one-thousandths 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 tax or charge
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-thousandths of a share of Preferred Stock (or Common Stock and/or other
securities, as the case may be) in respect of a name other than that of, the
registered holder of the Rights Certificates evidencing Rights surrendered for
exercise or to issue or deliver any certificates for a number of one
one-thousandths 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 or charge shall have been
paid (any such tax or charge being payable by the holder of such Rights
Certificates at the time of surrender) or until it has been established to the
Company's satisfaction that no such tax or charge is due.
Section 10. Preferred Stock Record Date. Each person in whose name any
certificate for a number of one one-thousandths 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 Certificate
evidencing such Rights was duly surrendered and payment of the Purchase Price
(and all applicable transfer taxes or charges) was made; provided, 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 certificate
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. Prior to the exercise of the Rights evidenced thereby, the
holder of a Rights Certificate 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) In the event 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 prior to 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 dividend,
subdivision, combination or reclassification. If an event occurs which would
require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii)
hereof, the adjustment provided for in this Section 11(a)(i) shall be in
addition to, and shall be made prior to, any adjustment required pursuant to
Section 11(a)(ii) hereof.
(ii) In the event:
(A) any Person, at any time after the Rights Dividend
Declaration Date, shall become an Acquiring Person, unless the
event causing such Person to become an Acquiring Person is a
transaction set forth in Section 13(a) hereof, or is an
acquisition of shares of Common Stock pursuant to a tender
offer or exchange offer for all outstanding shares of Common
Stock at a price and on terms determined by at least a majority
of the members of the Board of Directors who are not officers
of the Company and who are not representatives, nominees,
Affiliates or Associates of an Acquiring Person, after
receiving advice from one or more investment banking firms, to
be (a) at a price which is fair to stockholders (taking into
account all factors which such members of the Board deem
relevant, including, without limitation, prices which could
reasonably be achieved if the Company or its assets were sold
on an orderly basis designed to realize maximum value) and (b)
otherwise in the best interests of the Company and its
stockholders (a "Qualifying Offer"), or
(B) the Board of Directors of the Company shall declare any
Person to be an Adverse Person, upon a determination that such
Person, alone or together with its Affiliates and Associates,
has, at any time after this Agreement has been filed with the
Securities and Exchange Commission as an exhibit to a filing
under the Exchange Act, become the Beneficial Owner of Common
Stock which the Board of Directors of the Company determines to
be substantial (which number of shares shall in no event
represent less than that number of shares representing 10% or
more of the total Voting Rights of all Common Stock of the
Company then outstanding) and a determination by the Board of
Directors of the Company, after reasonable inquiry and
investigation, including consultation with such persons as such
directors shall deem appropriate and consideration of such
factors as are permitted by applicable law, that (a) such
Beneficial Ownership by such Person is intended to cause the
Company to repurchase the shares of Common Stock beneficially
owned by such Person or to cause pressure on the Company to
take action or enter into a transaction or series of
transactions intended to provide such Person with short-term
financial gain under circumstances where the Board of Directors
determines that the best long-term interests of the Company
would not be served by taking such action or entering into such
transaction or series of transactions at that time or (b) such
Beneficial Ownership is causing or reasonably likely to cause a
material adverse impact (including, but not limited to,
impairment of relationships with customers or impairment of the
Company's ability to maintain its competitive position) on the
business or prospects of the Company, on the Company's
employees, customers or suppliers or on the communities in
which the Company operates or is located,
then, promptly following the occurrence of any event described in Section
11(a)(ii)(A) or (B) hereof, proper provision shall be made so that each holder
of a Right (except as provided below and in Section 7(e) hereof) shall
thereafter have the right to receive, upon exercise thereof, at the then current
Purchase Price in accordance with the terms of this Agreement, in lieu of a
number of one one-thousandths of a share of Preferred Stock, such number of
shares of Comdisco Stock (in the case of a Comdisco Right) or Ventures Stock (in
the case of a Ventures Right) as shall equal the result obtained by (x)
multiplying the then current Purchase Price by the then number of one
one-thousandths of a share of Preferred Stock for which a Right was exercisable
immediately prior to the first occurrence of a Section 11 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 per share of the applicable
series of Common Stock (determined pursuant to Section 11(d) hereof) on the date
of such first occurrence (such number of shares, the "Adjustment Shares").
(iii) In the event that the number of shares of Comdisco Stock
or Ventures Stock which are authorized by the Company's Restated Charter, 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 Comdisco
Rights or Venture Rights, as the case may be, in accordance with the foregoing
subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the
excess of (1) the value of the Adjustment Shares issuable upon the exercise of
each such Right (the "Current Value") over (2) the Purchase Price (such excess,
the "Spread"), and (B) with respect to each such Right, subject to Section 7(e)
hereof, make adequate provision to substitute for the Adjustment Shares, upon
the exercise of such Rights and 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 essentially the same value or economic rights as shares of
Comdisco Stock or Ventures Stock, as applicable (such shares or units of shares
of preferred stock are referred to herein as "Common Stock Equivalents"), (4)
debt securities of the Company, (5) other assets, or (6) any combination of the
foregoing, having an aggregate value equal to the Current Value (less the amount
of any reduction in the Purchase Price), where such aggregate value has been
determined by the Board of Directors of the Company based upon the advice of a
nationally recognized investment banking firm selected by the Board of Directors
of the Company; provided, however, that if the Company shall not have made
adequate provision to deliver value pursuant to clause (B) above within thirty
(30) days following the later of (x) the first occurrence of a Section 11 Event
and (y) the date on which the Company's right of redemption pursuant to Section
23(a) expires (the later of (x) and (y) being referred to herein as the "Section
11(a)(ii) Trigger Date"), then the Company shall be obligated to deliver, upon
the surrender for exercise of a Right and without requiring payment of the
Purchase Price, shares of Common Stock (to the extent available) and then, if
necessary, cash, which shares and/or cash have an aggregate value equal to the
Spread. If the Board of Directors of the Company shall determine in good faith
that it is likely that sufficient additional shares of Common Stock could be
authorized for issuance upon exercise in full of the Rights, the thirty (30) day
period set forth above may be extended to the extent necessary, but not more
than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that
the Company may seek stockholder approval for the authorization of such
additional shares (such thirty (30) day period, as it may be extended, the
"Substitution Period"). To the extent that the Company determines that some
action should be taken pursuant to the first and/or second sentences of this
Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e)
hereof, that such action shall apply uniformly to all outstanding Comdisco
Rights or Venture Rights, as the case may be, and (y) may suspend the
exercisability of the Rights until the expiration of the Substitution Period in
order to seek stockholder approval for such 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 in each case
with prompt notice thereof to the Rights Agent. For purposes of this Section
11(a)(iii), the value of each Adjustment Share shall be the Current Market Price
per share of the Common Stock on the Section 11(a)(ii) Trigger Date and the per
share or per unit value of any Common Stock Equivalent shall be deemed to have
the Current Market Price per share of the Common Stock on such date.
(b) In case the Company shall fix a record date for the
issuance of rights (other than the Rights), options or warrants to all holders
of Preferred Stock entitling them (for a period expiring within forty-five (45)
calendar days after such record date) to subscribe for or purchase Preferred
Stock (or shares having the same rights, privileges and preferences as the
shares of Preferred Stock ("equivalent preferred 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 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 prior to such record date by a fraction, the numerator of which
shall be the number of shares of such Preferred Stock outstanding on such record
date, plus the number of shares of such Preferred Stock which the aggregate
offering price of the total number of shares of such 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 purchase
at such Current Market Price, and the denominator of which shall be the number
of shares of such Preferred Stock outstanding on such record date, plus the
number of additional shares of such Preferred Stock and/or equivalent preferred
stock to be offered for subscription or purchase (or into which the convertible
securities so to be offered are initially convertible).In case such subscription
price may be paid by delivery of consideration part or all of which may be in a
form other than cash, the value of such consideration shall be as determined in
good faith by the Board of Directors of the Company, whose determination shall
be described in a statement filed with the Rights Agent and shall be conclusive
and binding for all purposes 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
adjustment shall be made successively whenever such a record date is fixed, and
in the event that such rights or warrants are not so issued, the Purchase Price
shall be adjusted to be the Purchase Price which would then be in effect if such
record date had not been fixed.
(c) In case the Company shall fix a record date for a
distribution to all holders of Preferred Stock (including any such distribution
made in connection with a consolidation or merger in which the Company is the
continuing corporation) of evidences of indebtedness, cash (other than a regular
quarterly cash dividend out of the earnings or retained earnings of the
Company), assets (other than a dividend payable in Preferred Stock, but
including any dividend payable in stock other than Preferred Stock) or
subscription rights or warrants (excluding those referred to in Section 11(b)
hereof), the Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be the Current Market
Price per share of 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 and shall be conclusive and binding for all purposes on the Rights Agent
and the holders of the Rights) of the portion of the cash, assets or evidences
of indebtedness so to be distributed or of such subscription rights or warrants
applicable to a share of Preferred Stock and the denominator of which shall be
such Current Market Price per share of Preferred Stock. Such adjustments shall
be made successively whenever such a record date is fixed, and in the event that
such distribution is not so made, the Purchase Price shall be adjusted to be the
Purchase Price which would have been in effect if such record date had not been
fixed.
(d) (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 immediately prior to but not including 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 in the event that the Current Market Price per share of
Common Stock is determined during a period following the announcement by the
issuer of the Common Stock of (A) any dividend or distribution on such Common
Stock, payable in shares of such Common Stock or securities convertible into
shares of such Common Stock (other than the Rights), or (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 subdivision,
combination or reclassification shall not have occurred prior to the
commencement of the requisite thirty (30) Trading Day period or ten (10) Trading
Day period, as set forth above, then, and in each such case, the "Current Market
Price" shall be properly adjusted to take into account ex-dividend trading. The
closing price for each day shall be the last sale price, regular way, or, in
case no such sale takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange or, if the shares of Common
Stock are not listed or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting system with respect
to securities listed on the principal national securities exchange on which the
shares of Common Stock are listed or admitted to trading or, if the shares of
Common Stock are not listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the average of the high
bid and low asked prices in the over-the-counter market, as reported 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 system, the average of the closing
bid and asked prices as furnished by a professional market maker making a market
in the Common Stock selected by the Board of Directors of the Company. If on any
such date no market maker is making a market in the Common Stock, the fair value
of such shares on such date as determined in good faith by the Board of
Directors of the Company shall be used. The term "Trading Day" shall mean a day
on which the principal national securities exchange on which the shares of
Common Stock are listed or admitted to trading is open for the transaction of
business or, if the shares of Common Stock are not listed or admitted to trading
on any national securities exchange, a Business Day. If the Common Stock is not
publicly held or not so listed or traded, "Current Market Price" per share shall
mean the fair value per share as determined in good faith by the Board of
Directors of the Company, whose determination shall be described in a statement
filed with the Rights Agent and shall be conclusive for all purposes.
(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 Common Stock in clause (i) of this Section
11(d) (other than the last sentence thereof). If the Current Market Price per
share of Preferred 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 "Current Market Price" per
share of Preferred Stock shall be conclusively deemed to be an amount equal to
1,000 (as such number may be appropriately adjusted for such events as stock
splits, stock dividends and recapitalizations with respect to Common Stock
occurring after the date of this Agreement) multiplied by the Current Market
Price per share of 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.
(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 subsequent to
any adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of one one-thousandths of a
share of Preferred Stock purchasable from time to time hereunder upon exercise
of the Rights, all subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its election as
provided in Section 11(i), upon each adjustment of the Purchase Price as a
result of the calculations made in Sections 11(b) and (c), each Right
outstanding immediately prior to the making of such adjustment shall thereafter
evidence the right to purchase, at the adjusted Purchase Price, that number of
one one-thousandths of a share of Preferred Stock (calculated to the nearest
one-millionth) obtained by (i) multiplying (x) the number of one one-thousandths
of a share covered by a Right immediately prior to this adjustment, by (y) the
Purchase Price in effect immediately prior to such adjustment of the Purchase
Price, and (ii) dividing the product so obtained by the Purchase Price in effect
immediately after such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of Rights, in lieu of any
adjustment in the number of one one-thousandths 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-thousandths of a share of Preferred Stock for which a Right was
exercisable immediately prior to such adjustment. Each Right held of record
prior to such adjustment of the number of Rights shall become that number of
Rights (calculated to the nearest one ten-thousandth) obtained by dividing the
Purchase Price in effect immediately prior to adjustment of the Purchase Price
by the Purchase Price in effect immediately after adjustment of the Purchase
Price. The Company shall make a public announcement of its election to adjust
the number of Rights, indicating the record date for the adjustment, and, if
known at the time, the amount of the adjustment to be made with prompt notice
thereof to the Rights Agent. This record date may be the date on which the
Purchase Price is adjusted or any day thereafter, but, if the Rights
Certificates have been issued, shall be at least ten (10) days later than the
date of the public announcement. If Rights Certificates have been issued, upon
each adjustment of the number of Rights pursuant to this Section 11(i), the
Company shall, as promptly as practicable, cause to be distributed to holders of
record of Rights Certificates on such record date Rights Certificates
evidencing, subject to Section 14 hereof, the additional Rights to which such
holders shall be entitled as a result of such adjustment, or, at the option of
the Company, shall cause to be distributed to such holders of record in
substitution and replacement for the Rights Certificates held by such holders
prior to the date of adjustment, and upon surrender thereof, if required by the
Company, new Rights Certificates evidencing all the Rights to which such holders
shall be entitled after such adjustment. Rights Certificates so to be
distributed shall be issued, executed and countersigned in the manner provided
for herein (and may bear, at the option of the Company, the adjusted Purchase
Price) and shall be registered in the names of the holders of record of Rights
Certificates on the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase
Price or the number of one one-thousandths 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-thousandths of a share and the number of one one-thousandths of a share
which were expressed in the initial Rights Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below the then stated value, if any, of the number
of one one-thousandths 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-thousandths 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 with prompt notice thereof to
the Rights Agent until the occurrence of such event the issuance to the holder
of any Right exercised after such record date the number of one one-thousandths
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-thousandths 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 prior to such adjustment; provided, however, that
the Company shall deliver to such holder a due bill or other appropriate
instrument evidencing such holders 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
notwithstanding, the Company shall be entitled to make such reductions in the
Purchase Price, in addition to those adjustments expressly required by this
Section 11, as and to the extent that in their good faith judgment the Board of
Directors of the Company shall determine to be advisable in order that any (i)
consolidation or subdivision of the 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 transaction 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) hereof), if (x) at the time of or immediately after
such consolidation, merger or sale there are any rights, warrants or other
instruments or securities outstanding or agreements in effect which would
substantially diminish or otherwise eliminate the benefits intended to be
afforded by the Rights or (y) prior to, simultaneously with or immediately after
such consolidation, merger or sale, the stockholders of the Person who
constitutes, or would constitute, the "Principal Party" for purposes of Section
13(a) hereof shall have received a distribution of Rights previously owned by
such Person or any of its Affiliates and Associates.
(o) The Company covenants and agrees that, after the
Distribution Date, it will not, except as permitted by Section 23 or Section 27
hereof, take (or permit any Subsidiary to take) any action if at the time such
action is taken it is reasonably foreseeable that such action will diminish
substantially or otherwise eliminate the benefits intended to be afforded by the
Rights.
(p) Anything in this Agreement to the contrary
notwithstanding, in the event that the Company shall at any time after the
Rights Dividend Declaration Date and prior to the Distribution Date (x) declare
or pay any dividend on any series of the outstanding Common Stock payable in
Common Stock (other than a dividend payable in shares of Ventures Stock to the
extent such dividend reduces the Number of Shares Issuable with Respect to the
Inter-Group Interest, as such term is defined in the Restated Charter) or (ii)
effect a subdivision, combination or consolidation of any series of the Common
Stock (by reclassification or otherwise than by payment of dividends in Common
Stock) into a greater or lesser number of shares of Common Stock, then in any
such case (y) the number of one one-thousandths of a Series C Preferred Stock
(in the case of an event affecting the Comdisco Stock) or a Series D Preferred
Stock (in the case of an event affecting the Ventures Stock) purchasable after
such event upon proper exercise of each Right shall be determined by multiplying
the number of one one-thousandths of a Preferred Stock so purchasable
immediately prior to such event by a fraction, the numerator of which is the
number of such shares of Common Stock outstanding immediately before such event
and the denominator of which is the number of shares such Common Stock
outstanding immediately after such event and (z) each such shares of Common
Stock outstanding immediately after such event shall have issued with respect to
it that number of Rights which each such share of Common Stock outstanding
immediately prior to such event had issued with respect to it.
(q) The failure of the Board of Directors to declare a Person
to be an Adverse Person following such Person becoming the Beneficial Owner of
shares of Common Stock representing 10% or more of the total Voting Rights of
all outstanding shares of Common Stock shall not imply that such Person is not
an Adverse Person or limit the Board of Directors' right at any time in the
future to declare such Person to be an Adverse Person.
Section 12. Certificate of Adjusted Purchase Price or Number of Shares.
Whenever an adjustment is made as provided in Section 11 and Section 13 hereof,
the Company shall (a) promptly prepare a certificate setting forth such
adjustment and a brief statement of the facts and computation 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 prior to the Distribution Date, to each holder of a certificate representing
shares of Common Stock) in accordance with Section 26 hereof. The Rights Agent
shall be fully protected in relying on any such certificate and on any
adjustment therein contained and shall have no duty with respect to and shall
not be deemed to have knowledge of any such adjustment unless and until it shall
have received such certificate.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power.
(a) In the event that, following the Stock Acquisition Date,
directly or indirectly, (x) the Company shall consolidate with, or merge with
and into, any other Person (other than a Subsidiary of the Company in a
transaction which complies with Section 11(o) hereof), and the Company shall not
be the continuing or surviving corporation of such consolidation or merger, (y)
any Person (other than a Subsidiary of the Company in a transaction which
complies with Section 11(o) hereof) shall 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 otherwise transfer),
in one transaction or a series of related transactions, assets or earning power
aggregating 50% or more of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any Person or Persons (other than the Company
or any Subsidiary of the Company in one or more transactions each of which
complies with Section 11(o) hereof), then, and in each such case (except as may
be contemplated by Section 13(d) hereof), proper provision shall be made so
that: (i) each holder of a Right, except as provided in Section 7(e) hereof,
shall thereafter have the right to receive, upon the exercise thereof at the
then current Series C Purchase Price (in the case of a Comdisco Right) or the
then current Series D Purchase Price (in the case of a Ventures Right), in
accordance with the terms of this Agreement, such number of validly authorized
and issued, fully paid, non-assessable and freely tradable 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-thousandths of a share of Preferred
Stock for which a Right was exercisable immediately prior to the first
occurrence of a Section 13 Event (or, if a Section 11 Event has occurred prior
to the first occurrence of a Section 13 Event, multiplying the number of such
one one-thousandths of a share for which a Right was exercisable immediately
prior to the first occurrence of a Section 11 Event by the Purchase Price in
effect immediately prior to 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 per share of the Common Stock
of such Principal Party on the date of consummation of such Section 13 Event;
(ii) such Principal Party shall thereafter be liable for, and shall assume, by
virtue of such Section 13 Event, all the obligations and duties of the Company
pursuant to this Agreement; (iii) the term "Company" shall thereafter be deemed
to refer to such Principal Party, it being specifically intended that the
provisions of Section 11 hereof shall apply only to such Principal Party
following the first occurrence of a Section 13 Event; (iv) such Principal Party
shall take such steps (including, but not limited to, the reservation of a
sufficient number of shares of its Common Stock) in connection with the
consummation of any such transaction as may be necessary to assure that the
provisions hereof shall thereafter be applicable, as nearly as reasonably may
be, in relation to its shares of Common Stock thereafter deliverable upon the
exercise of the Rights; and (v) the provisions of Section 11(a)(ii) hereof shall
be of no effect following the first occurrence of any Section 13 Event.
(b) "Principal Party" shall mean:
(i) in the case of any transaction described in clause (x) or
(y) of the first sentence of Section 13(a), the Person that is the issuer of any
securities for or into which shares of Common Stock of the Company are converted
in such merger or consolidation, and if no securities are so issued, the Person
that is the other party to such merger or consolidation; and
(ii) in the case of any transaction described in clause (z) of
the first sentence of Section 13(a), the Person that is the party receiving the
greatest portion of the assets or earning power transferred pursuant to such
transaction or transactions; provided, however, that in any such case, (1) if
the Common Stock of such Person is not at such time and has not been
continuously over the preceding twelve (12) month period registered under
Section 12 of the Exchange Act, and such Person is a direct or indirect
Subsidiary of another Person the Common Stock of which is and has been so
registered, "Principal Party" shall refer to such other Person; and (2) in case
such Person is a Subsidiary, directly or indirectly, of more than one Person,
the Common 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 Section 13 Event
unless the Principal Party shall have a sufficient number of authorized shares
of its Common Stock which have not been issued or reserved for issuance to
permit the exercise in full of the Rights in accordance with this Section 13 and
unless prior thereto the Company and such Principal Party shall have executed
and delivered to the Rights Agent a supplemental agreement providing for the
terms set forth in paragraphs (a) and (b) of this Section 13 and further
providing that, as soon as practicable after the date of any such Section 13
Event, the Principal Party will
(i) prepare and file a registration statement under the
Securities Act, with respect to the Rights and the securities purchasable upon
exercise of the Rights on an appropriate form, and will use its best efforts to
cause such registration statement to (A) become effective as soon as practicable
after such filing and (B) remain effective (with a prospectus at all times
meeting the requirements of the Securities Act) until the Expiration Date;
(ii) use its best efforts to qualify or register the Rights
and the securities purchasable upon exercise of the Rights under blue sky laws
of such jurisdiction, as may be necessary or appropriate; and
(iii) will deliver to holders of the Rights historical
financial statements for the Principal Party and each of its Affiliates which
comply in all respects with the requirements for registration on Form 10 under
the Exchange Act.
The provisions of this Section 13 shall similarly apply to successive mergers or
consolidations or sales or other transfers. In the event that a Section 13 Event
shall occur at any time after the first occurrence of a Section 11 Event, the
Rights which have not theretofore been exercised shall thereafter become
exercisable in the manner described in Section 13(a).
(d) Notwithstanding anything in this Agreement to the
contrary, Section 13 shall not be applicable to a transaction described in
subparagraphs (x) and (y) of Section 13(a) if (i) such transaction is
consummated with a Person or Persons (or a wholly-owned Subsidiary of any such
Person or Persons) who acquired shares of Common Stock pursuant to a Qualifying
Offer, (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 Qualifying 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 Qualifying Offer. Upon consummation of any
such transaction contemplated by this Section 13(d), all Rights hereunder shall
expire.
Section 14. Fractional Rights and Fractional Shares.
----------------------------------------------------
(a) The Company shall not be required to issue fractions of
Rights, except prior to the Distribution Date as provided in Section 11(p)
hereof, or to distribute Rights Certificates which evidence fractional Rights.
In lieu of such fractional Rights, there shall be paid to the registered holders
of the Rights Certificates with regard to which such fractional Rights would
otherwise be issuable, an amount in cash equal to the same fraction of the
current market value of a whole Right. For purposes of this Section 14(a), the
current market value of a whole Right shall be the closing price of the Rights
for the Trading Day immediately prior to the date on which such fractional
Rights would have been otherwise issuable. The closing price of the Rights for
any day shall be the last sale price, regular way, or, in case no such sale
takes place on such day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on the New York Stock Exchange or, if the Rights are not listed or
admitted to trading on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which the Rights are listed or
admitted to trading, or if the Rights are not listed or admitted to trading on
any national securities exchange, the last quoted price or, if not so quoted,
the average of the high bid and low asked prices in the over-the-counter market,
as reported by NASDAQ or such other system then in use or, if on any such date
the Rights are not quoted by any such system, 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 integral multiples of
one one-thousandth 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-thousandth of a
share of Preferred Stock).In lieu of fractional shares of Preferred Stock that
are not integral multiples of one one-thousandth 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-thousandth of a share of
Preferred Stock. For purposes of this Section 14(b), the current market value of
one one-thousandth of a share of Preferred Stock shall be one one-thousandth of
the closing price of a share of Preferred Stock (as determined pursuant to
Section 11(d)(ii) hereof) for the Trading Day immediately prior to 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 certificates which evidence fractional
shares of Common Stock. In lieu of fractional shares of Common Stock, the
Company may pay to the registered holders of Rights Certificates at the time
such Rights are exercised as herein provided an amount in cash equal to the same
fraction of the current market value of one (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 per share of Common Stock (determined pursuant
to Section 11(d)(i) hereof) on the Trading Day immediately prior to 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, except the rights of action given to the Rights Agent under this
Agreement, are vested in the respective registered holders of the Rights
Certificates (and, prior to the Distribution Date, the registered holders of the
Common Stock); and any registered holder of any Rights Certificate (or, prior to
the Distribution Date, of the Common Stock), without the consent of the Rights
Agent or of the holder of any other Rights Certificate (or, prior to the
Distribution Date, of the Common Stock), may, in his own behalf and for his own
benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise act in respect of, his right to
exercise the Rights evidenced by such Rights Certificate in the manner provided
in such Rights Certificate and in this Agreement. Without limiting the foregoing
or any remedies available to the holders of Rights, it is specifically
acknowledged that the holders of Rights would not have an adequate remedy at law
for any breach of this Agreement and shall be entitled to specific performance
of the obligations hereunder and injunctive relief against actual or threatened
violations of the obligations hereunder of any Person subject to this Agreement.
Section 16. Agreement of Rights Holders. Every holder of a Right by
accepting the same consents and agrees with the Company and the Rights Agent and
with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of such
Common Stock;
(b) after the Distribution Date, the Rights Certificates are
transferable only on the registry books of the Rights Agent and only if
surrendered at the 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, prior to the Distribution Date, the associated Common
Stock certificate) is registered as the absolute owner thereof and of the Rights
evidenced thereby (notwithstanding any notations of ownership or writing on the
Rights Certificates or the associated Common Stock certificate made by anyone
other than the Company or the Rights Agent) for all purposes whatsoever, and
neither the Company nor the Rights Agent shall be required to be affected by any
notice to the contrary; and
(d) notwithstanding anything in this Agreement to the
contrary, neither the Company nor the Rights Agent shall have any liability to
any holder of a Right or other Person as a result of its inability to perform
any of its obligations under this Agreement by reason of any preliminary or
permanent injunction or other order, decree or ruling issued by a court of
competent jurisdiction or by a governmental, regulatory or administrative agency
or commission, or any statute, rule, regulation or executive order promulgated
or enacted by any governmental authority, prohibiting or otherwise restraining
performance of such obligation; provided, however, the Company must use its best
efforts to have any such order, decree or ruling lifted or otherwise overturned
as soon as possible.
Section 17. Rights Certificate Holder Not Deemed a Stockholder. 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-thousandths of a share of Preferred Stock or any other securities of the
Company which may at any time be issuable on the exercise of the Rights
represented thereby, nor shall anything contained herein or in any Rights
Certificate be construed to confer upon the holder of any Rights Certificate, as
such, any of the rights of a 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 subscription rights,
or otherwise, until the Right or Rights evidenced by such Rights Certificate
shall have been exercised in accordance with the provisions hereof.
Section 18. Concerning the Rights Agent.
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(a) The Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from time to time,
on demand of the Rights Agent, its reasonable expenses and counsel fees and
disbursements and other disbursements incurred in the administration,
preparation, delivery, amendment and execution of this Agreement and the
exercise and performance of its duties hereunder. The Company also agrees to
indemnify the Rights Agent for, and to hold it harmless against any loss,
liability, damage, judgment, fine, penalty, claim, demand, settlement, or
expense incurred without negligence, bad faith or willful misconduct as finally
determined by a court of competent jurisdiction on the part of the Rights Agent,
for any action taken, suffered, or omitted by the Rights Agent in connection
with the acceptance and administration of this Agreement, including without
limitations the costs and expenses of defending against any claim of liability
in the premises. The indemnity provided herein shall survive the removal or
resignation of the Rights Agent or the termination of this Agreement and the
termination and the expiration of the Rights. The costs and expenses incurred in
enforcing this right of indemnification shall be paid by the Company, unless a
court of competent jurisdiction determines that the Rights Agent is not entitled
to the indemnity provided herein.
(b) The Rights Agent shall be authorized and protected and
shall incur no liability for or in respect of any action taken, suffered or
omitted by it in connection with its administration of this Agreement in
reliance upon any Rights Certificate or certificate for Common Stock or for
other securities of the Company, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement, or other paper or document believed by it to be genuine
and to be signed, executed and, where necessary, verified or acknowledged, by
the proper Person or Persons, or otherwise upon the advice of counsel as set
forth in Section 20 hereof.
Section 19. Merger or Consolidation or Change of Name of Rights Agent.
----------------------------------------------------------------------
(a) Any Person into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any Person
resulting from any merger or consolidation to which the Rights Agent or any
successor Rights Agent shall be a party, or any Person succeeding to the
shareholder services business of the Rights Agent or any successor Rights Agent,
shall be the successor to the Rights Agent under this Agreement without the
execution or filing of any paper or any further act on the part of any of the
parties hereto; provided, however, that such Person would be eligible for
appointment as a successor Rights Agent under the provisions of Section 21
hereof. In case at the time such successor Rights Agent shall succeed to the
agency created by this Agreement, any of the Rights Certificates shall have been
countersigned but not delivered, any such successor Rights Agent may adopt the
countersignature of a predecessor Rights Agent and deliver such Rights
Certificates so countersigned; and in case at that time any of the Rights
Certificates shall not have been countersigned, any successor Rights Agent may
countersign such Rights Certificates either in the name of the predecessor or in
the name of the successor Rights Agent; and in all such cases such Rights
Certificates shall have the full force provided in the Rights Certificates and
in this Agreement.
(b) In case at any time the name of the Rights Agent shall be
changed and at such time any of the Rights Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the countersignature
under its prior name and deliver Rights Certificates so countersigned; and in
case at that time any of the Rights Certificates shall not have been
countersigned, the Rights Agent may countersign such Rights Certificates either
in its prior name or in its changed name; and in all such cases such Rights
Certificates shall have the full force provided in the Rights Certificates and
in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent undertakes only
the duties and obligations expressly 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 advice or opinion of such counsel
shall be full and complete authorization and protection to the Rights Agent as
to any action taken, suffered or omitted by it in good faith and in accordance
with such advice or opinion.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent shall deem it necessary or desirable that any fact or
matter (including, without limitation, the identity of any Acquiring Person or
Adverse Person and the determination of "Current Market Price") be proved or
established by the Company prior to taking, suffering or omitting any action
hereunder, such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively proved and
established by a certificate signed by the Chairman of the Board, the President,
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 and protection to the Rights Agent and
the Rights Agent shall incur no liability for or in respect of any action taken,
suffered or omitted 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 as determined by a court of
competent jurisdiction. Anything to the contrary notwithstanding, in no event
shall the Rights Agent be liable for special, punitive, indirect, consequential
or incidental loss or damage of any kind whatsoever (including but not limited
to lost profits), even if the Rights Agent has been advised of the likelihood of
such loss or damage.
(d) The Rights Agent shall not be liable for or by reason of
any of the statements of fact or recitals contained in this 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 liability or
responsibility in respect of the validity of this Agreement or the execution and
delivery hereof (except the due execution hereof by the Rights Agent) or in
respect of the validity or execution of any Rights Certificate (except its
countersignature thereof); nor shall it be liable or 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 liable or responsible for any adjustment
required under the provisions of Section 3, Section 11, Section 13, Section 23
or Section 24 hereof or responsible for the manner, method or amount of any such
adjustment or the ascertaining of the existence of facts that would require any
such adjustment (except with respect to the exercise of Rights evidenced by
Rights Certificates after actual notice of any such adjustment); nor shall it by
any act hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any shares of Common Stock or 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, the President, any Vice President, the Secretary, any
Assistant Secretary, the Treasurer or any Assistant Treasurer of the Company or
any designee of any of the foregoing, and to apply to such officers for advice
or instructions in connection with its duties, and it shall not be liable for
any action taken, suffered or omitted to be taken by it in good faith in
accordance with instructions of any such officer or for any delay in acting
while waiting for those instructions.
(h) The Rights Agent and any stockholder, director, Affiliate,
officer or employee of the Rights Agent may buy, sell or deal in any of the
Rights or other securities of the Company or become pecuniarily interested in
any transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were not
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 Person.
(i) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder either itself
or by or through its attorneys or agents, and the Rights Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of any
such attorneys or agents or for any loss to the Company resulting from any such
act, default, neglect or misconduct; absent negligence, bad faith or willful
misconduct, as finally determined by a court of competent jurisdiction in the
selection and continued employment thereof.
(j) No provision of this Agreement shall require the Rights
Agent to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder or in the exercise of its
rights if there shall be reasonable grounds for believing that repayment of such
funds or adequate indemnification against such risk or liability is not
reasonably assured to it.
(k) If, with respect to any Right Certificate surrendered to
the Rights Agent for exercise or transfer, the certificate attached to the form
of assignment or the form of election to purchase, as the case may be, has
either not been completed or indicates an affirmative response to clause 1
and/or 2 thereof, the Rights Agent shall not take any further action with
respect to such requested exercise or transfer without first consulting with the
Company.
Section 21. Change of Rights Agent. The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this Agreement
upon thirty (30) days' notice in writing mailed to the Company, and to each
transfer agent of the Common Stock and Preferred Stock, by registered or
certified mail, and to the holders of the Rights Certificates by first-class
mail. The Company may remove the Rights Agent or any successor Rights Agent upon
thirty (30) days' notice in writing, mailed to the Rights Agent or successor
Rights Agent, as the case may be, and to each transfer agent of the Common Stock
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 thirty (30) days after giving notice of such
removal or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or by any registered
holder of a Rights Certificate (who shall, with such notice, submit his Rights
Certificate for inspection by the Company), then any registered holder of a
Rights Certificate may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent. Any successor Rights Agent, whether appointed
by the Company or by such a court, shall be (i) a Person organized and doing
business under the laws of the United States or the State of New York (or of any
other state of the United States) so long as such Person is in good standing, 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 (ii) is an Affiliate of the Person described
in (i) above. After appointment, the successor Rights Agent shall be vested with
the same powers, rights, duties and responsibilities as if it had been
originally named as Rights Agent without further act or deed; but the
predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment, the Company shall file notice
thereof in writing with the predecessor Rights Agent and each transfer agent of
the Common Stock and the Preferred Stock, and mail a notice thereof in writing
to the registered holders of the Rights Certificates. Failure to give any notice
provided for in this Section 21, however, or any defect therein, shall not
affect the legality or validity of the Rights, Rights Agreement or the
resignation or removal of the Rights Agent or the appointment of the successor
Rights Agent, as the case may be.
Section 22. Issuance of New Rights Certificates. Notwithstanding any of
the provisions of this Agreement or of the Rights to the contrary, the Company
may, at its option, issue new Rights Certificates evidencing Rights in such form
as may be approved by its Board of Directors to reflect any adjustment or change
in the Purchase Price and the number or kind or class of shares or other
securities or property purchasable under the Rights Certificates made in
accordance with the provisions of this Agreement. In addition, in connection
with the issuance or sale of shares of Common Stock following the Distribution
Date and prior to the redemption or expiration of the Rights, the Company (a)
shall, with respect to shares of Common Stock so issued or sold pursuant to the
exercise of stock options or under any employee plan or arrangement, granted or
awarded as of the Distribution Date, or upon the exercise, conversion or
exchange of securities hereinafter issued by the Company, and (b) may, in any
other case, if deemed necessary or appropriate by the Board of Directors of the
Company, issue Rights Certificates representing the appropriate number of Rights
in connection with such issuance or sale; provided, however, that (i) no such
Rights Certificate shall be issued if, and to the extent that, the Company shall
be advised by counsel that such issuance would create a significant risk of
material adverse tax consequences to the Company or the Person to whom such
Rights Certificate would be issued, and (ii) no such Rights Certificate shall be
issued if, and to the extent that, appropriate adjustment shall otherwise have
been made in lieu of the issuance thereof.
Section 23. Redemption and Termination.
---------------------------------------
(a) The Board of Directors of the Company may, at its option,
at any time prior to the earlier of (i) the Close of Business on the fifteenth
day following the Stock Acquisition Date (or, if the Stock Acquisition Date
shall have occurred prior to the Record Date, the Close of Business on the
fifteenth 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 $0.01 per Right, as such amount may be appropriately adjusted to
reflect any stock split, stock dividend or similar transaction occurring after
the date hereof (such redemption price being hereinafter referred to as the
"Redemption Price"). Notwithstanding the foregoing, the Board of Directors may
not redeem any Rights following a determination pursuant to Section 11(a)(ii)(B)
that any Person is an Adverse Person. Notwithstanding anything contained in this
Agreement to the contrary, the Rights shall not be exercisable after the first
occurrence of a Section 11 Event until such time as the Company's right of
redemption set forth in the first sentence of this Section 23(a) has expired.
The Company may, at its option, pay the Redemption Price in cash, shares of
Common Stock (based on the Current Market Price of the Common Stock at the time
of redemption) or any other form of consideration deemed appropriate by the
Board of Directors.
(b) Immediately upon the action of the Board of Directors of
the Company ordering the redemption of the Rights, evidence of which shall have
been filed with the Rights Agent and without any further action and without any
notice, the right to exercise the Rights will terminate and the only right
thereafter of the holders of Rights shall be to receive the Redemption Price for
each Right so held. Promptly after the action of the Board of Directors ordering
the redemption of the Rights, the Company shall give notice of such redemption
to the Rights Agent and the holders of the then outstanding Rights by mailing
such notice to all such holders at each holder's last address as it appears upon
the registry books of the Rights Agent or, prior to the Distribution Date, on
the registry books of the Transfer Agent for the Common Stock. Any notice which
is mailed in the manner herein provided shall be deemed given, whether or not
the holder receives the notice. Each such notice of redemption will state the
method by which the payment of the Redemption Price will be made.
Section 24. Exchange.
---------------------
(a) The Board of Directors of the Company may, at its option,
at any time after any Person becomes an Acquiring Person or is determined to be
an Adverse Person pursuant to Section 11(a)(ii)(B), exchange all or part of the
then outstanding and exercisable Rights (which shall not include Rights that
have become null and void pursuant to the provisions of Section 7(e) hereof) for
shares of Common Stock at an exchange ratio of one share of Comdisco Stock per
Comdisco Right and one share of Ventures Stock per Ventures Right, appropriately
adjusted to reflect any stock split, stock dividend or similar transaction
occurring after the date hereof (each such exchange ratio being hereinafter
referred to as an "Exchange Ratio"). Notwithstanding the foregoing, the Board of
Directors shall not be empowered to effect such exchange at any time after any
Person (other than the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or any such Subsidiary, or any entity holding Common
Stock for or pursuant to the terms of any such plan), together with all
Affiliates and Associates of such Person, becomes the Beneficial Owner of Common
Stock representing fifty percent (50%) or more of the total Voting Rights of all
Common Stock then outstanding.
(b) Immediately upon the action of the Board of Directors of
the Company ordering the exchange of any Rights pursuant to subsection (a) of
this Section 24 and without any further action and without any notice, the right
to exercise such Rights shall terminate and the only right thereafter of a
holder of such Rights shall be to receive that number of shares of Comdisco
Stock or Ventures Stock, as the case may be, equal to the number of such Rights
held by such holder multiplied by the applicable Exchange Ratio. The Company
shall promptly give public notice of any such exchange; provided, however, that
the failure to give, or any defect in, such notice shall not affect the validity
of such exchange. The Company promptly shall mail a notice of any such exchange
to the Rights Agent and 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 Common Stock for Rights will be effected and, in
the event of any partial exchange, the number of Rights which will be exchanged.
Any partial exchange shall be effected pro rata based on the number of Rights
(other than Rights which have become null and void pursuant to the provisions of
Section 7(e) hereof) held by each holder of Rights.
(c) In any exchange pursuant to this Section 24, the Company,
at its option, may substitute (i) Series C Preferred Stock (or equivalent
preferred shares, as such term is defined in Section 11(b) hereof) for shares of
Comdisco Stock exchangeable for Comdisco Rights, at the initial rate of one
one-thousandth of a Series C Preferred Stock (or equivalent preferred share) for
each share of Comdisco Stock and (ii) Series D Preferred Stock (or equivalent
preferred shares, as such term is defined in Section 11(b) hereof) for shares of
Ventures Stock exchangeable for Ventures Rights, at the preferred share) for
each share of Ventures Stock, such rates, in the case of clause (i) or (ii) of
this Section 24(c), to be appropriately adjusted to reflect adjustments in the
voting rights of the Preferred Stock pursuant to the terms thereof, so that the
fraction of a Preferred Stock delivered in lieu of Common Stock shall have the
same voting rights as such share of Common Stock.
(d) In the event that there shall not be sufficient shares of
Common Stock or Preferred Stock issued but not outstanding or authorized but
unissued to permit any exchange of Rights as contemplated in accordance with
this Section 24, the Company shall take all such action as may be necessary to
authorize additional shares of Common Stock or Preferred Stock for issuance upon
exchange of the Rights.
(e) The Company shall not be required to issue fractions of
shares of Common Stock or to distribute certificates which evidence fractional
shares of Common Stock. In lieu of such fractional shares of Common Stock, there
shall be paid to the registered holders of the Right Certificates with regard to
which such fractional share of Common Stock would otherwise be issuable, an
amount in cash equal to the same fraction of the Current Market Value of a whole
share of Common Stock. For the purposes of this subsection (e), the "Current
Market Value" of a whole share of Common Stock shall be the closing price of a
share of Common Stock (as determined pursuant to the second sentence of Section
11(d)(i) hereof) for the Trading Day immediately prior to the date of exchange
pursuant to this Section 24.
Section 25. Notice of Certain Events.
-------------------------------------
(a) In case the Company shall propose, at any time after the
Distribution Date, (i) to pay any dividend payable in stock of any class to the
holders of Preferred Stock or to make any other distribution to the holders of
Preferred Stock (other than a regular quarterly cash dividend out of earnings or
retained earnings of the Company), or (ii) to offer to the holders of Preferred
Stock rights or warrants to subscribe for or to purchase any additional shares
of Preferred Stock or shares of stock of any class or any other securities,
rights or options, or (iii) to effect any reclassification of its Preferred
Stock (other than a reclassification involving only the subdivision of
outstanding shares of Preferred 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 transaction or a series of related transactions,
of more than 50% of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person or Persons (other than the
Company and/or any of its Subsidiaries in one or more transactions each of which
complies with Section 11(o) hereof), or (v) to effect the liquidation,
dissolution or winding up of the Company, then, in each such case, the Company
shall give to each holder of a Rights Certificate and to the Rights Agent, to
the extent feasible and in accordance with Section 26 hereof, a notice of such
proposed action, which shall specify the record date for the purposes of such
stock dividend, distribution of rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution, or winding up is to take place and the date of participation
therein by the holders of the shares of 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 prior to 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
prior to 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 Event shall occur, then, in any
such case, (i) the Company shall as soon as practicable thereafter give to each
holder of a Rights Certificate and to the Rights Agent, 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 other securities.
Section 26. Notices. Notices or demands authorized by this Agreement to
be given or made by the Rights Agent or by the holder of any Rights Certificate
to or on the Company shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is filed in writing with
the Rights Agent) as follows:
Comdisco, Inc.
6111 North River Road
Rosemont, Illinois 60018
Attention: Secretary
Subject to the provisions of Section 21, any notice or demand authorized by this
Agreement to be given or made by the Company or by the holder of any Rights
Certificate to or on the Rights Agent shall be sufficiently given or made if
sent by first-class mail, postage prepaid, addressed (until another address is
filed in writing with the Company) as follows:
ChaseMellon Shareholder Services, L.L.C.
44 Wall Street, 6th Floor
New York, New York 10005
Attention: Don Messmer
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Rights Certificate (or, if
prior to the Distribution Date, to the holder of certificates representing
shares of Common Stock) shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed to such holder at the address of
such holder as shown on the registry books of the Company.
Section 27. Supplements and Amendments. Prior to the Distribution Date
and subject to the penultimate sentence of this Section 27, the Company and the
Rights Agent, shall supplement or amend any provision of this Agreement without
the approval of any holders of certificates representing shares of Common Stock
and associated Rights. From and after the Distribution Date and subject to the
penultimate sentence of this Section 27, the Company and the Rights Agent may,
if the Company so directs, supplement or amend this Agreement without the
approval of any holders of Rights Certificates in order to: (i) cure any
ambiguity, (ii) correct or supplement any provision contained herein which may
be defective or inconsistent with any other provisions herein, (iii) shorten or
lengthen any time period hereunder, or (iv) change or supplement the provisions
hereunder in any manner which the Company may deem necessary or desirable and
which shall not adversely affect the interests of the holders of Rights
Certificates (other than an Acquiring Person, Adverse Person or an Affiliate or
Associate of an Acquiring Person or Adverse Person); provided, however, that
this Agreement may not be supplemented or amended to lengthen, pursuant to
clause (iii) of this sentence, (A) a time period relating to when the Rights may
be redeemed at such time as the Rights are not then redeemable, or (B) any other
time period unless such lengthening is for the purpose of protecting, enhancing
or clarifying the rights of, and/or the benefits to, the holders of Rights
(other than an Acquiring Person or Adverse Person and its Associates and
Affiliates).Upon the delivery of a certificate from an officer of the Company
which states that the proposed supplement or amendment is in compliance with the
terms of this Section 27, and such supplement or amendment does not change or
increase the Rights Agent's duties, liabilities or obligations, the Rights Agent
shall execute such supplement or amendment. Prior to the Distribution Date, the
interests of the holders of Rights shall be deemed coincident with the interests
of the holders of Common Stock.
Section 28. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Rights Agent
shall bind and inure to the benefit of their respective successors and
assigns hereunder.
Section 29. Determinations and Actions by the Board of Directors, etc.
For all purposes of this Agreement, any calculation of the number of shares of
Common Stock or any other class of capital stock outstanding at any particular
time, including for purposes of determining the particular percentage of such
outstanding shares of Common Stock of which any Person is the Beneficial Owner,
shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the
General Rules and Regulations under the Exchange Act. The Board of Directors of
the Company shall have the exclusive power and authority to administer this
Agreement and to exercise all rights and powers specifically granted to the
Board or to the Company, or as may be necessary or advisable in the
administration of this Agreement, including, without limitation, the right and
power to (i) interpret the provisions of this Agreement, and (ii) make all
determinations deemed necessary or advisable for the administration of this
Agreement (including a determination to redeem or not redeem the Rights or to
amend the Agreement).All such actions, calculations, interpretations and
determinations (including, for purposes of clause (y) below, all omissions with
respect to the foregoing) which are done or made by the Board in good faith,
shall (x) be final, conclusive and binding on the Company, the Rights Agent, the
holders of the Rights and all other parties, and (y) not subject the Board to
any liability to the holders of the Rights.
Section 30. Benefits of This Agreement. Nothing in this Agreement shall
be construed to give to any Person other than the Company, the Rights Agent and
the registered holders of the Rights Certificates (and, prior to the
Distribution Date, registered holders of the Common Stock) any legal or
equitable right, remedy or claim under this Agreement; but this Agreement shall
be for the sole and exclusive benefit of the Company, the Rights Agent and the
registered holders of the Rights Certificates (and, prior to the Distribution
Date, registered holders of the Common Stock).
Section 31. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated;
provided, however, that notwithstanding anything in this Agreement to the
contrary, if any such term, provision, covenant or restriction is held by such
court or authority to be invalid, void or unenforceable and the Board of
Directors of the Company determines in its good faith judgment that severing the
invalid language from this Agreement would adversely affect the purpose or
effect of this Agreement, the right of redemption set forth in Section 23 hereof
shall be reinstated and shall not expire until the Close of Business on the
tenth day following the date of such determination by the Board of Directors.
Without limiting the foregoing, if any provision requiring a majority of the
members of the Board of Directors who are not officers of the Company and who
are not representatives, nominees, Affiliates or Associates of an Acquiring
Person to act is held by any court of competent jurisdiction or other authority
to be invalid, void or unenforceable, such determination shall be made by the
Board of Directors of the Company in accordance with applicable law and the
Company's Certificate of Incorporation and Bylaws.
Section 32. Governing Law. This Agreement, each Right and each Rights
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of Delaware and for all purposes shall be governed by and
construed in accordance with the laws of such state applicable to contracts made
and to be performed entirely within such state.
Section 33. Counterparts. This Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.
Section 34. Descriptive Headings. Descriptive headings of the several
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Rights
Agreement to be duly executed and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
Attest: COMDISCO, INC.
By: /s/ Camille Cribaro-Mello By: Philip A. Hewes
Name: Camille Cribaro-Mello Name: Philip A. Hewes
Title: Assistant Corporate Counsel Title:Senior Vice President
and Secretary
Attest: ChaseMellon Shareholder
Services, L.L.C., as Rights Agent
By: /s/ John W. Cower, Jr. By: /s/ Donald P. Messmer
Name: John W. Cower, Jr. Name: Donald P. Messmer
Title: Rel. Mgr Title: Authorized Signatory
<PAGE>
1042324 v5
Execution Copy: May 4, 2000
A-31
EXHIBIT A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF COMDISCO, INC.
CONTAINING THE DESIGNATIONS, PREFERENCES
AND RIGHTS OF SERIES C JUNIOR
PARTICIPATING PREFERRED STOCK
AND OF SERIES D JUNIOR PARTICIPATING
PREFERRED STOCK AS FILED WITH THE
SECRETARY OF STATE OF THE
STATE OF DELAWARE ON
MAY 4,2000
<PAGE>
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
COMDISCO, INC.
Comdisco, Inc. (the "Corporation "), a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware ( "DGCL
"), certifies:
FIRST. That the name under which the Corporation was originally incorporated was
Comdisco, Inc. and the date of filing of its original certificate of
incorporation was June 28, 1971.
SECOND. That, pursuant to Sections 242 and 245 of the DGCL, the Corporation's
Board of Directors and shareholders duly adopted this Amended and Restated
Certificate of Incorporation.
THIRD. The text of the Corporation's amended and restated certificate of
incorporation is hereby further amended and restated to read in full as follows:
1. The name of the Corporation is COMDISCO, INC.
2. The address of its registered office in the State of Delaware is No.
1209 Orange Street, in the City of Wilmington, County of New Castle. The
name of its registered agent at such address is The Corporation Trust
Company.
3. The nature of the business or purposes to be conducted or promoted is:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
To manufacture, purchase or otherwise acquire, invest in, own,
mortgage, pledge, sell, assign and transfer or otherwise dispose of,
trade, deal in and deal with goods, wares and merchandise and personal
property of every class and description.
To acquire, and pay for in cash, stock or bonds of this corporation or
otherwise, the good will, rights, assets and property, and to
undertake or assume the whole or any part of the obligations or
liabilities of any person, firm, association or corporation.
To acquire, hold, use, sell, assign, lease, grant licenses in respect
of, mortgage or otherwise dispose of letters patent of the United
States or any foreign country, patent rights, licenses and privileges,
inventions, improvements and processes, copyrights, trademarks and
trade names, relating to or useful in connection with any business of
this corporation.
To acquire by purchase, subscription or otherwise, and to receive,
hold, own, guarantee, sell, assign, exchange, transfer, mortgage,
pledge or otherwise dispose of or deal in and with any of the shares
of the capital stock, or any voting trust certificates in respect of
the shares of capital stock, scrip, warrants, rights, bonds,
debentures, notes, trust receipts, and other securities, obligations,
choses in action and evidences of indebtedness or interest issued or
created by any corporations, joint stock companies, syndicates,
associations, firms, trusts or persons, public or private, or by the
government of the United States of America, or by any foreign
government, or by any state, territory, province, municipality or
other political subdivision or by any governmental agency, and as
owner thereof to possess and exercise all the rights, powers and
privileges of ownership, including the right to execute consents and
vote thereon, or to do any and all acts and things necessary or
advisable for the preservation, protection, improvement and
enhancement in value thereof.
To borrow or raise moneys for any of the purposes of the corporation
and, from time to time without limit as to amount, to draw, make,
accept, endorse, execute and issue promissory notes, drafts, bills of
exchange, warrants, bonds, debentures and other negotiable or
non-negotiable instruments and evidences of indebtedness, and to
secure the payment of any thereof and of the interest thereon by
mortgage upon or pledge, conveyance or assignment in trust of the
whole or any part of the property of the corporation, whether at the
time owned or thereafter acquired, and to sell, pledge or otherwise
dispose of such bonds or other obligations of the corporation for its
corporate purposes.
To purchase, receive, take by grant, gift, devise, bequest or
otherwise, lease, or otherwise acquire, own, hold, improve, employ,
use and otherwise deal in and with real or personal property, or any
interest therein, wherever situated, and to sell, convey, lease,
exchange, transfer or otherwise dispose of, or mortgage or pledge, all
or any of the corporation's property, assets, or any interest therein,
wherever situated.
In general, to possess and exercise all the powers and privileges
granted by the General Corporation Law of Delaware or by any other law
of Delaware or by this Amended and Restated Certificate of
Incorporation together with any powers incidental thereto, so far as
such powers and privileges are necessary or convenient to the conduct,
promotion or attainment of the business or purposes of the
corporation.
The business and purposes specified in the foregoing clauses shall,
except where otherwise expressed, be in nowise limited or restricted
by reference to, or inference from, the terms of any other clause in
this Amended and Restated Certificate of Incorporation, but the
business and purposes identified in each of the foregoing clauses of
this article shall be regarded as independent business and purposes.
4. Capital Stock. The total number of shares of all classes of stock which
the Corporation shall have authority to issue is 1,900,000,000
consisting of (i) 1,800,000,000 shares of Common Stock, $0.10 par value
per share ("Common Stock"), and (ii) 100,000,000 shares of Preferred
Stock, $0.10 par value per share ("Preferred Stock").
A. Common Stock.
1. Issuance of Common Stock in Series; Designation;
Reclassification.
Subject to the provisions of this Article 4(A) and
provisions of law, the Corporation shall have the authority
to issue shares of Common Stock in multiple series. One
series of Common Stock shall be designated as Comdisco Stock
("Comdisco Stock"). The second series of Common Stock shall
be designated as Comdisco Ventures Stock ("Ventures Stock").
When the filing of this Amended and Restated Certificate of
Incorporation becomes effective, each share of Common Stock
outstanding immediately prior thereto shall automatically be
reclassified as one share of Comdisco Stock (and outstanding
certificates that had theretofore represented shares of
Common Stock shall thereupon represent an equal number of
shares of Comdisco Stock despite the absence of any
indication thereon to that effect).
The total number of shares of Comdisco Stock which the
Corporation shall have the authority to issue shall
initially be 750,000,000, and the total number of shares of
Ventures Stock which the Corporation shall have the
authority to issue shall initially be 750,000,000. The Board
of Directors (or such committee of the Board of Directors as
the Board of Directors shall empower) is hereby empowered to
authorize by resolution or resolutions, an increase in the
number of authorized shares of Comdisco Stock or Ventures
Stock in (but not above a number for either series that,
when added to the number of authorized shares of all other
designated series of Common Stock would exceed the total
number of authorized shares of Common Stock) or a decrease
in the number of authorized shares of Comdisco Stock or
Ventures Stock (but not below the number of shares then
outstanding). The Board of Directors shall have the
authority to designate, prior to the time of the first
issuance of the Ventures Stock, the number which,
immediately prior to such first issuance, will constitute
the Number of Shares Issuable with Respect to Comdisco
Group's Retained Interest in Comdisco Ventures and any other
terms which are consistent with applicable law and the
provisions of this Article 4(A).
The Board of Directors (or such committee of the Board of
Directors as the Board of Directors shall empower) is hereby
empowered to authorize by resolution or resolutions from
time to time the issuance of one or more additional series
of Common Stock and to fix the designations, powers,
preferences and relative, participating, optional or other
rights, if any, and the qualifications, limitations or
restrictions thereof, if any, with respect to each series of
Common Stock and the number of shares constituting each such
series, and to increase or decrease the number of shares of
any such series to the extent permitted by the DGCL, as
amended from time to time.
2. Dividends.
(a) Dividends. Subject to the preferences and other terms of
any outstanding series of Preferred Stock, the holders of
any series of Common Stock shall be entitled to receive
dividends on their shares of Common Stock if, as, and when
declared by the Board of Directors out of the lesser of (i)
the funds of the Corporation legally available therefor or
(ii) the Available Dividend Amount for the Group to which
such series of Common Stock relates.
(b) Discrimination Between or Among Series of Common Stock.
Subject to paragraph (a) of Section 2 of this Article 4(A)
and subject to the preferences and other terms of any
outstanding series of Preferred Stock, the Corporation shall
have the authority to declare and pay dividends on a single
series of Common Stock, or one or more series of Common
Stock, in equal or unequal amounts, notwithstanding the
relative amounts of the Available Dividend Amount with
respect to any Group, the amount of assets available for
dividends on either series of Common Stock, the amount of
prior dividends paid on either series of Common Stock, the
respective voting rights of each series of Common Stock or
any other factor.
3. Mandatory Dividend, Redemption or Conversion on Disposition of
All or Substantially All of the Assets of a Group; Optional
Conversion of Comdisco Stock for Ventures Stock; Redemption of
Ventures Stock for Stock of a Subsidiary at the Corporation's
Option.
(a) Mandatory Dividend, Redemption or Conversion.
(i) In the event of a Disposition of All or
Substantially All of the Assets of a Group (other than
an Exempt Disposition), the Corporation shall, on or
before the 90th Trading Day after the Disposition Date,
provided that the funds of the Corporation are legally
available therefor, either:
(x) declare and pay a dividend to holders of the
series of Common Stock that relates to that Group
(in cash, securities (other than Common Stock) or
other property, or a combination thereof),
subject to the limitations on dividends set forth
under Section 2 of this Article 4(A), in an
aggregate amount having a Fair Value (determined
as of the Disposition Date) equal to the product
of the Outstanding Interest Fraction with respect
to such Group (determined as of the record date
for such dividend) and the Fair Value (determined
as of the Disposition Date) of the Net Proceeds
of such Disposition;
(y) redeem from holders of the series of Common
Stock that relates to the Group that consummated
such Disposition, in exchange for cash,
securities (other than Common Stock) or other
property (or a combination thereof) in an amount
equal to the product of the Outstanding Interest
Fraction with respect to such Group (determined
as of the redemption date) and the Fair Value
(determined as of the Disposition Date) of the
Net Proceeds of such Disposition, all of the
outstanding shares of such series of Common
Stock, unless such Disposition involves
substantially all, but not all, of the assets
attributed to such Group, in which case, a number
of shares of such series of Common Stock
(rounded, if necessary, to the nearest whole
number) having an aggregate average Market Value,
during the 20 consecutive Trading Day period
beginning on the 16th Trading Day following the
Disposition Date, equal to such amount; or
(z) if that Disposition relates to Comdisco
Ventures convert each outstanding share of
Ventures Stock into a number of shares of
Comdisco Stock (rounded, if necessary, to the
nearest whole number) equal to 115% of the ratio
of the average Market Value of one share of
Ventures Stock to the average Market Value of one
share of Comdisco Stock during the 20 consecutive
Trading Day period ending on (and including) the
fifth trading day prior to the first public
announcement immediately preceding the
Disposition Date).
(ii) For purposes of this Section 3 of this Article
4(A), if a Group consummates a Disposition in a series
of related transactions, such Disposition shall not be
deemed to have been completed until consummation of the
last of such transactions.
(b) Optional Conversion of Comdisco Stock for Ventures Stock
(i) The Corporation may, at any time, convert each
outstanding share of Ventures Stock into a number of
shares of Comdisco Stock (rounded, if necessary, to the
nearest whole number) equal to that percentage of the
ratio of the average Market Value of one share of
Ventures Stock to the average Market Value of one share
of Comdisco Stock (the "Applicable Percentage")
specified for the applicable conversion date below. The
average Market Value of a share of each series of
Common Stock shall be determined during the 20
consecutive Trading Day period ending on (and
including) the 5th Trading Day immediately preceding
the date on which the Corporation mails the notice of
conversion to holders of Ventures Stock.
If the Conversion Date The Applicable Percentage
Falls Will
During the Period be the Percentage
Indicated Specified for
Below Such Period Below
----- -----------------
First Quarter 125%
Second Quarter 124%
Third Quarter 123%
Fourth Quarter 122%
Fifth Quarter 121%
Sixth Quarter 120%
Seventh Quarter 119%
Eighth Quarter 118%
Ninth Quarter 117%
Tenth Quarter 116%
After Tenth Quarter 115%
For purposes of the foregoing chart, (x) the first
"Quarter" is the period from and including the date of
first issuance of shares of Ventures Stock to but
excluding the third month anniversary of such date
(provided that, if the date of first issuance of shares
of Ventures Stock is the 29th, 30th or 31st day of any
month, the first "Quarter" will be the period from and
including such date of first issuance to but excluding
the third month anniversary of the first day of the
month immediately following the month in which such
date of first issuance falls) and (y) each subsequent
"Quarter" is the period from and including the day
after the end of the prior Quarter to but excluding the
third month anniversary of such day.
(ii) Notwithstanding the preceding paragraphs, if a Tax
Event has occurred, the Applicable Percentage shall
equal 110% irrespective of when the exchange occurs.
"Tax Event" means the receipt by the Corporation of an
opinion of a tax advisor experienced in such matters,
who shall not be an officer or employee of the
Corporation or any of its affiliates, to the effect
that, as a result of any amendment to, or change in,
the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority
thereof or therein (including any proposed change in
such regulations announced by an administrative
agency), or as a result of any official or
administrative pronouncement or action or judicial
decision interpreting or applying such laws or
regulations, it is more likely than not that for United
States federal income tax purposes (1) the Corporation,
its subsidiaries or affiliates or any of its successors
or its stockholders is or, at any time in the future,
will be subject to tax upon the issuance of shares of
either Comdisco Stock or Ventures Stock, (2) either
Comdisco Stock or Ventures Stock is not or, at any time
in the future, will not be treated solely as stock of
the Corporation or (3) either Comdisco Stock or
Ventures Stock is or will be treated as Section 306
stock under the Internal Revenue Code of 1986, as
amended. For purposes of rendering such opinion, a tax
advisor shall assume that any administrative proposals
will be adopted as proposed. However, in the event a
change in law is proposed, a tax advisor shall render
an opinion only in the event of enactment.
(c) Optional Redemption of Ventures Stock for Stock of a
Subsidiary.
At any time at which all of the assets and liabilities
of Comdisco Ventures (and no other assets or
liabilities of the Corporation or any subsidiary
thereof) are held directly or indirectly by one or more
subsidiaries of the Corporation (the "Group
Subsidiaries"), the Board of Directors may, provided
that there are funds of the Corporation legally
available therefor, declare that all of the outstanding
shares of Ventures Stock shall be redeemed, as of the
exchange date described below, for the number of fully
paid and nonassessable shares of common stock of each
of such Group Subsidiaries as is equal to the product
of the Outstanding Interest Fraction with respect to
Comdisco Ventures (determined as of the redemption
date) and the number of shares of common stock of each
such Group Subsidiary held by Comdisco immediately
before such exchange. Such shares of common stock of
such Group Subsidiaries may be delivered directly or
indirectly through the delivery of shares of one or
more of such Group Subsidiaries that own directly or
indirectly all of the other shares that are deliverable
pursuant to the preceding sentence.
(d) General Dividend, Conversion and Redemption Provisions.
(i) If the Corporation completes a Disposition of All
or Substantially All of the Assets of a Group (other
than an Exempt Disposition), the Corporation shall, not
more than the 20 Trading Days after the consummation of
such Disposition, issue a press release specifying (w)
the Net Proceeds of such Disposition, (x) the number of
shares of the series of Common Stock related to such
Group then outstanding, (y) the number of shares of
such series of Common Stock issuable upon conversion,
redemption or exercise of any convertible or
exchangeable securities, options or warrants and the
conversion, redemption or exercise prices thereof and
(z) if the Group is not Comdisco Group, the Number of
Shares Issuable with Respect to Comdisco Group's
Retained Interest in such Group. The Corporation shall,
not more than 40 Trading Days after such consummation,
announce by press release which of the actions
specified in Section 3(a)(i) of this Article 4(A) it
has determined to take, and upon making that
announcement, that determination will be irrevocable.
In addition, the Corporation shall, not more than 45
Trading Days after such consummation and not less than
30 Trading Days before the applicable payment date,
redemption date or conversion date, send a notice by
first-class mail, postage prepaid, to holders of the
relevant series of Common Stock at their addresses as
they appear on the transfer books of the Corporation,
specifying:
(1) if the Corporation has determined to pay a
special dividend, (A) the record date for such
dividend, (B) the payment date of such dividend
(which cannot be more than 90 Trading Days after
such consummation) and (C) the aggregate amount
and type of property to be paid in such dividend
(and the approximate per share amount thereof);
(2) if the Corporation has determined to
undertake a redemption, (A) the date of
redemption (which cannot be more than 90 Trading
Days after such consummation), (B) the aggregate
amount and type of property to be paid as a
redemption price (and the approximate per share
amount thereof), (C) if less than all shares of
the relevant series of Common Stock are to be
redeemed, the number of shares to be redeemed and
(D) the place or places where certificates for
shares of such series of Common Stock, properly
endorsed or assigned for transfer (unless the
Corporation waives such requirement), should be
surrendered in return for delivery of the cash,
securities or other property to be paid by the
Corporation in such redemption; and
(3) if the Corporation has determined to
undertake a conversion, (A) the date of
conversion (which cannot be more than 90 Trading
Days after such consummation), (B) the number of
shares of the other series of Common Stock to be
issued in the conversion for each outstanding
share of such series of Common Stock and (C) the
place or places where certificates for shares of
such series of Common Stock, properly endorsed or
assigned for transfer (unless the Corporation
waives such requirement), should be surrendered
in return for delivery of the other series of
Common Stock to be issued by the Corporation in
such conversion.
(ii) If the Corporation has determined to complete any
conversion described in Section 3(b) or (c) of this
Article 4(A), the Corporation shall, not less than 30
Trading Days and not more than 45 Trading Days before
the exchange date, send a notice by first-class mail,
postage prepaid, to holders of the relevant series of
Common Stock at their addresses as they appear on the
transfer books of the Corporation, specifying (x) the
conversion date and the other terms of the conversion
and (y) the place or places where certificates for
shares of such series of Common Stock, properly
endorsed or assigned for transfer (unless the
Corporation waives such requirement), should be
surrendered for delivery of the stock to be issued or
delivered by the Corporation in such conversion.
(iii) Neither the failure to mail any notice required
by this Section 3(d) of this Article 4(A) to any
particular holder nor any defect therein would affect
the sufficiency thereof with respect to any other
holder or the validity of any dividend, redemption or
conversion contemplated hereby.
(iv) If the Corporation is redeeming less than all of
the outstanding shares of a series of Common Stock
pursuant to Section 3(a)(i) of this Article 4(A), the
Corporation shall redeem such shares pro rata or by lot
or by such other method as the Board of Directors
determines to be equitable.
(v) No holder of shares of a series of Common Stock
being converted or redeemed shall be entitled to
receive any cash, securities or other property to be
distributed in such conversion or redemption until such
holder surrenders certificates for such shares,
properly endorsed or assigned for transfer, at such
place as the Corporation shall specify (unless the
Corporation waives such requirement). As soon as
practicable after the Corporation's receipt of
certificates for such shares, the Corporation shall
deliver to the person for whose account such shares
were so surrendered, or to the nominee or nominees of
such person, the cash, securities or other property to
which such person shall be entitled, together with any
fractional payment referred to below, in each case
without interest. If less than all of the shares of
Common Stock represented by any one certificate is
converted or redeemed, the Corporation shall also issue
and deliver a new certificate for the shares of such
Common Stock not converted or redeemed.
(vi) The Corporation shall not be required to issue or
deliver fractional shares of any capital stock or any
other fractional securities to any holder of Common
Stock upon conversion, redemption, dividend or other
distribution described above. If more than one share of
Common Stock shall be held at the same time by the same
holder, the Corporation may aggregate the number of
shares of any capital stock that would be issuable or
any other securities that would be distributable to
such holder upon any such conversion, redemption,
dividend or other distribution. If there are fractional
shares of any capital stock or any other fractional
securities remaining to be issued or distributed to any
holder, the Corporation shall, if such fractional
shares or securities are not issued or distributed to
such holder, pay cash in respect of such fractional
shares or securities in an amount equal to the Fair
Value thereof (without interest).
(vii) From and after the date set for any conversion or
redemption contemplated by this Section 3 of this
Article 4(A), all rights of a holder of shares of
Common Stock being converted or redeemed shall cease
except for the right, upon surrender of the
certificates theretofore representing such shares, to
receive the cash, securities or other property for
which such shares were converted or redeemed, together
with any fractional payment as provided above, in each
case without interest (and, if such holder was a holder
of record as of the close of business on the record
date for a dividend not yet paid, the right to receive
such dividend). A holder of shares of Common Stock
being converted shall not be entitled to receive any
dividend or other distribution with respect to shares
of the other series of Common Stock until after
certificates theretofore representing the shares being
converted are surrendered as contemplated above. Upon
such surrender, the Corporation shall pay to the holder
the amount of any dividends or other distributions
(without interest) which theretofore became payable
with respect to a record date occurring after the
conversion, but which were not paid by reason of the
foregoing, with respect to the number of whole shares
of the other series of Common Stock represented by the
certificate or certificates issued upon such surrender.
From and after the date set for any conversion, the
Corporation shall, however, be entitled to treat the
certificates for shares of a series of Common Stock
being converted that were not yet surrendered for
conversion as evidencing the ownership of the number of
whole shares of the other series of Common Stock for
which the shares of such Common Stock should have been
converted, notwithstanding the failure to surrender
such certificates.
(viii) The Corporation shall pay any and all
documentary, stamp or similar issue or transfer taxes
that might be payable in respect of the issue or
delivery of any shares of capital stock and/or other
securities on any conversion or redemption contemplated
by this Section 3; provided, however, that the
Corporation shall not be required to pay any tax that
might be payable in respect of the issue or delivery of
any shares of capital stock and/or other securities on
any conversion or redemption contemplated by this
Section 3; provided, however, that the Corporation
shall not be required to pay any tax that might be
payable in respect of any transfer involved in the
issue or delivery of any shares of capital stock and/or
other securities in a name other than that in which the
shares so converted or redeemed were registered, and no
such issue or delivery will be made unless and until
the person requesting such issue pays to the
Corporation the amount of any such tax, or establishes
to the satisfaction of the Corporation that such tax
has been paid.
(ix) The Corporation may, subject to applicable law,
establish such other rules, requirements and procedures
to facilitate any dividend, redemption or conversion
contemplated by this Section 3 as the Board of
Directors may determine to be appropriate under the
circumstances.
4. Voting Rights.
At every meeting of stockholders, the holders of Comdisco
Stock and the holders of Ventures Stock shall vote together
as a single class on all matters as to which common
stockholders generally are entitled to vote, unless a
separate vote is required by applicable law. On all such
matters for which no separate vote is required, (a) holders
of Comdisco Stock shall be entitled to one vote per share of
Comdisco Stock held and (b) before the 31st Trading Day
after the Effective Date, holders of Ventures Stock shall be
entitled to one vote per share of Ventures Stock held. On
and after the 31st Trading Day after the Effective Date,
holders of Ventures Stock shall be entitled to a number of
votes per share of Ventures Stock held (calculated to the
nearest five decimal places) equal to the Average Market
Value of one share of Ventures Stock divided by the Average
Market Value of one share of Comdisco Stock during the 20
Trading Day period ending on (and including) the applicable
record date; provided that, in no event, shall the total
number of votes of all outstanding Ventures Stock exceed 35%
of the total number of votes of all outstanding series of
Common Stock.
5. Liquidation Rights.
In the event of any voluntary or involuntary liquidation,
dissolution or winding-up of the Corporation, holders of
each series of Common Stock shall be entitled to receive
their proportionate interests in the net assets of the
Corporation, if any, remaining for distribution to
stockholders, after payment of or provision for all
liabilities, including contingent liabilities of the
Corporation and payment of the liquidation preference
payable to any holders of the Corporation's Preferred Stock,
if any such stock is outstanding. Each share of each series
of Common Stock will be entitled to a share of net
liquidation proceeds in proportion to the respective
liquidation units per share of such class. Each share of
Comdisco Stock shall have one liquidation unit. Each share
of the other series of Common Stock shall have a number of
liquidation units (including a fraction of one liquidation
unit) equal to the quotient (rounded to the nearest five
decimal places) of the average Market Value of one share of
such series of Common Stock during the 20 consecutive
Trading Day period ending on, and including, the 300th day
after the Effective Date, divided by the average Market
Value of one share of Comdisco Stock during such 20 Trading
Day period. If the liquidation, dissolution, or winding-up
of the Corporation occurs before such 300th day, the average
Market Value will be determined based on the 20 consecutive
Trading Day period ending immediately before the
liquidation, dissolution, or winding-up event, or such
lesser number of consecutive Trading Days immediately prior
to such event if the liquidation, dissolution, or winding-up
event occurs prior to the 21st Trading Day after the
Effective Date.
Neither the merger nor consolidation of the Corporation with
any other entity, nor a sale, transfer or lease of all or
any part of the assets of the Corporation, would, alone, be
deemed a liquidation, dissolution or winding-up for purposes
of this Section 5 of this Article 4(A).
6. Adjustments to Number of Shares Issuable with Respect to
Comdisco Group's Retained Interest in Any Group.
The Number of Shares Issuable with Respect to Comdisco
Group's Retained Interest in any Group, as in effect from
time to time, shall, automatically without action by the
Board of Directors or any other person, be:
(a) adjusted in proportion to any changes in the number
of outstanding shares of the series of Common Stock
related to such Group caused by subdivisions (by stock
split, reclassification or otherwise) or combinations
(by reverse stock split, reclassification or otherwise)
of shares of such series of Common Stock or by
dividends or other distributions of shares of such
series of Common Stock on shares of such series of
Common Stock (and, in each such case, rounded, if
necessary, to the nearest whole number);
(b) decreased by (i) if the Corporation issues any
shares of the series of Common Stock related to such
Group and the Board of Directors attributes that
issuance (and the proceeds thereof) to Comdisco Group,
the number of shares of each series of Common Stock so
issued, and (ii) if the Board of Directors reallocates
to Comdisco Group any cash or other assets theretofore
allocated to such Group in connection with a redemption
of shares of the series of Common Stock related to such
Group (as required pursuant to clause (ii) of the
proviso to the definition of Comdisco Group below) or
in return for a decrease in the Number of Shares
Issuable with Respect to Comdisco Group's Retained
Interest in such Group, the number (rounded, if
necessary, to the nearest whole number) equal to (x)
the aggregate Fair Value of such cash or other assets
divided by (y) the Market Value of one share of the
series of Common Stock related to such Group as of the
date of such reallocation; and
(c) increased by (i) if the Corporation repurchases any
shares of the series of Common Stock related to such
Group and the Board of Directors attributes that
repurchase (and the consideration therefor) to Comdisco
Group, the number of shares of such series of Common
Stock so repurchased and (ii) if the Board of Directors
re-allocates to such Group any cash or other assets
theretofore allocated to Comdisco Group in return for
an increase in the Number of Shares Issuable with
Respect to Comdisco Group's Retained Interest in such
Group, the number (rounded, if necessary, to the
nearest whole number) equal to (x) the Fair Value of
such cash or other assets divided by (y) the Market
Value of one share of the series of Common Stock
related to such Group as of the date of such
re-allocation.
Neither the Corporation nor the Board of Directors shall
take any action that would, as a result of any of the
foregoing adjustments, reduce the Number of Shares Issuable
with Respect to Comdisco Group's Retained Interest in any
Group to below zero. Subject to the preceding sentence, the
Board of Directors may attribute the issuance of any shares
of any series of Common Stock (and the proceeds here from)
or the repurchase of any series of Common Stock (and the
consideration therefor) to Comdisco Group and Delivery or to
the Group to which such series of Common Stock relates, as
the Board of Directors determines in its sole discretion;
provided, however, that the Board of Directors must
attribute to Comdisco Group the issuance of any shares of
any series of Common Stock that are issued (1) as a dividend
or other distribution on, or as consideration for the
repurchase of, shares of Comdisco Stock or (2) as
consideration to acquire any assets or satisfy any
liabilities attributed to Comdisco Group.
7. Additional Definitions.
As used in this Article 4, the following terms shall have
the following meanings (with terms defined in singular
having comparable meaning when used in the plural and vice
versa), unless the context otherwise requires:
"ALL OR SUBSTANTIALLY ALL OF THE ASSETS" of any Group means
a portion of such assets that represents at least 80% of the
then current Fair Value of the assets of such Group.
"AVAILABLE DIVIDEND AMOUNT" for Comdisco Group, on any day
on which dividends are paid on shares of Comdisco Stock, is
the amount that would, immediately prior to the payment of
such dividends, be legally available for the payment of
dividends on shares of Comdisco Stock under Delaware law if
(a) Comdisco Group and each other Group were each a single,
separate Delaware corporation, (b) Comdisco Group had
outstanding (i) a number of shares of common stock, par
value $0.10 per share, equal to the number of shares of
Comdisco Stock that are then outstanding and (ii) a number
of shares of preferred stock, par value $0.10 per share,
equal to the number of shares of Preferred Stock that have
been attributed to Comdisco Group and are then outstanding,
(c) the assumptions about each Group that is not Comdisco
Group set forth in the next sentence were true and (d)
Comdisco Group owned a number of shares of each series of
Common Stock (other than Comdisco Stock) equal to the Number
of Shares Issuable with Respect to Comdisco Group's Retained
Interest in each Group to which each such series of Common
Stock relates.
"AVAILABLE DIVIDEND AMOUNT" for any Group other than
Comdisco Group, on any day on which dividends are paid on
shares of the series of Common Stock relating to such Group,
is the amount that would, immediately prior to the payment
of such dividends, be legally available for the payment of
dividends on shares of such series of Common Stock under
Delaware law if such Group were a single, separate Delaware
corporation having outstanding (a) a number of shares of
common stock, par value $0.10 per share, equal to the number
of shares of such series of Common Stock that are then
outstanding plus the Number of Shares Issuable with Respect
to Comdisco Group's Retained Interest in such Group and (b)
a number of shares of preferred stock, par value $0.10 per
share, equal to the number of shares of Preferred Stock that
have been attributed to such Group and are then outstanding.
"COMDISCO GROUP" means (a) all of the businesses, assets and
liabilities of the Corporation and its subsidiaries, other
than the businesses, assets and liabilities that are part of
any Group other than Comdisco Group, (b) the rights and
obligations of Comdisco Group under any inter-Group debt
deemed to be owed to or by Comdisco Group (as such rights
and obligations are defined in accordance with policies
established from time to time by the Board of Directors) and
(c) a proportionate interest in any Group other than
Comdisco Group (after giving effect to any options,
Preferred Stock, other securities or debt issued or incurred
by the Corporation and attributed to any Group other than
Comdisco Group) equal to the Retained Interest Percentage;
provided, however, that: (i) the Corporation may re-allocate
assets from one Group to another Group in return for other
assets or services rendered by that other Group in the
ordinary course of business or in accordance with policies
established by the Board of Directors from time to time, and
(ii) if the Corporation transfers cash, other assets or
securities to holders of shares of a series of Common Stock
other than Comdisco Stock as a dividend or other
distribution on shares of such series of Common Stock (other
than a dividend or distribution payable in shares of such
series of Common Stock), or as payment in a redemption
required by Section (3)(a) of this Article 4(A), then the
Board of Directors shall re-allocate from such Group to
Comdisco Group cash or other assets having a Fair Value
equal to the aggregate Fair Value of the cash, other assets
or securities so transferred times the Retained Interest
Amount with respect to such Group as of the record date for
such dividend or distribution, or on the date of such
redemption, as the case may be.
"COMDISCO VENTURES" means (a) the venture financing business
division of the Corporation; and all of the businesses,
assets and liabilities of the Corporation and its
subsidiaries that the Board of Directors has, as of the
Effective Date, allocated to Comdisco Ventures for
accounting purposes, (b) any assets or liabilities acquired
or incurred by the Corporation or any of its subsidiaries
after the Effective Date in the ordinary course of business
and attributable to Comdisco Ventures, (c) any businesses,
assets or liabilities acquired or incurred by the
Corporation or any of its subsidiaries after the Effective
Date that the Board of Directors has specifically allocated
to Comdisco Ventures or that the Corporation otherwise
allocates to Comdisco Ventures in accordance with policies
established from time to time by the Board of Directors and
(d) the rights and obligations of Comdisco Ventures under
any inter-Group debt deemed to be owed to or by Comdisco
Ventures (as such rights and obligations are defined in
accordance with policies established from time to time by
the Board of Directors); provided, however, that:
(i) the Corporation may re-allocate assets from one
Group to another Group in return for other assets or
services rendered by that other Group in the ordinary
course of business or in accordance with policies
established by the Board of Directors from time to
time, and (ii) if the Corporation transfers cash, other
assets or securities to holders of shares of Ventures
Stock as a dividend or other distribution on shares of
Ventures Stock (other than a dividend or distribution
payable in shares of Ventures Stock), or as payment in
a redemption of shares of Ventures Stock required by
Section 3(a) of this Article 4(A), then the Board of
Directors shall re-allocate from Comdisco Ventures to
Comdisco Group cash or other assets having a Fair Value
equal to the aggregate Fair Value of the cash, other
assets or securities so transferred multiplied by a
fraction, the numerator of which shall equal the Number
of Shares Issuable with Respect to Comdisco Group's
Retained Interest in such Group on the record date for
such dividend or distribution, or on the date of such
redemption, and the denominator of which shall equal
the number of shares of such Group outstanding on such
date.
"DISPOSITION" means a sale, transfer, assignment or other
disposition (whether by merger, consolidation, sale or
otherwise) of All or Substantially All of the Assets of a
Group to one or more persons or entities, in one transaction
or a series of related transactions.
"DISPOSITION DATE" is the date of the consummation of a
Disposition.
"EFFECTIVE DATE" means the date on which this Amended and
Restated Certificate of Incorporation becomes effective
under Delaware law.
"EXEMPT DISPOSITION" means any of the following:
(a) Disposition in connection with the liquidation,
dissolution or winding-up of the Corporation and the
distribution of assets to stockholders, (b) a
Disposition to any person or entity controlled by the
Corporation (as determined by the Board of Directors in
its sole discretion), (c) a Disposition by any Group
for which the Corporation receives consideration
primarily consisting of equity securities (including,
without limitation, capital stock of any kind,
interests in a general or limited partnership,
interests in a limited liability company or debt
securities convertible into or exchangeable for, or
options or warrants to acquire, any of the foregoing,
in each case without regard to the voting power or
other management or governance rights associated
therewith) of an entity which is primarily engaged or
proposes to engage primarily in one or more businesses
similar or complementary to businesses conducted by
such Group prior to the Disposition, as determined by
the Board of Directors in its sole discretion, (d) a
dividend, out of any Group's assets, to holders of
series of Common Stock related to such Group and a
re-allocation of a corresponding amount of such Group's
assets to Comdisco Group as required pursuant to clause
(ii) of the proviso to the definition of Comdisco Group
above, (e) a dividend, out of Comdisco Group's assets,
to holders of Comdisco Stock and (f) any other
Disposition, if (i) at the time of the Disposition
there are no shares of Comdisco Stock outstanding, (ii)
at the time of the Disposition there are no shares of
the series of Common Stock relating to the Group that
consummated such Disposition outstanding or (iii)
before the 30th Trading Day following the Disposition
the Corporation has mailed a notice stating that it is
exercising its right to exchange all of the outstanding
shares of the series of Common Stock relating to the
Group that consummated such Disposition for newly
issued shares of Comdisco Stock as contemplated under
Section 3(b) of this Article 4(A).
"FAIR VALUE" means (a) in the case of cash, the amount
thereof, (b) in the case of capital stock that has been
Publicly Traded for a period of at least 15 months, the
Market Value thereof and (c) in the case of other assets or
securities, the fair market value thereof as the Board of
Directors shall determine in good faith (which determination
shall be conclusive and binding on all stockholders).
"GROUP" initially means Comdisco Group or Comdisco Ventures;
provided that if the Board of Directors authorizes the
issuance of shares of a series of Common Stock other than
Comdisco Stock or Ventures Stock, the Board of Directors
shall designate the assets and liabilities of Comdisco Group
to which such series of Common Stock relates, which assets
and liabilities shall be an additional "Group" for all
purposes of this Article 4.
"MARKET VALUE" of a share of any class or series of capital
stock on any Trading Day means the average of the high and
low reported sales prices of such class or series on such
Trading Day or, in case no such reported sale takes place on
such Trading Day, the average of the reported closing bid
and asked prices regular way of a share of such class or
series on such Trading Day, in either case as reported on
the New York Stock Exchange ("NYSE") Composite Tape or, if
the shares of such class or series are not listed or
admitted to trading on the NYSE on such Trading Day, on the
principal national securities exchange on which the shares
of such class or series are listed or admitted to trading
or, if not listed or admitted to trading on any national
securities exchange on such Trading Day, on The Nasdaq
National Market System of the Nasdaq Stock Market ("NASDAQ
NMS") or, if the shares of such class or series are not
listed or admitted to trading on any national securities
exchange or quoted on the Nasdaq NMS on such Trading Day,
the average of the closing bid and asked prices of a share
of such class or series in the over-the-counter market on
such Trading Day as furnished by any NYSE member firm
selected from time to time by the Corporation or, if such
closing bid and asked prices are not made available by any
such NYSE member firm on such Trading Day, the fair market
value of a share of such class or series as the Board of
Directors shall determine in good faith (which determination
shall be conclusive and binding on all stockholders);
provided, that, for purposes of determining the average
Market Value of a share of any class or series of capital
stock for any period, (a) the "Market Value" of a share of
any class or series of capital stock on any day prior to any
"ex-dividend" date or any similar date occurring during such
period for any dividend or distribution (other than any
dividend or distribution contemplated by clause (b)(ii) of
this sentence) paid or to be paid with respect to such
capital stock shall be reduced by the Fair Value of the per
share amount of such dividend or distribution and (b) the
"Market Value" of a share of any class or series of capital
stock on any day prior to (i) the effective date of any
subdivision (by stock split or otherwise) or combination (by
reverse stock split or otherwise) of outstanding shares of
such class or series of capital stock occurring during such
period or (ii) any "ex-dividend" date or any similar date
occurring during such period for any dividend or
distribution with respect to such capital stock to be made
in shares of such class or series of capital stock shall be
appropriately adjusted, as determined by the Board of
Directors, to reflect such subdivision, combination,
dividend or distribution; and provided further, if (a) the
Corporation repurchases outstanding shares of any series
Common Stock other than Comdisco Stock and the Board of
Directors attributes that repurchase (and the consideration
therefor) to the Group to which such series of Common Stock
relates and (b) the Board of Directors determines to
re-allocate to Comdisco Group cash or other assets
theretofore allocated to the Group to which such series of
Common Stock relates in order to avoid a change in the
Retained Interest Percentage, the "Market Value" of a share
any series Common Stock other than Comdisco Stock used to
compute the corresponding reduction in the Number of Shares
Issuable with Respect to Comdisco Group's Retained Interest
in the Group to which such series of Common Stock relates
will equal the Fair Value of the consideration paid per
share of Common Stock so repurchased; and provided further,
if the Corporation redeems a portion of the outstanding
shares of any of series of Common Stock other than Comdisco
Stock (and the Board of Directors re-allocates to Comdisco
Group cash or other assets theretofore allocated to the
Group to which such series of Common Stock relates in the
manner required by clause (ii) of the proviso to the
definition of Comdisco Group above), the "Market Value" of a
share of such series of Common Stock used to compute the
corresponding reduction in the Number of Shares Issuable
with Respect to Comdisco Group's Retained Interest in the
Group to which such series of Common Stock relates will
equal the Fair Value of the consideration paid per share of
such series of Common Stock so redeemed.
"NET PROCEEDS" of a Disposition of any of the assets of a
Group means the positive amount, if any, remaining from the
gross proceeds of such Disposition after any payment of, or
reasonable provision (as determined in good faith by the
Board of Directors, which determination will be conclusive
and binding on all stockholders) for, (a) any taxes payable
by the Corporation or any subsidiary or affiliate thereof in
respect of such Disposition or which would have been payable
but for the utilization of tax benefits attributable to the
Group not the subject of the Disposition, (b) any taxes
payable by the Corporation in respect of any resulting
dividend or redemption, (c) any transaction costs,
including, without limitation, any legal, investment banking
and accounting fees and expenses and (d) any liabilities
(contingent or otherwise) of, attributed to or related to,
such Group, including, without limitation, any liabilities
for deferred taxes or any indemnity or guarantee obligations
which are outstanding or incurred in connection with the
Disposition or otherwise, any liabilities for future
purchase price adjustments and any obligations with respect
to outstanding securities (other than Common Stock)
attributed to such Group as determined in good faith by the
Board of Directors.
"NUMBER OF SHARES ISSUABLE WITH RESPECT TO COMDISCO GROUP'S
RETAINED INTEREST" means, with respect to any Group,
initially the number the Board of Directors designates prior
to the time the Corporation first issues shares of the
series of Common Stock applicable to such Group as the
number of shares of such series of Common Stock that could
be issued by the Corporation for the account of Comdisco
Group in respect of its retained interest in such Group, as
authorized by Section 1 of this Article 4(A); provided,
however, that such number as in effect from time to time
shall automatically be adjusted as required by Section 6 of
this Article 4(A).
"OUTSTANDING INTEREST FRACTION" means (i) with respect to
Comdisco Group, at any time of determination, and (ii) with
respect to any other Group, at any time of determination, a
fraction the numerator of which shall be the number of
shares of the series of Common Stock applicable to such
Group outstanding on such date and the denominator of which
shall be the sum of the number of shares of the series of
Common Stock applicable to such Group outstanding on such
date and the Number of Shares Issuable with Respect to
Comdisco Group's Retained Interest in such Group.
"PUBLICLY TRADED" with respect to any security means (a)
registered under Section 12 of the Securities Exchange Act
of 1934, as amended (or any successor provision of law), and
(b) listed for trading on the NYSE (or any other national
securities exchange registered under Section 7 of the
Securities Exchange Act of 1934, as amended (or any
successor provision of law)) or listed on the Nasdaq NMS (or
any successor market system).
"RETAINED INTEREST" means with respect to any Group, other
than Comdisco Group, at any time of determination, a
fraction the numerator of which shall be the Number of
Shares Issuable with Respect to Comdisco Group's Retained
Interest in such Group and the denominator of which shall be
the number of shares of the series of common stock relating
to such Group outstanding on such date.
"RETAINED INTEREST PERCENTAGE" means (i) with respect to
Comdisco Group, at any time of determination, one (1) and
(ii) with respect to any Group that is not Comdisco Group,
at any time of determination, a fraction the numerator of
which shall be the Number of Shares Issuable with Respect to
Comdisco Group's Retained Interest in such Group and the
denominator of which shall be the sum of the number of
shares of the series of common stock applicable to such
Group outstanding on such date and the Number of Shares
Issuable with Respect to Comdisco Group's Retained Interest
in such Group.
"TRADING DAY" means each weekday on which the relevant
security (or, if there are two relevant securities, each
relevant security) is traded on the principal national
securities exchange on which it is listed or admitted to
trading or on the Nasdaq NMS or, if such security is not
listed or admitted to trading on a national securities
exchange or quoted on the Nasdaq NMS, traded in the
principal over-the-counter market in which it trades.
8. Effectiveness of Sections 2 through 7 of This Article 4(A).
The terms of Sections 2 through 7, inclusive, of this
Article 4 (A) shall apply only when there are shares of
multiple series of Common Stock outstanding.
9. Determinations by the Board of Directors.
Subject to applicable law, any determinations made by the
Board of Directors in good faith under this Amended and
Restated Certificate of Incorporation, as it may be amended
from time to time, including without limitation any such
determinations with respect to the businesses, assets and
liabilities of either Group, transactions between the Groups
or the rights of holders of any series of Common Stock or
Preferred Stock made pursuant to or in the furtherance
hereof, shall be final and binding on all stockholders of
the Corporation. A record of all formal determinations of
the Board of Directors made as contemplated hereby shall be
filed with the records of the actions of the Board of
Directors.
B. Preferred Stock.
1. Designation. The Preferred Stock shall be designated and known
as "Preferred Stock." The number of shares constituting such
Preferred Stock shall be 100,000,000.
2. Rights and Preferences. Preferred Stock may be issued from
time to time in one or more series, each of such series to
have such terms as stated or expressed herein and in the
resolution or resolutions providing for the issue of such
series adopted by the Board of Directors of the Corporation as
hereinafter provided. Any shares of Preferred Stock, which may
be redeemed, purchased or acquired by the Corporation, may be
reissued except as otherwise provided by law. Different series
of Preferred Stock shall not be construed to constitute
different classes of shares for the purposes of voting by
classes unless expressly provided.
Authority is hereby expressly granted to the Board of Directors
from time to time to issue the Preferred Stock in one or more
series, and in connection with the creation of any such
series, by resolution or resolutions providing for the issue
of the shares thereof, to determine and fix such voting
powers, full or limited, or no voting powers, and such
designations, preferences and relative participating, optional
or other special rights, and qualifications, limitations or
restrictions thereof, including without limitation thereof,
dividend rights, conversion rights, redemption privileges and
liquidation preferences, as shall be stated and expressed in
such resolutions, all to the full extent now or hereafter
permitted by the General Corporation Law of Delaware. Without
limiting the generality of the foregoing, the resolutions
providing for issuance of any series of Preferred Stock may
provide that such series shall be superior or rank equally or
be junior to the Preferred Stock of any other series to the
extent permitted by law. Except as otherwise provided in this
Amended and Restated Certificate of Incorporation, no vote of
the holders of the Preferred Stock or Common Stock shall be a
prerequisite to the designation or issuance of any shares of
any series of the Preferred Stock authorized by and complying
with the conditions of this Amended and Restated Certificate
of Incorporation, the right to have such vote being expressly
waived by all present and future holders of the capital stock
of the Corporation.
C. Designation of Series C Junior Participating Preferred Stock
1. Designation and Amount. Two Hundred Thousand (200,000) of the
authorized and unissued shares of Preferred Stock are designated
as "Series C Junior Participating Preferred Stock." Such number
of shares may be increased or decreased by resolution of the
Board of Directors; provided, that no decrease shall reduce the
number of shares of Series C Preferred Stock to a number less
than the number of shares then outstanding plus the number of
shares reserved for issuance upon the exercise of outstanding
options, rights or warrants or upon the conversion of any
outstanding securities issued by the Corporation convertible into
Series C Junior Participating Preferred Stock.
2. Dividends and Distributions.
(a) The holders of shares of Series C Junior Participating
Preferred Stock shall be entitled to receive, when, as and
if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in
cash on the last day of March, June, September and December
in each year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of
a share or fraction of a share of Series C Junior
Participating Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (x)
$1.00 or (y) subject to the provision for adjustment
hereinafter set forth, 1,000 times the aggregate per share
amount of all cash dividends, and 1,000 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 Comdisco Stock or a subdivision of the outstanding
shares of Comdisco Stock (by reclassification or otherwise),
declared on the Comdisco Stock of the Corporation since the
immediately preceding Quarterly Dividend Payment Date, or,
with respect to the first Quarterly Dividend Payment Date,
since the first issuance of any share or fraction of a share
of Series C Junior Participating Preferred Stock. In the
event the Corporation shall at any time after the date that
these Restated and Amended Articles of Incorporation become
effective (the "Rights Declaration Date") (i) declare any
dividend on Comdisco Stock payable in shares of Comdisco
Stock, (ii) subdivide the outstanding Comdisco Stock, or
(iii) combine the outstanding Comdisco Stock into a smaller
number of shares, then in each such case the amount to which
holders of shares of Series C Junior Participating Preferred
Stock were entitled immediately prior to such event under
clause (y) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of which
is the number of shares of Comdisco Stock outstanding
immediately after such event and the denominator of which is
the number of shares of Comdisco Stock that were outstanding
immediately prior to such event.
(b) The Corporation shall declare a dividend or distribution
on the Series C Junior Participating Preferred Stock as
provided in Paragraph (a) above immediately after it
declares a dividend or distribution on the Comdisco Stock
(other than a dividend payable in shares of Comdisco Stock);
provided that, in the event no dividend or distribution
shall have been declared on the Comdisco Stock during the
period between any Quarterly Dividend Payment Date and the
next subsequent Quarterly Dividend Payment Date, a dividend
of $0.01 per share on the Series C Junior Participating
Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series C Junior Participating
Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares of Series C
Junior Participating Preferred Stock, unless the date of
issue of such shares is prior to the record date for the
first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the
record date for the determination of holders of shares of
Series C Junior Participating Preferred Stock 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 Series C Junior Participating Preferred Stock in
an amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such
shares at the time outstanding.
The Board of Directors may fix a record date for the
determination of holders of shares of Series C Junior
Participating Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date
shall be no more than 30 days prior to the date fixed for the
payment thereof.
3. Voting Rights. The holders of shares of Series C Junior
Participating Preferred Stock shall have the following voting
rights:
(a) Subject to the provision for adjustment hereinafter set
forth, each share of Series C Junior Participating Preferred
Stock shall entitle the holder thereof to 1,000 votes on all
matters submitted to a vote of the stockholders of the
Corporation. In the event the Corporation shall at any time
after the Rights Declaration Date (i) declare any dividend
on Comdisco Stock payable in shares of Comdisco Stock, (ii)
subdivide the outstanding Comdisco Stock, or (iii) combine
the outstanding Comdisco Stock into a smaller number of
shares, then in each such case the number of votes per share
to which holders of shares of Series C Junior Participating
Preferred Stock were entitled immediately prior to such
event shall be adjusted by multiplying such number by a
fraction the numerator of which is the number of shares of
Comdisco Stock outstanding immediately after such event and
the denominator of which is the number of shares of Comdisco
Stock that were outstanding immediately prior to such event.
(b) Except as otherwise provided herein or by law, the
holders of shares of Series C Junior Participating Preferred
Stock and the holders of shares of Comdisco Stock shall vote
together as one class on all matters submitted to a vote of
stockholders of the Corporation.
(c) (i) If at any time dividends on any Series C Junior
Participating Preferred Stock shall be in arrears in an
amount equal to six (6) quarterly dividends thereon, the
occurrence of such contingency shall mark the beginning of a
period (herein called a "default period") which shall extend
until such time when all accrued and unpaid dividends for
all previous quarterly dividend periods and for the current
quarterly dividend period on all shares of Series C Junior
Participating Preferred Stock then outstanding shall have
been declared and paid or set apart for payment. During each
default period, all holders of Preferred Stock (including
holders of the Series C Junior Participating Preferred
Stock) with dividends in arrears in an amount equal to six
(6) quarterly dividends thereon, voting as a class,
irrespective of series, shall have the right to elect two
(2) directors.
(ii) During any default period, such voting right of the
holders of Series C Junior Participating Preferred Stock may
be exercised initially at a special meeting called pursuant
to subparagraph (iii) of this Section 3(c) of this Article
4(C) or at any annual meeting of stockholders, and
thereafter at annual meetings of stockholders, provided that
such voting right shall not be exercised unless the holders
of ten percent (10%) in number of shares of Preferred Stock
outstanding shall be present in person or by proxy. The
absence of a quorum of the holders of Common Stock shall not
affect the exercise by the holders of Preferred Stock of
such voting right. At any meeting at which the holders of
Preferred Stock shall exercise such voting right initially
during an existing default period, they shall have the
right, voting as a class, to elect directors to fill such
vacancies, if any, in the Board of Directors as may then
exist up to two (2) directors or, if such right is exercised
at an annual meeting, to elect two (2) directors. If the
number which may be so elected at any special meeting does
not amount to the required number, the holders of the
Preferred Stock shall have the right to make such increase
in the number of directors as shall be necessary to permit
the election by them of the required number. After the
holders of the Preferred Stock shall have exercised their
right to elect directors in any default period and during
the continuance of such period, the number of directors
shall not be increased or decreased except by vote of the
holders of Preferred Stock as herein provided or pursuant to
the rights of any equity securities ranking senior to or
pari passu with the Series C Junior Participating Preferred
Stock.
(iii) Unless the holders of Preferred Stock shall, during an
existing default period, have previously exercised their
right to elect directors, the Board of Directors may order,
or any stockholder or stockholders owning in the aggregate
not less than ten percent (10%) of the total number of
shares of Preferred Stock outstanding, irrespective of
series, may request, the calling of special meeting of the
holders of Preferred Stock, which meeting shall thereupon be
called by the President, a Vice-President or the Secretary
of the Corporation. Notice of such meeting and of any annual
meeting at which holders of Preferred Stock are entitled to
vote pursuant to this subparagraph (iii) shall be given to
each holder of record of Preferred Stock by mailing a copy
of such notice to him or her at his or her last address as
the same appears on the books of the Corporation. Such
meeting shall be called for a time not earlier than 20 days
and not later than 60 days after such order or request or in
default of the calling of such meeting within 60 days after
such order or request, such meeting may be called on similar
notice by any stockholder or stockholders owning in the
aggregate not less than ten percent (10%) of the total
number of shares of Preferred Stock outstanding.
Notwithstanding the provisions of this subparagraph (iii),
no such special meeting shall be called during the period
within 60 days immediately preceding the date fixed for the
next annual meeting of the stockholders.
(iv) In any default period, the holders of Common Stock, and
other classes of stock of the Corporation if applicable,
shall continue to be entitled to elect the whole number of
directors until the holders of Preferred Stock shall have
exercised their right to elect two (2) directors voting as a
class, after the exercise of which right (x) the directors
so elected by the holders of Preferred Stock shall continue
in office until their successors shall have been elected by
such holders or until the expiration of the default period,
and (y) any vacancy in the Board of Directors may (except as
provided in Paragraph (ii) of this Section 3(c) of this
Article 4(C)) be filled by vote of a majority of the
remaining directors theretofore elected by the holders of
the class of stock which elected the director whose office
shall have become vacant. References in this Paragraph (c)
to directors elected by the holders of a particular class of
stock shall include directors elected by such directors to
fill vacancies as provided in clause (y) of the foregoing
sentence.
(v) Immediately upon the expiration of a default period, (x)
the right of the holders of Preferred Stock as a class to
elect directors shall cease, (y) the term of any directors
elected by the holders of Preferred Stock as a class shall
terminate, and (z) the number of directors shall be such
number as may be provided for in the Amended and Restated
Certificate of Incorporation or by-laws irrespective of any
increase made pursuant to the provisions of Paragraph
(c)(ii) of this Section 3 (such number being subject,
however, to change thereafter in any manner provided by law
or in the Amended and Restated Certificate of Incorporation
or by-laws). Any vacancies in the Board of Directors
effected by the provisions of clauses (y) and (z) in the
preceding sentence may be filled by a majority of the
remaining directors.
(d) Except as set forth herein, holders of Series C Junior
Participating Preferred Stock shall have no special voting
rights and their consent shall not be required (except to
the extent they are entitled to vote with holders of Common
Stock as set forth herein) for taking any corporate action.
4. Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or
distributions payable on the Series C Junior Participating
Preferred Stock as provided in Section 2 of this Article
4(C) are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared,
on shares of Series C Junior Participating Preferred Stock
outstanding shall have been paid in full, the Corporation
shall not:
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise
acquire for consideration any shares of stock ranking
junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series C Junior
Participating Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series C Junior
Participating Preferred Stock, except dividends paid
ratably on the Series C Junior Participating Preferred
Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total
amounts to which the holders of all such shares are
then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity
(either as to dividends or upon liquidation,
dissolution or winding up) with the Series C Junior
Participating Preferred Stock, provided that the
Corporation may at any time redeem, purchase or
otherwise acquire shares of any such parity stock in
exchange for shares of any stock of the Corporation
ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series C
Junior Participating Preferred Stock; or
(iv) purchase or otherwise acquire for consideration
any shares of Series C Junior Participating Preferred
Stock, or any shares of stock ranking on a parity with
the Series C Junior Participating Preferred Stock,
except in accordance with a purchase offer made in
writing or by publication (as determined by the Board
of Directors) to all holders of such shares upon such
terms as the Board of Directors, after consideration of
the respective annual dividend rates and other relative
rights and preferences of the respective series and
classes, shall determine in good faith will result in
fair and equitable treatment among the respective
series or classes.
(b) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for
consideration any shares of stock of the Corporation unless
the Corporation could, under Paragraph (a) of this Section 4
of this Article 4(C), purchase or otherwise acquire such
shares at such time and in such manner.
5. Reacquired Shares. Any shares of Series C Junior Participating
Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and
cancelled promptly after the acquisition thereof. All such shares
shall upon their cancellation become authorized but unissued
shares of Preferred Stock and may be reissued as part of a new
series of Preferred Stock to be created by resolution or
resolutions of the Board of Directors, subject to the conditions
and restrictions on issuance set forth herein.
6. Liquidation, Dissolution or Winding Up.
(a) Upon any liquidation (voluntary or otherwise),
dissolution or winding up of the Corporation, no
distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series C Junior
Participating Preferred Stock unless, prior thereto, the
holders of shares of Series C Junior Participating Preferred
Stock shall have received an amount equal to 1,000 times the
Purchase Price, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not
declared, to the date of such payment (the "Series C
Liquidation Preference"). Following the payment of the full
amount of the Series C Liquidation Preference, no additional
distributions shall be made to the holders of shares of
Series C Junior Participating Preferred Stock unless, prior
thereto, the holders of shares of Comdisco Stock shall have
received an amount per share (the "Comdisco Adjustment")
equal to the quotient obtained by dividing (i) the Series C
Liquidation Preference by (ii) 1,000 (as appropriately
adjusted as set forth in subparagraph (C) below to reflect
such events as stock splits, stock dividends and
recapitalizations with respect to the Comdisco Stock) (such
number in clause (ii), the "Comdisco Adjustment Number").
Following the payment of the full amount of the Series C
Liquidation Preference and the Comdisco Adjustment in
respect of all outstanding shares of Series C Junior
Participating Preferred Stock and Comdisco Stock,
respectively, holders of Series C Junior Participating
Preferred Stock and holders of shares of Comdisco Stock
shall receive their ratable and proportionate share of the
remaining assets to be distributed in the ratio of the
Comdisco Adjustment Number to 1 with respect to such
Preferred Stock and Comdisco Stock, on a per share basis,
respectively.
(b) In the event, however, that there are not sufficient
assets available to permit payment in full of the Series C
Liquidation Preference and the liquidation preferences of
all other series of preferred stock, if any, which rank on a
parity with the Series C Junior Participating Preferred
Stock, then such remaining assets shall be distributed
ratably to the holders of such parity shares in proportion
to their respective liquidation preferences. In the event,
however, that there are not sufficient assets available to
permit payment in full of the Comdisco Adjustment, then such
remaining assets shall be distributed ratably to the holders
of Comdisco Stock.
(c) In the event the Corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on Comdisco
Stock payable in shares of Comdisco Stock, (ii) subdivide
the outstanding Comdisco Stock, or (iii) combine the
outstanding Comdisco Stock into a smaller number of shares,
then in each such case the Comdisco Adjustment Number in
effect immediately prior to such event shall be adjusted by
multiplying such Comdisco Adjustment Number by a fraction
the numerator of which is the number of shares of Comdisco
Stock outstanding immediately after such event and the
denominator of which is the number of shares of Comdisco
Stock that were outstanding immediately prior to such event.
7. Consolidation, Merger, etc. Notwithstanding anything to the
contrary contained herein, in case the Corporation shall enter
into any consolidation, merger, combination or other transaction
in which the shares of Comdisco Stock are exchanged for or
changed into other stock or securities, cash and/or any other
property, then in any such case the shares of Series C Junior
Participating Preferred Stock shall at the same time be similarly
exchanged or changed in an amount per share (subject to the
provision for adjustment hereinafter set forth) equal to 1,000
times the aggregate amount of stock, securities, cash and/or any
other property (payable in kind), as the case may be, into which
or for which each share of Comdisco Stock is changed or
exchanged. In the event the Corporation shall at any time after
the Rights Declaration Date (i) declare any dividend on Comdisco
Stock payable in shares of Comdisco Stock, (ii) subdivide the
outstanding Comdisco Stock, or (iii) combine the outstanding
Comdisco Stock into a smaller number of shares, then in each such
case the amount set forth in the preceding sentence with respect
to the exchange or change of shares of Series C Junior
Participating Preferred Stock shall be adjusted by multiplying
such amount by a fraction the numerator of which is the number of
shares of Comdisco Stock outstanding immediately after such event
and the denominator of which is the number of shares of Comdisco
Stock that were outstanding immediately prior to such event.
8. No Redemption. The shares of Series C Junior Participating
Preferred Stock shall not be redeemable.
9. Amendment. The Amended and Restated Certificate of
Incorporation of the Corporation shall not be further amended in
any manner which would materially alter or change the powers,
preferences or special rights of the Series C Junior
Participating Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of a majority or more
of the outstanding shares of Series C Junior Participating
Preferred Stock, voting separately as a class.
10. Fractional Shares. Series C Junior Participating Preferred
Stock may be issued in fractions of a share which shall entitle
the holder, in proportion to such holders fractional shares, to
exercise voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights of
holders of Series C Junior Participating Preferred Stock.
D. Designation of Series D Junior Participating Preferred Stock
1. Designation and Amount. Two Hundred Thousand (200,000) of the
authorized and unissued shares of Preferred Stock are designated
as "Series D Junior Participating Preferred Stock." Such number
of shares may be increased or decreased by resolution of the
Board of Directors; provided, that no decrease shall reduce the
number of shares of Series D Preferred Stock to a number less
than the number of shares then outstanding plus the number of
shares reserved for issuance upon the exercise of outstanding
options, rights or warrants or upon the conversion of any
outstanding securities issued by the Corporation convertible into
Series D Junior Participating Preferred Stock.
2. Dividends and Distributions.
(a) The holders of shares of Series D Junior Participating
Preferred Stock shall be entitled to receive, when, as and
if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in
cash on the last day of March, June, September and December
in each year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of
a share or fraction of a share of Series D Junior
Participating Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (x)
$1.00 or (y) subject to the provision for adjustment
hereinafter set forth, 1,000 times the aggregate per share
amount of all cash dividends, and 1,000 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 Ventures Stock or a subdivision of the outstanding
shares of Ventures Stock (by reclassification or otherwise),
declared on the Ventures Stock of the Corporation since the
immediately preceding Quarterly Dividend Payment Date, or,
with respect to the first Quarterly Dividend Payment Date,
since the first issuance of any share or fraction of a share
of Series D Junior Participating Preferred Stock. In the
event the Corporation shall at any time after the date that
these Restated and Amended Articles of Incorporation become
effective (the "Rights Declaration Date") (i) declare any
dividend on Ventures Stock payable in shares of Ventures
Stock, (ii) subdivide the outstanding Ventures Stock, or
(iii) combine the outstanding Ventures Stock into a smaller
number of shares, then in each such case the amount to which
holders of shares of Series D Junior Participating Preferred
Stock were entitled immediately prior to 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 Ventures Stock outstanding
immediately after such event and the denominator of which is
the number of shares of Ventures Stock that were outstanding
immediately prior to such event.
(b) The Corporation shall declare a dividend or distribution
on the Series D Junior Participating Preferred Stock as
provided in Paragraph (y) above immediately after it
declares a dividend or distribution on the Ventures Stock
(other than a dividend payable in shares of Ventures Stock);
provided that, in the event no dividend or distribution
shall have been declared on the Ventures Stock during the
period between any Quarterly Dividend Payment Date and the
next subsequent Quarterly Dividend Payment Date, a dividend
of $0.01 per share on the Series D Junior Participating
Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series D Junior Participating
Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares of Series D
Junior Participating Preferred Stock, unless the date of
issue of such shares is prior to the record date for the
first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the
record date for the determination of holders of shares of
Series D Junior Participating Preferred Stock 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 Series D Junior Participating Preferred Stock in
an amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such
shares at the time outstanding.
The Board of Directors may fix a record date for the
determination of holders of shares of Series D Junior
Participating Preferred Stock entitled to receive payment of
a dividend or distribution declared thereon, which record
date shall be no more than 30 days prior to the date fixed
for the payment thereof.
3. Voting Rights. The holders of shares of Series D Junior
Participating Preferred Stock shall have the following
voting rights:
(a) Subject to the provision for adjustment hereinafter set
forth, each share of Series D Junior Participating Preferred
Stock shall entitle the holder thereof to the number of
votes on all matters submitted to a vote of the stockholders
of the Corporation equal to the product of (x) 1,000 and (y)
the number of votes then attributed to a share of Ventures
Stock. In the event the Corporation shall at any time after
the Rights Declaration Date (i) declare any dividend on
Ventures Stock payable in shares of Ventures Stock, (ii)
subdivide the outstanding Ventures Stock, or (iii) combine
the outstanding Ventures Stock into a smaller number of
shares, then in each such case the number of votes per share
to which holders of shares of Series D Junior Participating
Preferred Stock were entitled immediately prior to such
event shall be adjusted by multiplying such number by a
fraction the numerator of which is the number of shares of
Ventures Stock outstanding immediately after such event and
the denominator of which is the number of shares of Ventures
Stock that were outstanding immediately prior to such event.
(b) Except as otherwise provided herein or by law, the
holders of shares of Series D Junior Participating Preferred
Stock and the holders of shares of Ventures Stock shall vote
together as one class on all matters submitted to a vote of
stockholders of the Corporation.
(c) (i) If at any time dividends on any Series D Junior
Participating Preferred Stock shall be in arrears in an
amount equal to six (6) quarterly dividends thereon, the
occurrence of such contingency shall mark the beginning of a
period (herein called a "default period") which shall extend
until such time when all accrued and unpaid dividends for
all previous quarterly dividend periods and for the current
quarterly dividend period on all shares of Series D Junior
Participating Preferred Stock then outstanding shall have
been declared and paid or set apart for payment. During each
default period, all holders of Preferred Stock (including
holders of the Series D Junior Participating Preferred
Stock) with dividends in arrears in an amount equal to six
(6) quarterly dividends thereon, voting as a class,
irrespective of series, shall have the right to elect two
(2) directors.
(ii) During any default period, such voting right of the
holders of Series D Junior Participating Preferred Stock may
be exercised initially at a special meeting called pursuant
to subparagraph (iii) of this Section 3(c) of this Article
4(C) or at any annual meeting of stockholders, and
thereafter at annual meetings of stockholders, provided that
such voting right shall not be exercised unless the holders
of ten percent (10%) in number of shares of Preferred Stock
outstanding shall be present in person or by proxy. The
absence of a quorum of the holders of Common Stock shall not
affect the exercise by the holders of Preferred Stock of
such voting right. At any meeting at which the holders of
Preferred Stock shall exercise such voting right initially
during an existing default period, they shall have the
right, voting as a class, to elect directors to fill such
vacancies, if any, in the Board of Directors as may then
exist up to two (2) directors or, if such right is exercised
at an annual meeting, to elect two (2) directors. If the
number which may be so elected at any special meeting does
not amount to the required number, the holders of the
Preferred Stock shall have the right to make such increase
in the number of directors as shall be necessary to permit
the election by them of the required number. After the
holders of the Preferred Stock shall have exercised their
right to elect directors in any default period and during
the continuance of such period, the number of directors
shall not be increased or decreased except by vote of the
holders of Preferred Stock as herein provided or pursuant to
the rights of any equity securities ranking senior to or
pari passu with the Series D Junior Participating Preferred
Stock.
(iii) Unless the holders of Preferred Stock shall, during an
existing default period, have previously exercised their
right to elect directors, the Board of Directors may order,
or any stockholder or stockholders owning in the aggregate
not less than ten percent (10%) of the total number of
shares of Preferred Stock outstanding, irrespective of
series, may request, the calling of special meeting of the
holders of Preferred Stock, which meeting shall thereupon be
called by the President, a Vice-President or the Secretary
of the Corporation. Notice of such meeting and of any annual
meeting at which holders of Preferred Stock are entitled to
vote pursuant to this subparagraph (iii) shall be given to
each holder of record of Preferred Stock by mailing a copy
of such notice to him or her at his or her last address as
the same appears on the books of the Corporation. Such
meeting shall be called for a time not earlier than 20 days
and not later than 60 days after such order or request or in
default of the calling of such meeting within 60 days after
such order or request, such meeting may be called on similar
notice by any stockholder or stockholders owning in the
aggregate not less than ten percent (10%) of the total
number of shares of Preferred Stock outstanding.
Notwithstanding the provisions of this subparagraph (iii),
no such special meeting shall be called during the period
within 60 days immediately preceding the date fixed for the
next annual meeting of the stockholders.
(iv) In any default period, the holders of Common Stock, and
other classes of stock of the Corporation if applicable,
shall continue to be entitled to elect the whole number of
directors until the holders of Preferred Stock shall have
exercised their right to elect two (2) directors voting as a
class, after the exercise of which right (x) the directors
so elected by the holders of Preferred Stock shall continue
in office until their successors shall have been elected by
such holders or until the expiration of the default period,
and (y) any vacancy in the Board of Directors may (except as
provided in Paragraph (ii) of this Section 3(c) of this
Article 4(D)) be filled by vote of a majority of the
remaining directors theretofore elected by the holders of
the class of stock which elected the director whose office
shall have become vacant. References in this Paragraph (c)
to directors elected by the holders of a particular class of
stock shall include directors elected by such directors to
fill vacancies as provided in clause (y) of the foregoing
sentence.
(v) Immediately upon the expiration of a default period, (x)
the right of the holders of Preferred Stock as a class to
elect directors shall cease, (y) the term of any directors
elected by the holders of Preferred Stock as a class shall
terminate, and (z) the number of directors shall be such
number as may be provided for in the Amended and Restated
Certificate of Incorporation or by-laws irrespective of any
increase made pursuant to the provisions of Paragraph (ii)
of this Section 3 of this Article 4(D) (such number being
subject, however, to change thereafter in any manner
provided by law or in the Amended and Restated Certificate
of Incorporation or by-laws). Any vacancies in the Board of
Directors effected by the provisions of clauses (y) and (z)
in the preceding sentence may be filled by a majority of the
remaining directors.
(d) Except as set forth herein, holders of Series D Junior
Participating Preferred Stock shall have no special voting
rights and their consent shall not be required (except to
the extent they are entitled to vote with holders of Common
Stock as set forth herein) for taking any corporate action.
4. Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or
distributions payable on the Series D Junior Participating
Preferred Stock as provided in Section 2 of this Article
4(D) are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared,
on shares of Series D Junior Participating Preferred Stock
outstanding shall have been paid in full, the Corporation
shall not:
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise
acquire for consideration any shares of stock ranking
junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series D Junior
Participating Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series D Junior
Participating Preferred Stock, except dividends paid
ratably on the Series D Junior Participating Preferred
Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total
amounts to which the holders of all such shares are
then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity
(either as to dividends or upon liquidation,
dissolution or winding up) with the Series D Junior
Participating Preferred Stock, provided that the
Corporation may at any time redeem, purchase or
otherwise acquire shares of any such parity stock in
exchange for shares of any stock of the Corporation
ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series D
Junior Participating Preferred Stock; or
(iv) purchase or otherwise acquire for consideration
any shares of Series D Junior Participating Preferred
Stock, or any shares of stock ranking on a parity with
the Series D Junior Participating Preferred Stock,
except in accordance with a purchase offer made in
writing or by publication (as determined by the Board
of Directors) to all holders of such shares upon such
terms as the Board of Directors, after consideration of
the respective annual dividend rates and other relative
rights and preferences of the respective series and
classes, shall determine in good faith will result in
fair and equitable treatment among the respective
series or classes.
(b) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for
consideration any shares of stock of the Corporation unless
the Corporation could, under Paragraph (a) of this Section 4
of this Article 4(D), purchase or otherwise acquire such
shares at such time and in such manner.
5. Reacquired Shares. Any shares of Series D Junior Participating
Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and
cancelled promptly after the acquisition thereof. All such shares
shall upon their cancellation become authorized but unissued
shares of Preferred Stock and may be reissued as part of a new
series of Preferred Stock to be created by resolution or
resolutions of the Board of Directors, subject to the conditions
and restrictions on issuance set forth herein.
6. Liquidation, Dissolution or Winding Up.
(a) Upon any liquidation (voluntary or otherwise),
dissolution or winding up of the Corporation, no
distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series D Junior
Participating Preferred Stock unless, prior thereto, the
holders of shares of Series D Junior Participating Preferred
Stock shall have received an amount equal to 1,000 times the
Purchase Price, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not
declared, to the date of such payment (the "Series D
Liquidation Preference"). Following the payment of the full
amount of the Series D Liquidation Preference, no additional
distributions shall be made to the holders of shares of
Series D Junior Participating Preferred Stock unless, prior
thereto, the holders of shares of Ventures Stock shall have
received an amount per share (the "Ventures Adjustment")
equal to the quotient obtained by dividing (i) the Series D
Liquidation Preference by (ii) 1,000 (as appropriately
adjusted as set forth in subparagraph (c) below to reflect
such events as stock splits, stock dividends and
recapitalizations with respect to the Ventures Stock) (such
number in clause (ii), the "Ventures Adjustment Number").
Following the payment of the full amount of the Series D
Liquidation Preference and the Ventures Adjustment in
respect of all outstanding shares of Series D Junior
Participating Preferred Stock and Ventures Stock,
respectively, holders of Series D Junior Participating
Preferred Stock and holders of shares of Ventures Stock
shall receive their ratable and proportionate share of the
remaining assets to be distributed in the ratio of the
Ventures Adjustment Number to 1 with respect to such
Preferred Stock and Ventures Stock, on a per share basis,
respectively.
(b) In the event, however, that there are not sufficient
assets available to permit payment in full of the Series D
Liquidation Preference and the liquidation preferences of
all other series of preferred stock, if any, which rank on a
parity with the Series D Junior Participating Preferred
Stock, then such remaining assets shall be distributed
ratably to the holders of such parity shares in proportion
to their respective liquidation preferences. In the event,
however, that there are not sufficient assets available to
permit payment in full of the Ventures Adjustment, then such
remaining assets shall be distributed ratably to the holders
of Ventures Stock.
(c) In the event the Corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on Ventures
Stock payable in shares of Ventures Stock, (ii) subdivide
the outstanding Ventures Stock, or (iii) combine the
outstanding Ventures Stock into a smaller number of shares,
then in each such case the Ventures Adjustment Number in
effect immediately prior to such event shall be adjusted by
multiplying such Ventures Adjustment Number by a fraction
the numerator of which is the number of shares of Ventures
Stock outstanding immediately after such event and the
denominator of which is the number of shares of Ventures
Stock that were outstanding immediately prior to such event.
7. Consolidation, Merger, etc. Notwithstanding anything to the
contrary contained herein, in case the Corporation shall enter
into any consolidation, merger, combination or other transaction
in which the shares of Ventures Stock are exchanged for or
changed into other stock or securities, cash and/or any other
property, then in any such case the shares of Series D Junior
Participating Preferred Stock shall at the same time be similarly
exchanged or changed in an amount per share (subject to the
provision for adjustment hereinafter set forth) equal to 1,000
times the aggregate amount of stock, securities, cash and/or any
other property (payable in kind), as the case may be, into which
or for which each share of Ventures Stock is changed or
exchanged. In the event the Corporation shall at any time after
the Rights Declaration Date (i) declare any dividend on Ventures
Stock payable in shares of Ventures Stock, (ii) subdivide the
outstanding Ventures Stock, or (iii) combine the outstanding
Ventures Stock into a smaller number of shares, then in each such
case the amount set forth in the preceding sentence with respect
to the exchange or change of shares of Series D Junior
Participating Preferred Stock shall be adjusted by multiplying
such amount by a fraction the numerator of which is the number of
shares of Ventures Stock outstanding immediately after such event
and the denominator of which is the number of shares of Ventures
Stock that were outstanding immediately prior to such event.
8. No Redemption. The shares of Series D Junior Participating
Preferred Stock shall not be redeemable.
9. Amendment. The Amended and Restated Certificate of
Incorporation of the Corporation shall not be further amended in
any manner which would materially alter or change the powers,
preferences or special rights of the Series D Junior
Participating Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of a majority or more
of the outstanding shares of Series D Junior Participating
Preferred Stock, voting separately as a class.
10. Fractional Shares. Series D Junior Participating Preferred
Stock may be issued in fractions of a share which shall entitle
the holder, in proportion to such holders fractional shares, to
exercise voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights of
holders of Series D Junior Participating Preferred Stock.
5. The name and mailing address of each incorporator is as follows:
Name Mailing Address
B.J. Consono 1209 Orange Street
Wilmington, Delaware 19899
F.J. Obara, Jr. 1209 Orange Street
Wilmington, Delaware 19899
J.L. Rivera 1209 Orange Street
Wilmington, Delaware 19899
6. The Corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by statute,
the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the Corporation.
To authorize and cause to be executed mortgages and liens upon the
real and personal property of the Corporation.
To set apart out of any of the funds of the Corporation available for
dividends a reserve or reserves for any proper purpose and to abolish
any such reserve in the manner in which it was created.
By a majority of the whole board, to designate one or more committees,
each committee to consist of one or more of the directors of the
Corporation. The board may designate one or more directors as
alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. The by-laws may
provide that in the absence or disqualification of a member of a
committee, the member or members thereof present at any meeting and
not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the board of
directors to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in the
resolution of the board of directors, or in the by-laws of the
Corporation, shall have and may exercise all the powers and authority
of the board of directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; but no
such committee shall have the power or authority in reference to
amending the Amended and Restated Certificate of Incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all
of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the by-laws of the Corporation; and, unless
the resolution or by-laws expressly so provide, no such committee
shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
When and as authorized by the stockholders in accordance with statute,
to sell, lease or exchange all or substantially all of the property
and assets of the Corporation, including its good will and its
corporate franchises, upon such terms and conditions and for such
consideration, which may consist in whole or in part of money or
property including shares of stock in, and/or other securities of, any
other corporation or corporations, as its board of directors shall
deem expedient and for the best interest of the Corporation.
8. Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of
equitable jurisdiction within the State of Delaware may, on the application
in a summary way of this corporation or of any creditor or stockholder
thereof, or on the application of any receiver or receivers appointed for
this corporation under the provisions of section 291 of Title 8 of the
General Corporation Law of the State of Delaware or on the application of
trustees in dissolution or of any receiver or receivers appointed for this
Corporation under the provisions of section 279 of Title 8 of the General
Corporation Law of the State of Delaware order a meeting of the creditors
or class of creditors, and/or of the stockholders or class of stockholders
of this Corporation, as the case may be, to be summoned in such manner as
the said court directs. If a majority in number representing three-fourths
in value of the creditors or class of creditors, and/or of the stockholders
or class of stockholders of this Corporation, as the case may be, agree to
any compromise or arrangement and to any reorganization of this Corporation
as a consequence of such compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by the court
to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
9. Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws may provide. The books of the Corporation may be
kept (subject to any provision contained in the statutes) outside the State
of Delaware at such place or places as may be designated from time to time
by the board of directors or in the by-laws of the corporation. Elections
of directors need not to be by written ballot unless the by-laws of the
corporation shall so provide.
10. Except as expressly provided in this Amended and Restated Articles of
Incorporation, the Corporation reserves the right to amend, alter, change
or repeal any provision contained in this Amended and Restated Articles of
Incorporation, in the manner now or hereafter prescribed by statute, and
all rights conferred upon stockholders herein are granted subject to this
reservation.
11. The number of directors which shall constitute the
whole board shall be not less than four nor more than
fifteen, such number to be set by or in accordance
with the by-laws. Such by-law provision can only be
amended by the Board of Directors or by the
affirmative vote of not less than 66 2/3% of the
stock then entitled to vote in an election of
directors. The directors shall be divided into three
classes as nearly equal in number as possible. At the
1986 annual meeting of stockholders, one class of
directors was elected for a one-year term, one class
for a two-year term and one class for a three-year
term. At each succeeding annual meeting of
stockholders, successors to the class of directors
whose term expires in that year will be elected for a
three-year term. A director shall hold office until
the annual meeting of stockholders for the year in
which his term expires or until his successor is
elected and qualified.
Vacancies and newly created directorships within any class resulting from
any increase in the authorized number of directors may be filled by a
majority of directors then in office, though less than a quorum, and any
director so chosen shall hold office for a term which shall coincide with
the term of such class to which he is elected. If there are no directors in
office, then an election of directors may be held in the manner provided by
statute.
The affirmative vote of the holders of at least 66 2/3% of the stock then
entitled to vote in an election of directors shall be required for the
approval of any proposal that (a) any director of the corporation be
removed from office for cause; or (b) this Article 11 of this Amended and
Restated Certificate of Incorporation be altered, amended or repealed.
12. A. In addition to the requirements of any applicable statute, the
affirmative vote of not less than 66 2/3% of the stock then entitled to
vote in an election of directors owned by persons other than a "substantial
stockholder" (as hereinafter defined), considered for purposes of this
Article 12 as one class, shall be required for the approval or
authorization of any "business combination" (as hereinafter defined)
between the corporation and any substantial stockholders provided, however,
that such additional voting requirement shall not be applicable if:
1. The business combination is solely between the Corporation and
another corporation, 50% or more of the voting stock of which is owned
by the Corporation and none of which is owned by a substantial
stockholder and each holder of common stock of the Corporation
receives the same type of consideration in proportion to his holdings;
or
2. All the following conditions are satisfied: (a) the cash or fair
market value of the property, securities or "other consideration to be
received" (as hereinafter defined) per share in the business
combination by holders of the common stock of the corporation is not
less than the higher of (i) the highest price per share (including
brokerage commissions, soliciting dealers' fees and dealer-manager
compensation) paid by such substantial stockholder in acquiring any of
its holdings of the Corporation's common stock, or (ii) the highest
per share market price of common stock during the three-month period
immediately preceding the date of the proxy statement described in (c)
below or, if none, during the six-month period prior to the
consummation of the business combination; (b) after becoming a
substantial stockholder and prior to the consummation of such business
combination (i) such substantial stockholder shall not have acquired
any newly issued shares of capital stock, directly or indirectly, from
the Corporation (except upon conversion of convertible securities
acquired by it prior to becoming a substantial stockholder or upon
compliance with the provisions of this Article 12 or as a result of a
pro rata stock dividend or stock split), and (ii) such substantial
stockholder shall not have received the benefit, directly or
indirectly (except proportionately as a stockholder), of any loans,
advances, guarantees, pledges or other financial assistance or tax
credits provided by the Corporation, or made any major changes in the
Corporation's business or equity capital structure; and (c) if such
proposal otherwise requires stockholder approval, a proxy statement
responsive to the requirements of the Securities Exchange Act of 1934,
whether or not the Corporation is then subject to such requirements,
shall be mailed to the public stockholders of the Corporation for the
purpose of soliciting stockholder approval of such business
combination.
B. For the purposes of this Article 12:
1. The term "business combination" shall mean (a) any merger or
consolidation of the Corporation with or into a substantial
stockholder, (b) any sale, lease, exchange, transfer or other
disposition, including, without limitation, a mortgage or any other
security device, of all, or any "substantial part" (as hereinafter
defined) of the assets of the Corporation including, without
limitation, any voting securities of a subsidiary) or of a subsidiary,
to a substantial stockholder, (c) any merger or consolidation of a
substantial stockholder with or into the Corporation or a subsidiary
of the Corporation, (d) any sale, lease, exchange, transfer or other
disposition of all or any substantial part of the assets of a
substantial stockholder to the Corporation or a subsidiary of the
Corporation, (e) the issuance of any securities of the Corporation or
a subsidiary of the Corporation to a substantial stockholder (except
proportionately as a stockholder), (f) the acquisition by the
Corporation or a subsidiary of the Corporation of any securities of a
substantial stockholder (except proportionately as a stockholder), (g)
any reclassification of common stock of the Corporation, or any
recapitalization involving common stock of the Corporation,
consummated within five years after a substantial stockholder becomes
a substantial stockholder, and (h) any agreement, contract or other
arrangement providing for any of the transactions described in this
definition of business combination;
2. The term "substantial stockholder" shall mean and include any
individual, corporation, partnership, "group" or other person or
entity which, together with its "affiliates" and "associates",
"beneficially" owns (as those terms are defined on the date on which
this provision was adopted in Rules 12b-2, 13d-3 and 13d-5(b) of the
General Rules and Regulations under the Securities Exchange Act of
1934) in the aggregate 10% or more of the outstanding shares of common
stock of the Corporation, and any affiliate or associate of any such
individual, corporation, partnership, group or other person or entity
excluding, however, any incumbent members of the Board of Directors as
of September 30, 1985 and any employee benefit plan of the corporation
or its subsidiaries;
3. The term "substantial part" shall mean more than 10% of the total
book value of assets of the corporation in question, as of the end of
its most recent fiscal year ending prior to the time the determination
is being made;
4. Without limitation, any shares of common stock of the Corporation
which any substantial stockholder has the right to acquire at any time
pursuant to any agreement, or upon exercise of conversion rights,
warrants, options, or otherwise, shall be deemed outstanding and
beneficially owned by such substantial stockholder for purposes of
this Article 12 only; and
5. The phrase "other consideration to be received" shall include,
without limitation, common stock of the corporation retained by its
existing stockholders other than a substantial stockholder in the
event of a business combination with such substantial stockholder in
which the corporation is the surviving corporation.
C. The provisions set forth in this Article 12 may not be repealed or
amended in any respect or in any manner including through any merger or
consolidation of the corporation with any other corporation unless the
surviving corporation's Certificate of Incorporation contains an article to
the same effect as this Article 12, except by the affirmative vote of the
holders of not less than 66 2/3% of the stock then entitled to vote in an
election of directors, subject to the provisions of any series of preferred
stock which may at any time be outstanding; provided, however, that if
there is a substantial stockholder such action must be approved by not less
than 66 2/3% of the stock then entitled to vote in an election of directors
owned by persons other than the substantial stockholder.
13. A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director to the fullest extent permitted by the General
Corporation Law of the State of Delaware, as the same exists or may
hereafter be amended, except for liability (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the General
Corporation Law of the State of Delaware, or (iv) for any transaction from
which the director derived any improper personal benefit. Any repeal or
modification hereof by the stockholders of the Corporation shall not
adversely affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification.
IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated
Certificate of Incorporation to be executed as of this 20th day of April, 2000.
COMDISCO, INC.
By:/s/ Philip A. Hewes
Philip A. Hewes,
Senior Vice President
and Secretary
<PAGE>
1042324 v5
Execution Copy: May 4, 2000
B-1-8
EXHIBIT B-1
[Form of Rights Certificate]
Certificate No. CGR- _______ Rights
NOT EXERCISABLE AFTER NOVEMBER 17, 2007 OR EARLIER IF REDEEMED BY THE COMPANY.
THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER
RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON OR AN ADVERSE
PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT
HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID.[THE RIGHTS REPRESENTED BY THIS
RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME
AN ACQUIRING PERSON OR ADVERSE PERSON OR AN AFFILIATE OR ASSOCIATE OF AN
ACQUIRING PERSON OR ADVERSE PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS
AGREEMENT).ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED
HEREBY MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e)
OF SUCH AGREEMENT.]
(1) --------------1 The portion of the legend in brackets shall be inserted only
if applicable and shall replace the preceding sentence.
Comdisco Stock Rights Certificate
COMDISCO, INC.
This certifies that _________________, or registered assigns, is the
registered holder of the number of Rights set forth above, each of which
entitles the owner thereof, subject to the terms, provisions and conditions of
the Amended and Restated Rights Agreement, dated as of May 4, 2000 (the "Rights
Agreement"), between COMDISCO, INC., a Delaware corporation (the "Company"), and
ChaseMellon Shareholder Services, L.L.C., a New Jersey limited liability company
(the "Rights Agent"), to purchase from the Company at any time prior to 5:00 PM
(New York City time) on November 17, 2007, at the office or offices of the
Rights Agent designated for such purpose, or its successors as Rights Agent, one
one-thousandth of a fully-paid, nonassessable share of Series C Junior
Participating Preferred Stock (the "Preferred Stock") of the Company, at a
purchase price of $___ per one one-thousandth of a share (the "Purchase Price"),
upon presentation and surrender of this Rights Certificate with the Form of
Election to Purchase set forth on the reverse hereof and the Certificate
contained therein duly executed. The Purchase Price shall be paid in cash. 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 of Rights number and Purchase
Price as of _____________, 200__, based on the Preferred Stock as constituted at
such date, and are subject to adjustment upon the happening of certain events as
provided in the Rights Agreement. The Company reserves the right to require
prior to 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 Event (as such term is defined in
the Rights Agreement), if the Rights evidenced by this Rights Certificate are
beneficially owned by (i) an Acquiring Person or Adverse Person or an Affiliate
or Associate of any such Acquiring Person or Adverse Person (as such terms are
defined in the Rights Agreement), (ii) a transferee of any such Acquiring
Person, Adverse Person, Associate or Affiliate, or (iii) under certain
circumstances specified in the Rights Agreement, a transferee of a person who,
concurrently with or after such transfer, became an Acquiring Person, Adverse
Person or an Affiliate or Associate of an Acquiring Person or Adverse Person,
such Rights shall become null and void and no holder hereof shall have any
rights whatsoever with respect to such Rights from and after the occurrence of
such Section 11 Event.
This Rights Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Rights Certificates, which
limitations of rights include the temporary suspension of the exercisability of
such Rights under the specific circumstances set forth in the Rights Agreement.
Copies of the Rights Agreement are on file at the 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 Certificates,
upon surrender at the office or offices of the Rights Agent designated for such
purpose, may be exchanged for another Rights Certificate or Rights Certificates
of like tenor and date evidencing Rights entitling the holder to purchase a like
aggregate number of one one-thousandths 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 Certificates representing the number of whole
Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced
by this Certificate may be redeemed by the Company at its option at a redemption
price of $0.01 per Right at any time prior to the earlier of the Close of
Business on (i) the fifteenth day following the Stock Acquisition Date (as such
time period may be extended or shortened pursuant to the Rights Agreement) or
(ii) the Final Expiration Date. In addition, the Rights may be exchanged, in
whole or in part, for shares of Common Stock, or shares of preferred stock of
the Company having essentially the same value or economic rights as such shares.
Immediately upon the action of the Board of Directors of the Company authorizing
any such exchange, and without any further action or any notice, the Rights
(other than Rights which are not subject to such exchange) will terminate and
the Rights will only enable holders to receive the shares issuable upon such
exchange.
No fractional shares of 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-thousandth of a share of Preferred Stock, which
may, at the election of the Company, be evidenced by depositary receipts), but
in lieu thereof a cash payment will be made, as provided in the Rights
Agreement.
No holder, as such, of this Rights Certificate shall be entitled to
vote or receive dividends or be deemed for any purpose the holder of the shares
of 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 be 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
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders (except as
provided in the Rights Agreement), or to receive dividends or 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 _____________, 200_
ATTEST: COMDISCO, INC.
________________________ By________________________
Secretary Title:
Countersigned:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
By___________________________________
Authorized Signature
<PAGE>
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to
transfer the Rights Certificate.)
Please print social security or other identifying number of the transferor:
____________________
FOR VALUE RECEIVED, _______________________ hereby sells, assigns and transfers
unto:
---------------------------------------------
(Please print name and address of transferee)
---------------------------------------------
(Please print social security or other
identifying number of the transferee)
this Rights Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint _____________________
Attorney, to transfer the within Rights Certificate on the books of the
within-named Company, with full power of substitution.
Dated: __________________, 200_
---------------------------
Signature
Signature Guaranteed:__________________________
<PAGE>
Certificate
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) this Rights Certificate [ ] is [ ] is not being sold, assigned and
transferred by or on behalf of a Person who is or was an Acquiring Person,
Adverse Person or an Affiliate or Associate of any such Acquiring Person or
Adverse Person (as such terms are defined in the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate from
any Person who is, was or subsequently became an Acquiring Person, Adverse
Person or an Affiliate or Associate of any such Acquiring Person or Adverse
Person.
Dated: _________________, 200_ _________________________ Signature
Signature Guaranteed:________________________
<PAGE>
NOTICE
The signatures to the foregoing Assignment and Certificate must
correspond to the name as written upon the face of this Rights Certificate in
every particular, without alteration or enlargement or any change whatsoever.
FORM OF ELECTION TO PURCHASE
(To be executed if the registered holder desires to exercise Rights
represented by the Rights Certificate.)
To: COMDISCO, INC.
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 print name and address)
------------------------------------------
(Please print social security or other
identifying number)
If such number of Rights shall not be all the Rights evidenced by this
Rights Certificate, a new Rights Certificate for the balance of such Rights
shall be registered in the name of and delivered to:
__________________________________________(Please print name and address)
------------------------------------------
(Please print social security or other identifying number)
Dated: _______________, 200_
-----------------------
Signature
Signature Guaranteed:__________________________
Certificate
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) the Rights evidenced by this Rights Certificate [ ] are [ ] are not
being exercised by or on behalf of a Person who is or was an Acquiring Person,
Adverse Person or an Affiliate or Associate of any such Acquiring Person or
Adverse Person (as such terms are defined in the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate from
any Person who is, was or subsequently became an Acquiring Person, Adverse
Person or an Affiliate or Associate of any such Acquiring Person or Adverse.
Dated: _________________, 200_ _________________________
Signature
Signature Guaranteed:________________________
<PAGE>
NOTICE
The signatures to the foregoing Assignment and Certificate must
correspond to the name as written upon the face of this Rights Certificate in
every particular, without alteration or enlargement or any change whatsoever.
<PAGE>
1042324 v5
Execution Copy: May 4, 2000
B-2-8
EXHIBIT B-2
[Form of Rights Certificate]
Certificate No. CDOVR- _______ Rights
NOT EXERCISABLE AFTER NOVEMBER 17, 2007 OR EARLIER IF REDEEMED BY THE COMPANY.
THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER
RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON OR AN ADVERSE
PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT
HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID.[THE RIGHTS REPRESENTED BY THIS
RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME
AN ACQUIRING PERSON OR ADVERSE PERSON OR AN AFFILIATE OR ASSOCIATE OF AN
ACQUIRING PERSON OR ADVERSE PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS
AGREEMENT).ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY
MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF SUCH
AGREEMENT.]
(1) --------------1 The portion of the legend in brackets shall be inserted only
if applicable and shall replace the preceding sentence.
Comdisco Ventures Rights Certificate
COMDISCO, INC.
This certifies that _________________, or registered assigns, is the
registered holder of the number of Rights set forth above, each of which
entitles the owner thereof, subject to the terms, provisions and conditions of
the Amended and Restated Rights Agreement, dated as of May 4, 2000 (the "Rights
Agreement"), between COMDISCO, INC., a Delaware corporation (the "Company"), and
ChaseMellon Shareholder Services, L.L.C., a New Jersey limited liability company
(the "Rights Agent"), to purchase from the Company at any time prior to 5:00 PM
(New York City time) on November 17, 2007, at the office or offices of the
Rights Agent designated for such purpose, or its successors as Rights Agent, one
one-thousandth of a fully-paid, nonassessable share of Series D Junior
Participating Preferred Stock (the "Preferred Stock") of the Company, at a
purchase price of $___ per one one-thousandth of a share (the "Purchase Price"),
upon presentation and surrender of this Rights Certificate with the Form of
Election to Purchase set forth on the reverse hereof and the Certificate
contained therein duly executed. The Purchase Price shall be paid in cash. 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 of Rights number and Purchase
Price as of _____________, 200__, based on the Preferred Stock as constituted at
such date, and are subject to adjustment upon the happening of certain events as
provided in the Rights Agreement. The Company reserves the right to require
prior to 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 Event (as such term is defined in
the Rights Agreement), if the Rights evidenced by this Rights Certificate are
beneficially owned by (i) an Acquiring Person or Adverse Person or an Affiliate
or Associate of any such Acquiring Person or Adverse Person (as such terms are
defined in the Rights Agreement), (ii) a transferee of any such Acquiring
Person, Adverse Person, Associate or Affiliate, or (iii) under certain
circumstances specified in the Rights Agreement, a transferee of a person who,
concurrently with or after such transfer, became an Acquiring Person, Adverse
Person or an Affiliate or Associate of an Acquiring Person or Adverse Person,
such Rights shall become null and void and no holder hereof shall have any
rights whatsoever with respect to such Rights from and after the occurrence of
such Section 11 Event.
This Rights Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Rights Certificates, which
limitations of rights include the temporary suspension of the exercisability of
such Rights under the specific circumstances set forth in the Rights Agreement.
Copies of the Rights Agreement are on file at the 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 Certificates,
upon surrender at the office or offices of the Rights Agent designated for such
purpose, may be exchanged for another Rights Certificate or Rights Certificates
of like tenor and date evidencing Rights entitling the holder to purchase a like
aggregate number of one one-thousandths 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 Certificates representing the number of whole
Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced
by this Certificate may be redeemed by the Company at its option at a redemption
price of $0.01 per Right at any time prior to the earlier of the Close of
Business on (i) the fifteenth day following the Stock Acquisition Date (as such
time period may be extended or shortened pursuant to the Rights Agreement) or
(ii) the Final Expiration Date. In addition, the Rights may be exchanged, in
whole or in part, for shares of Common Stock, or shares of preferred stock of
the Company having essentially the same value or economic rights as such shares.
Immediately upon the action of the Board of Directors of the Company authorizing
any such exchange, and without any further action or any notice, the Rights
(other than Rights which are not subject to such exchange) will terminate and
the Rights will only enable holders to receive the shares issuable upon such
exchange.
No fractional shares of 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-thousandth of a share of Preferred Stock, which
may, at the election of the Company, be evidenced by depositary receipts), but
in lieu thereof a cash payment will be made, as provided in the Rights
Agreement.
No holder, as such, of this Rights Certificate shall be entitled to
vote or receive dividends or be deemed for any purpose the holder of the shares
of 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 be 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
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders (except as
provided in the Rights Agreement), or to receive dividends or 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 _____________, 200_
ATTEST: COMDISCO, INC.
________________________ By________________________
Secretary Title:
Countersigned:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
By___________________________________
Authorized Signature
<PAGE>
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to
transfer the Rights Certificate.)
Please print social security or other identifying number of the transferor:
____________________
FOR VALUE RECEIVED, _______________________ hereby sells, assigns and transfers
unto:
---------------------------------------------
(Please print name and address of transferee)
---------------------------------------------
(Please print social security or other
identifying number of the transferee)
this Rights Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint _____________________
Attorney, to transfer the within Rights Certificate on the books of the
within-named Company, with full power of substitution.
Dated: __________________, 200_
---------------------------
Signature
Signature Guaranteed:__________________________
<PAGE>
Certificate
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) this Rights Certificate [ ] is [ ] is not being sold, assigned and
transferred by or on behalf of a Person who is or was an Acquiring Person,
Adverse Person or an Affiliate or Associate of any such Acquiring Person or
Adverse Person (as such terms are defined in the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate from
any Person who is, was or subsequently became an Acquiring Person, Adverse
Person or an Affiliate or Associate of any such Acquiring Person or Adverse
Person.
Dated: _________________, 200_ _________________________ Signature
Signature Guaranteed:________________________
<PAGE>
NOTICE
The signatures to the foregoing Assignment and Certificate must
correspond to the name as written upon the face of this Rights Certificate in
every particular, without alteration or enlargement or any change whatsoever.
FORM OF ELECTION TO PURCHASE
(To be executed if the registered holder desires to exercise Rights
represented by the Rights Certificate.)
To: COMDISCO, INC.
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 print name and address)
------------------------------------------
(Please print social security or other
identifying number)
If such number of Rights shall not be all the Rights evidenced by this
Rights Certificate, a new Rights Certificate for the balance of such Rights
shall be registered in the name of and delivered to:
__________________________________________(Please print name and address)
------------------------------------------
(Please print social security or other identifying number)
Dated: _______________, 200_
-----------------------
Signature
Signature Guaranteed:__________________________
<PAGE>
Certificate
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) the Rights evidenced by this Rights Certificate [ ] are [ ] are not
being exercised by or on behalf of a Person who is or was an Acquiring Person,
Adverse Person or an Affiliate or Associate of any such Acquiring Person or
Adverse Person (as such terms are defined in the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate from
any Person who is, was or subsequently became an Acquiring Person, Adverse
Person or an Affiliate or Associate of any such Acquiring Person or Adverse.
Dated: _________________, 200_ _________________________
Signature
Signature Guaranteed:________________________
<PAGE>
NOTICE
The signatures to the foregoing Assignment and Certificate must
correspond to the name as written upon the face of this Rights Certificate in
every particular, without alteration or enlargement or any change whatsoever.
