SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
THE SECURITIES EXCHANGE ACT OF 1934
HADCO CORPORATION
(Exact name of registrant as specified in its charter)
Massachusetts 04-2393279
(State of incorporation (IRS Employer
or organization) Identification No.)
12A Manor Parkway, Salem, New Hampshire 03079
(Address of principal executive offices) (Zip Code)
If this Form relates to the If this Form relates to the
registration of a class of registration of a class of
debt securities and is debt securities and is to
effective upon filing become effective
pursuant to General simultaneously with the
Instruction A(c)(1) please effectiveness of a concurrent
check the following box ___. registration statement under
the Securities Act of 1933
pursuant to General
Instruction A(c)(2) please
check the following box ___.
Securities to be registered pursuant to Section 12(b) of the
Act:
Title of each class Name of each exchange on
to be so registered which each class is to be
registered
None N/A
Securities to be registered pursuant to Section 12(g) of the
Act:
Common Stock Purchase Rights
(Title of Class)
<PAGE>
Item 1. Description of Registrant's Securities to be
Registered
On August 22, 1995, the Board of Directors of Hadco
Corporation (the "Company") declared a dividend distribution
of one Right for each outstanding share of Common Stock of
the Company to stockholders of record at the close of
business on September 11, 1995. Each Right entitles the
registered holder to initially purchase from the Company one
share of Common Stock at a purchase price of $130, subject
to adjustment (the "Purchase Price"). The description and
terms of the Rights are set forth in a Rights Agreement (the
"Rights Agreement") between the Company and The First
National Bank of Boston, as Rights Agent. The Rights
Agreement is attached hereto as Exhibit 1.
Initially, the Rights will be attached to all Common
Stock certificates representing shares then outstanding, and
no separate Rights Certificates will be distributed. The
Rights will separate from the Common Stock and a
Distribution Date will occur upon the earlier of (i) 10 days
following a public announcement that a person or group of
affiliated or associated persons (an "Acquiring Person") has
acquired, or obtained the right to acquire, beneficial
ownership of more than 20% (exempting shares of Horace H.
Irvine II, founder and currently Chairman of the Board of
the Company, and certain related persons and trusts) of the
outstanding shares of Common Stock (the "Stock Acquisition
Date"), (ii) 10 business days following the commencement of
a tender offer or exchange offer that may result in a person
or group beneficially owning 25% or more of such outstanding
shares of Common Stock or (iii) 10 business days after the
Continuing Directors (as defined below) 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 become the Beneficial Owner
of an amount of Common Stock which the Continuing Directors
determine to be substantial (which amount shall in no event
be less than 10% of the shares of Common Stock then
outstanding) and a majority of the Continuing Directors
(with the concurrence of a majority of the Independent
Directors (as defined below)) determines, after reasonable
inquiry and investigation, including consultation with such
persons as such directors shall deem appropriate, that
(a) such beneficial ownership by such person is intended to
cause the Company to repurchase the Common Stock
beneficially owned by such person or to cause pressure on
the Company to take action or enter into a transaction or
series of transactions intended to provide such person with
short-term financial gain under circumstances where such
directors determine that the best long-term interests of the
Company and its stockholders (taking into account any impact
on the national security of the United States or the impact
on any constituency which applicable law permits directors
to consider in discharging their fiduciary duty) 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.
Until the Distribution Date, (i) the Rights will be
evidenced by the Common Stock certificates and will be
transferred with and only with such Common Stock
certificates, (ii) new Common Stock certificates issued
after September 11, 1995 will contain a
<PAGE>
notation incorporating the Rights Agreement by reference and
(iii) the surrender for transfer of any certificates for
Common Stock outstanding will also constitute the transfer
of the Rights associated with the Common Stock represented
by such certificate. Pursuant to the Rights Agreement, the
Company reserves the right to require that, upon any
exercise of Rights, a number of Rights may be exercised so
that only whole shares of Common Stock will be issued.
The Rights are not exercisable until the Distribution
Date and will expire at the close of business on
September 11, 2005 unless earlier redeemed by the Company as
described below.
As soon as practicable after the Distribution Date,
Rights Certificates will be mailed to holders of record of
the Common Stock as of the close of business on the
Distribution Date and, thereafter, the separate Rights
Certificates alone will represent the Rights. Except as
otherwise determined by the Board of Directors and except in
connection with shares of Common Stock issued upon the
exercise of employee stock options, issuances under other
employee stock benefit plans or upon the conversion of
convertible securities issued hereafter, only shares of
Common Stock issued prior to the Distribution Date will be
issued with Rights.
In the event that the Continuing Directors determine that
a person is an Adverse Person or, at any time following the
Distribution Date, (i) the Company is the surviving
corporation in a merger with an Acquiring Person and its
Common Stock is not changed or exchanged, (ii) a Person
becomes the beneficial owner of more than 25% of the then
outstanding shares of Common Stock (except pursuant to an
offer for all outstanding shares of Common Stock which the
Independent Directors determine to be fair to and otherwise
in the best interests of the Company and its stockholders),
(iii) an Acquiring Person engages in one or more "self-
dealing" transactions as set forth in the Rights Agreement,
or (iv) during such time as there is an Acquiring Person, an
event occurs which results in such Acquiring Person's
ownership interest being increased by more than 1% (e.g., a
reverse stock split), each holder of a Right will thereafter
have the right to receive, upon exercise, Common Stock (or,
in certain circumstances, cash, property or other securities
of the Company) having a value equal to two times the
exercise price of the Right, or a majority of the Continuing
Directors may exchange one share of Common Stock for each
Right. However, Rights are not exercisable following the
occurrence of the events set forth in clauses (i) through
(iv) above until such time as the Rights are no longer
redeemable by the Company as set forth below.
Notwithstanding any of the foregoing, following the
occurrence of any of the events set forth in this paragraph,
all Rights that are, or (under certain circumstances
specified in the Rights Agreement) were, beneficially owned
by an Acquiring Person or an Adverse Person will be null and
void. The events set forth in this paragraph will be
referred to as "Section 11(a)(ii) Events."
In the event that, at any time following the Stock
Acquisition Date, (i) the Company is acquired in a merger or
other business combination transaction in which the Company
is not the surviving corporation (other than a merger
described in the second preceding paragraph or a merger
which follows an offer determined to be fair or otherwise in
the best interests of the Company and its stockholders
described in clause
<PAGE>
(ii) of the second preceding paragraph), or (ii) more than 50% of
the Company's assets or earning power is sold or transferred,
each holder of a Right (except Rights which previously have been
voided as set forth above) shall thereafter have the right to
receive, upon exercise, common stock of the acquiring company having
a value equal to two times the exercise price of the Right. The events
set forth in this paragraph and in the second preceding
paragraph are referred to as the "Triggering Events."
At any time after a person becomes an Acquiring Person or
an Adverse Person, a majority of the Continuing Directors
may exchange the Rights (other than Rights owned by an
Acquiring Person or Adverse Person which have become void),
in whole or in part, at an exchange ratio of one share of
Common Stock, or one Common Stock Equivalent (as defined in
the Rights Agreement, per Right (subject to adjustment).
The Purchase Price payable, and the number of shares of
Common Stock or other securities or property issuable, upon
exercise of the Rights are subject to adjustment from time
to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or
reclassification of, the Common Stock, (ii) if holders of
the Common Stock are granted certain rights or warrants to
subscribe for Common Stock or convertible securities at less
than the current market price of the Common Stock, or
(iii) upon the distribution to holders of the Common Stock
of evidences of indebtedness or assets (excluding regular
quarterly or other periodic cash dividends) or of
subscription rights or warrants (other than those referred
to above).
With certain exceptions, no adjustment in the Purchase
Price will be required until cumulative adjustments amount
to at least 1% of the Purchase Price. No fractional shares
of Common Stock will be issued and, in lieu thereof, an
adjustment in cash will be made based on the market price of
the Common Stock on the last trading date prior to the date
of exercise.
In general, the Company may redeem the Rights in whole,
but not in part, at any time until ten days following the
Stock Acquisition Date, at a price of $0.01 per Right
(payable in cash, Common Stock or other consideration deemed
appropriate by the Board of Directors). Under certain
circumstances set forth in the Rights Agreement, the
decision to redeem shall require the concurrence of a
majority of the Continuing Directors. The Company may not
redeem the Rights if the Continuing Directors have
previously declared a person to be an Adverse Person. After
the redemption period has expired, the Company's right of
redemption may be reinstated if either (i) an Acquiring
Person reduces its beneficial ownership to less than 10% of
the outstanding shares of Common Stock in a transaction or a
series of transactions not involving the Company or (ii) the
Board approves the merger of the Company with, or
acquisition of the Company by, a Person unrelated to the
Acquiring Person. Immediately upon the action of the Board
of Directors ordering redemption of the Rights, with, where
required, the concurrence of the Continuing Directors, the
Rights will terminate and the only right of the holders of
Rights will be to receive the $0.01 per Right redemption
price.
The term "Continuing Directors" means any member of the
Board of Directors of the Company who was a member of the
Board on the date of the Rights Agreement, and any person
who is subsequently elected to the Board if such person is
<PAGE>
recommended or approved by a majority of the Continuing
Directors, but shall not include an Acquiring Person, an
Adverse Person or an affiliate or associate of an Acquiring
Person or an Adverse Person, or any representative of the
foregoing entities. The term "Independent Directors" means
Continuing Directors who are not executive officers of the
Company.
Until a Right is exercised, the holder thereof, as such,
will have no rights as a stockholder of the Company,
including, without limitation, the right to vote or to
receive dividends. While the distribution of the Rights
will not be taxable to stockholders or to the Company,
stockholders may, depending upon the circumstances,
recognize taxable income in the event that the Rights become
exercisable for Common Stock (or other consideration) of the
Company or for common stock of the acquiring company as set
forth above.
Other than those provisions relating to the principal
economic terms of the Rights, any of the provisions of the
Rights Agreement may be amended by the Board of Directors of
the Company prior to the earlier to occur of the
determination that a person is an Adverse Person or the
Distribution Date. After the earlier of such events, the
provisions of the Rights Agreement may be amended by the
Board (in certain circumstances, with the concurrence of the
Continuing Directors) in order to cure any ambiguity, to
make changes which do not adversely affect the interests of
holders of Rights (excluding the interests of any Acquiring
Person or any Adverse Person), or to shorten or lengthen any
time period under the Rights Agreement; provided, however,
that no amendment to adjust the time period governing
redemption shall be made at such time as the Rights are not
redeemable.
Item 2. Exhibits
Exhibit No. Exhibit
1 Rights Agreement, dated as
of August 22, 1995, between Hadco
Corporation and The First National
Bank of Boston.
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, the Registrant has duly
caused this registration statement to be signed on its
behalf by the undersigned, thereto duly authorized.
HADCO CORPORATION
By: /s/Timothy P. Losik
Vice President and Chief
Financial Officer
Dated: August 22, 1995
EXHIBIT 1
<PAGE>
_________________________________________________________________
HADCO CORPORATION
and
THE FIRST NATIONAL BANK OF BOSTON
Rights Agent
__________
Rights Agreement
Dated as of August 22, 1995
________________________________________________________________
<PAGE>
Table of Contents
Section Page
1. Certain Definitions 1
2. Appointment of Rights Agent 6
3. Issue of Rights Certificates 6
4. Form of Rights Certificates 8
5. Countersignature and Registration 9
6. Transfer, Split Up, Combination and
Exchange of Rights Certificates;
Mutilated, Destroyed, Lost or Stolen
Rights Certificates 9
7. Exercise of Rights; Purchase Price;
Expiration Date of Rights 10
8. Cancellation and Destruction of
Rights Certificates 12
9. Reservation and Availability of
Common Stock 12
10. Common Stock Record Date 13
11. Adjustment of Purchase Price, Number
and Kind of Shares or Number of
Rights 14
12. Certificate of Adjusted Purchase
Price or Number of Shares 22
13. Consolidation, Merger or Sale or
Transfer of Assets or Earning Power 22
14. Fractional Rights and Fractional
Shares 24
15. Rights of Action 25
16. Agreement of Rights Holders 25
17. Rights Certificate Holder Not Deemed
a Stockholder 26
18. Concerning the Rights Agent 26
19. Merger or Consolidation or Change of
Name of Rights Agent 26
20. Duties of Rights Agent 27
21. Change of Rights Agent 29
22. Issuance of New Rights Certificates 30
23. Redemption and Termination 30
24. Notice of Certain Events 32
25. Notices 32
26. Exchange 33
27. Supplements and Amendments 34
28. Successors 35
29. Determination and Actions by the
Board of Directors, etc. 35
<PAGE>
30. Benefits of this Agreement 35
31. Severability 35
32. Governing Law 36
33. Counterparts 36
34. Descriptive Headings 36
Exhibit A -- Form of Rights Certificate
Exhibit B -- Form of Summary of Rights
<PAGE>
RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of August 22, 1995 (the
"Agreement"), between HADCO CORPORATION, a Massachusetts
corporation (the "Company"), and THE FIRST NATIONAL BANK OF
BOSTON, a national banking association, as Rights Agent (the
"Rights Agent").
WITNESSETH
WHEREAS, on August 22, 1995 (the "Rights Dividend Declaration
Date"), the Board of Directors of the Company (the "Board")
authorized and declared a dividend distribution of one Right for
each share of Common Stock (as hereinafter defined) of the
Company outstanding at the close of business on September 11,
1995 (the "Record Date"), and has authorized the issuance of one
Right (as such number may be hereinafter adjusted pursuant to
Section 11(a)(i) hereof) for each share of Common Stock of the
Company issued (whether originally issued or sold from the
Company's treasury) between the Record Date and the Distribution
Date, each Right initially representing the right to purchase one
share of Common Stock upon the terms and conditions hereinafter
set forth (the "Rights");
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as
follows:
Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall
be the Beneficial Owner of more than 20% of the shares of Common
Stock then outstanding, but shall not include the following
Persons (each individually called an "Exempt Person"): (i) the
Company or any Subsidiary of the Company, (ii) any employee
benefit plan of the Company or of any Subsidiary of the Company,
(iii) any Person or entity organized, appointed or established by
the Company for or pursuant to the terms of any such plan, or
(iv) Horace H. Irvine II, Andrea P. Irvine and John O. Irvine
(including any spouses of any of the foregoing Persons; any
lineal descendants, including children and adopted children, of
any of the foregoing Persons or of any of their spouses; and, in
addition to but not in limitation of the foregoing, any donees
that are blood relatives of any of the foregoing Persons or of
any of their spouses) and any or all of his or her or their
heirs, personal representative(s), trustee(s), executor(s),
administrator(s) and estates, as well as any trust created in the
past or future by or for the benefit of any or all of the
foregoing Persons referred to in this Section 1(a)(iv) (including
any trustees or successor trustees of any such trusts or any
successor trusts thereto), except that Horace H. Irvine II shall
not be deemed an Exempt Person at any time as he (not including
any of the other Persons referred to in this Section 1(a)(iv))
should acquire (except by reason of any inheritance or gift from
any Person, or by reason of any acquisition from any spouse
and/or child and/or sibling of his) the outstanding Beneficial
Ownership of an additional 1% or more of the outstanding Common
Stock of the Company
<PAGE>
beyond that of which he (not including any of the other Persons
referred to in this Section 1(a)(iv)) has Beneficial Ownership on
August 22, 1995, and further provided that any percentage increase
in his Beneficial Ownership of outstanding Common Stock of the Company
by reason of share purchases by the Company shall not be deemed to be
part of any such additional 1% or more. Notwithstanding the foregoing,
no Person shall become an "Acquiring Person" as the result of 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 such Person to more than 20% of
the Common Stock of the Company then outstanding; provided
however, that if a Person shall become the Beneficial Owner of
more than 20% of the Common Stock of the Company then outstanding
by reason of share purchases by the Company and shall, after such
share purchases by the Company, become the Beneficial Owner of
any additional (subject to the 1% or more provision in the
preceding sentence solely as it applies to Horace H. Irvine II)
Common Stock of the Company, then such Person shall be deemed to
be an "Acquiring Person." Notwithstanding the foregoing, if the
Board, with the consent of a majority of the Continuing
Directors, determines in good faith that a Person who would
otherwise be an "Acquiring Person," as defined pursuant to the
foregoing provisions of this paragraph (a), has become such
inadvertently, and such Person divests as promptly as practicable
a sufficient number of shares of Common Stock so that such Person
would no longer be an "Acquiring Person," as defined pursuant to
the foregoing provisions of this paragraph (a), then such Person
shall not be deemed to be an "Acquiring Person" for any purposes
of this Agreement.
(b) "Act" shall mean the Securities Act of 1933, as
amended.
(c) "Adjustment Shares" shall have the meaning set forth
in Section 11(a)(ii)(D)hereof.
(d) "Adverse Person" shall mean any Person declared to be
an Adverse Person by the Continuing Directors upon determination
that the criteria set forth in Section 11(a)(ii)(D) hereof apply
to such Person.
(e) "Adverse Person Event" shall mean the determination by
the Continuing Directors (with the concurrence of the Independent
Directors), pursuant to Section 11(a)(ii)(D) hereof, that a
Person is an Adverse Person.
(f) "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 in effect on the date of this Agreement (the
"Exchange Act").
(g) "Agreement" shall mean this Rights Agreement as
originally executed or as it may from time to time be
supplemented or amended pursuant to the applicable provisions
hereof.
(h) 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
<PAGE>
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 offer or exchange
offer made by such Person or any of such Person's Affiliates or
Associates until such tendered securities are accepted for
purchase or exchange, or (B) securities issuable upon exercise of
Rights at any time 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) or
Section 22 hereof (the "Original Rights") or pursuant to
Section 11(a)(i) hereof in connection with an adjustment made
with respect to any Original Rights;
(ii) which such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has the right
to vote or dispose of or has "beneficial ownership" of (as
determined pursuant to Rule 13d-3 of the General Rules and
Regulations under the Exchange Act, or any comparable or
successor rule), 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 (h)) or disposing of any voting securities of the
Company (a joint filing of a Schedule 13D under the Exchange Act
or any comparable or successor report being deemed to be
conclusive evidence of such an agreement, arrangement or
understanding); provided, however, that nothing in this paragraph
(h) shall cause a Person engaged in business as an underwriter of
securities to be the "Beneficial Owner" of, or to "beneficially
own", any securities acquired through such Person's participation
in good faith in a firm commitment underwriting until the
expiration of forty days after the date of such acquisition.
Notwithstanding anything in this definition of Beneficial
Ownership to the contrary, the phrase "then outstanding", when
used with reference to a Person's Beneficial Ownership of securi
ties of the Company, shall mean the number of such securities
then issued and outstanding together with the number of such
securities not then actually issued and outstanding which such
Person would be deemed to own beneficially hereunder.
(i) "Board" means the Board of Directors of the Company.
<PAGE>
(j) "Business Day" shall mean any day other than a
Saturday, Sunday or a day on which banking institutions in the
state in which the principal office of the Rights Agent is
located are authorized or obligated by law or executive order to
close.
(k) "Close of Business" on any given date shall mean
5:00 P.M., Boston time, on such date; provided, however, that if
such date is not a Business Day it shall mean 5:00 P.M., Boston
time, on the next succeeding Business Day.
(l) "Common Stock" shall mean the common stock, $.05 par
value, of the Company, except that "Common Stock" when used with
reference to any Person other than the Company shall mean the
capital stock of such Person with the greatest voting power, or
the equity securities or other equity interest having power to
control or direct the management, of such Person.
(m) "Common Stock Equivalents" shall have the meaning set
forth in Section 11(a)(iii) hereof.
(n) "Company" shall mean the Person named as the "Company"
in the first paragraph of this Agreement until a successor
corporation shall have become such or until a Principal Party
shall assume, and thereafter be liable for, all obligations and
duties of the Company hereunder, pursuant to the applicable
provisions of this Agreement, and thereafter "Company" shall mean
such successor corporation or Principal Party.
(o) "Continuing Director" shall mean (i) any member of the
Board, while such Person is a member of the Board, who is not an
Acquiring Person or an Adverse Person, or an Affiliate or
Associate of such Person, or a representative of such Person or
of any such Affiliate or Associate, and was a member of the Board
on the date of this Agreement, or (ii) any Person who becomes a
member of the Board subsequent to the date of this Agreement,
while such Person is a member of the Board, who is not an
Acquiring Person or an Adverse Person, or an Affiliate or
Associate of such Person, or a representative of an Acquiring
Person or an Adverse Person or of any such Affiliate or
Associate, if such Person's nomination for election or election
to the Board is recommended or approved by a majority of the
Continuing Directors.
(p) "Current Market Price" shall have the meaning set
forth in Section 11(d) hereof.
(q) "Current Value" shall have the meaning set forth in
Section 11(a)(iii) hereof.
(r) "Distribution Date" shall have the meaning set forth
in Section 3(a) hereof.
(s) "Equivalent Common Stock" shall have the meaning set
forth in Section 11(b) hereof.
(t) "Exchange Act" shall have the meaning set forth in
Section 1(f) hereof.
(ti) "Exempt Person" shall have the meaning set forth
in Section 1(a) hereof.
(u) "Expiration Date" shall have the meaning set forth in
Section 7(a) hereof.
<PAGE>
(v) "Final Amendment Date" shall mean the earlier of the
Distribution Date or the occurrence of an Adverse Person Event.
(w) "Final Expiration Date" shall mean the close of
business on September 11, 2005.
(x) "Independent Directors" shall mean the Continuing
Directors who are not executive officers of the Company.
(y) "Initial Exercise Price" shall be $130.
(z) "NASDAQ" shall mean the National Association of
Securities Dealers, Inc. Automated Quotation System.
(aa) "Original Rights" shall have the meaning set forth
in Section 1(h)(i) hereof.
(bb) "Person" shall mean any natural person, firm,
association, corporation, partnership, trust, or other entity or
organization.
(cc) "Principal Party" shall have the meaning set forth
in Section 13(b) hereof.
(dd) "Purchase Price" shall have the meaning set forth
in Section 4(a) hereof.
(ee) "Record Date" shall have the meaning set forth in
the preamble of the Agreement.
(ff) "Redemption Price" shall have the meaning set
forth in Section 23(a) hereof.
(gg) "Rights" shall have the meaning set forth in the
preamble of the Agreement.
(hh) "Rights Agent" shall mean the Person named as the
"Rights Agent" in the first paragraph of this Agreement until a
successor Rights Agent shall have become such pursuant to the
applicable provisions hereof, and thereafter "Rights Agent" shall
mean such successor Rights Agent. If at any time there is more
than one Person appointed by the Company as Rights Agent pursuant
to the applicable provisions of this Agreement, "Rights Agent"
shall mean and include each such Person.
(ii) "Rights Certificates" shall have the meaning set
forth in Section 3(a) hereof.
(jj) "Rights Dividend Declaration Date" shall have the
meaning set forth in the preamble of this Agreement.
(kk) "Section 11(a)(ii) Event" shall mean any event
described in Section 11(a)(ii)(A), (B), (C) or (D) hereof.
(ll) "Section 11(a)(ii) Trigger Date" shall have the
meaning set forth in Section 11(a)(iii) hereof.
<PAGE>
(mm) "Section 13 Event" shall mean any event described
in clauses (x), (y) or (z) of Section 13(a) hereof.
(nn) "Spread" shall have the meaning set forth in
Section 11(a)(iii) hereof.
(oo) "Stock Acquisition Date" shall mean the first date
of a 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.
(pp) "Subsidiary" shall mean, with reference to any
Person, including the Company, 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 which is otherwise controlled
by such Person.
(qq) "Substitute Consideration" shall mean the
substitute consideration referred to in Section 11(a)(iii)
hereof.
(rr) "Substitution Period" shall have the meaning set
forth in Section 11(a)(iii) hereof.
(ss) "Trading Day" shall have the meaning set forth in
Section 11(d) hereof.
(tt) "Triggering Event" shall mean any
Section 11(a)(ii) Event or any Section 13 Event.
Section 2. Appointment of Rights Agent. The Company hereby
appoints the Rights Agent to act as agent for the Company and the
holders of the Rights (who, in accordance with Section 3 hereof,
shall prior to the Distribution Date also be the holders of the
Common Stock) in accordance with the terms and conditions hereof,
and the Rights Agent hereby accepts such appointment. The
Company may from time to time appoint such co-Rights Agents as it
may deem necessary or desirable.
Section 3. Issue of Rights Certificates.
(a) Until the 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, if such tenth Business
Day occurs before the Record Date, the Close of Business on the
Record Date), or such specified or unspecified later date on or
after the Record Date as may be determined by action of a
majority of the Continuing Directors, after the date that a
tender offer or exchange offer by any Person (other than the
Company, any Subsidiary of the Company, any employee benefit plan
of the Company or of any Subsidiary of the Company, or any Person
or entity organized, appointed or established by the Company for
or pursuant to the terms of any such plan) is first published or
sent or given within the meaning of Rule 14d-2(a) of the General
Rules and Regulations under the Exchange Act, if upon
consummation thereof for the maximum number of shares that may be
purchased thereunder, such Person would be the Beneficial Owner
of 25% or more of the shares of Common Stock then outstanding or
(iii) the
<PAGE>
Close of Business on the tenth Business Day after an
Adverse Person Event (the earliest of (i), (ii) and (iii) being
herein referred to as the "Distribution Date"), (x) the Rights
will be evidenced (subject to the provisions of paragraph (b) of
this Section 3) by the certificates for the Common Stock
registered in the names of the holders of the Common Stock (which
certificates for Common Stock shall be deemed also to be
certificates for Rights) and not by separate certificates, and
(y) the Rights will be transferable only in connection with the
transfer of the underlying shares of Common Stock (including a
transfer to the Company). As soon as practicable after the
Distribution Date, the Rights Agent will send by first-class,
postage prepaid mail, to each record holder of the Common Stock
as of the Close of Business on the Distribution Date, at the
address of such holder shown on the records of the Company, one
or more rights certificates, in the form specified in Section 4
hereof (the "Rights Certificates"), evidencing one Right for each
share of Common Stock so held, subject to adjustment as provided
herein. As of and after the Distribution Date, the Rights will
be evidenced solely by such Rights Certificates.
(b) As promptly as practicable following the Record Date,
the Company will send a copy of a Summary of Rights (the "Summary
of Rights"), in substantially the form attached hereto as
Exhibit B, by first-class, postage prepaid mail, to each record
holder of the Common Stock as of the Close of Business on the
Record Date, at the address of such holder shown on the records
of the Company. With respect to certificates for the Common
Stock outstanding as of the Record Date, until the Distribution
Date, the Rights will be evidenced by such certificates for the
Common Stock and the registered holders of the Common Stock shall
also be the registered holders of the associated Rights. Until
the earlier of the Distribution Date or the Expiration Date (as
such term is defined in Section 7 hereof), the transfer of any
certificates representing shares of Common Stock in respect of
which Rights have been issued shall also constitute the transfer
of the Rights associated with such shares of Common Stock.
(c) Rights shall be issued in respect of all shares of
Common Stock that are issued (whether originally issued or from
the Company's treasury) after the Record Date but prior to the
earlier of the Distribution Date or the Expiration Date. Rights
shall also be issued to the extent provided in Section 22 in
respect of all shares of Common Stock which are issued (whether
originally issued or from the Company's treasury) after the
Distribution Date and prior to the Expiration Date. Certificates
representing such shares of Common Stock in respect of which
Rights are issued pursuant to the first sentence of this
Section 3(c) shall also be deemed to be certificates for Rights,
and commencing as soon as reasonably practicable following the
date hereof 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 Hadco Corporation (the "Company") and
The First National Bank of Boston (the "Rights Agent")
dated as of August 22, 1995 (the "Rights Agreement"), the
terms of which are hereby incorporated herein by
reference and a copy of which is on file at the principal
offices of the Company. Under certain circumstances, as
set forth in the Rights Agreement, such Rights will be
evidenced by separate certificates and will no longer be
evidenced by this certificate. The Company 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, an
Adverse Person or any Affiliate or Associate of any
<PAGE>
Acquiring Person or Adverse Person (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. The Rights shall not
be exercisable, and shall be void so long as held, by a
holder in any jurisdiction where the requisite
qualification to the issuance to such holder, or the
exercise by such holder, of the Rights in such
jurisdiction shall not have been obtained or obtainable.
With respect to such certificates containing the foregoing
legend, until the earlier of (i) the Distribution Date or
(ii) the Expiration Date, the Rights associated with the Common
Stock represented by such certificates shall be evidenced by such
certificates alone and registered holders of Common Stock shall
also be the registered holders of the associated Rights, and the
transfer of any of such certificates shall also constitute the
transfer of the Rights associated with the Common Stock
represented by such certificates.
Section 4. Form of Rights Certificates.
(a) The Rights Certificates (and the forms of election to
purchase and of assignment to be printed on the reverse thereof)
shall each be substantially in the form set forth in Exhibit A
hereto and may have such marks of identification or designation
and such legends, summaries or endorsements printed thereon as
the Company may deem appropriate and as are not inconsistent with
the provisions of this Agreement, or as may be required to comply
with any applicable law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock
exchange or trading market on which the Rights may from time to
time be listed, or to conform to usage. Subject to the
provisions of Section 11 and Section 22 hereof, the Rights
Certificates, whenever distributed, shall be dated as of the
Record Date and on their face shall entitle the holders thereof
to purchase such number of shares of Common Stock as shall be set
forth therein at the price per share set forth therein (such
exercise price per share hereinafter referred to as 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 an Adverse Person, (ii) a
transferee of an Acquiring Person or an Adverse Person (or of any
such Associate or Affiliate of an Acquiring Person or an Adverse
Person) who becomes a transferee after the Acquiring Person or
Adverse Person becomes such, or (iii) a transferee of an
Acquiring Person or an Adverse Person (or of any such Associate
or Affiliate of an Acquiring Person or an Adverse Person) who
becomes a transferee prior to or concurrently with the Acquiring
Person or the Adverse Person becoming such and receives such
Rights pursuant to either (A) a transfer (whether or not for
consideration) from the Acquiring Person or the 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 a majority of the Continuing Directors has determined is
part of a plan, arrangement or understanding that has as a
primary purpose or effect avoidance of Section 7(e) hereof, and
any Rights Certificate issued pursuant to Section 6 or Section 11
hereof upon transfer, exchange, replacement or adjustment of any
other Rights
<PAGE>
Certificate referred to in this sentence, shall contain (to the extent
feasible) the following legend (modified to apply to an Acquiring
Person or an Adverse Person, as applicable):
The Rights represented by this Rights Certificate are or
were beneficially owned by a Person who was or became an
Acquiring Person or an Adverse Person or an Affiliate or
Associate of an Acquiring Person or an 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 President or any Vice President and its
Treasurer or any Assistant Treasurer, either manually or by
facsimile signature, and shall have affixed thereto the Company's
seal or a facsimile thereof. The Rights Certificates shall be
countersigned, either manually or by facsimile signature, by the
Rights Agent and shall not be valid for any purpose unless so
countersigned. In case any officer of the Company who shall have
signed any of the Rights Certificates shall cease to be such
officer of the Company before countersignature by the Rights
Agent and issuance and delivery by the Company, such Rights
Certificates, nevertheless, may be countersigned by the Rights
Agent and issued and delivered by the Company with the same force
and effect as though the person who signed such Rights
Certificates had not ceased to be such officer of the Company;
and any Rights Certificates may be signed on behalf of the
Company by any person who, at the actual date of the execution of
such Rights Certificate, shall be a proper officer of the Company
to sign such Rights Certificate, although at the date of the
execution of this Rights Agreement any such person was not such
an officer.
(b) Following the Distribution Date, the Rights Agent will
keep or cause to be kept, at its office 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, the Rights Certificate number and the
date of each of the Rights Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of
Rights Certificates; Mutilated, Destroyed, Lost or Stolen Rights
Certificates.
(a) Subject to the provisions of Section 4(b),
Section 7(e) 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 may be transferred, split up, combined or
exchanged for another Rights Certificate or Certificates,
entitling the registered holder to purchase a like number of
shares of Common Stock (or 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 of the Rights Agent
<PAGE>
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 each such Rights
Certificate and shall have provided such additional evidence of
the identity of the Beneficial Owner (or former Beneficial Owner)
or Affiliates or Associates thereof as the Company shall
reasonably request. Thereupon the Rights Agent shall, subject to
Section 4(b), Section 7(e) and Section 14 hereof, countersign and
deliver to the Person entitled thereto a Rights Certificate or
Certificates, as the case may be, as so requested. The Company
may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any
transfer, split up, combination or exchange of Rights
Certificates.
(b) Upon receipt by the Company and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Rights Certificate, and, in case
of loss, theft or destruction, of indemnity or security
reasonably satisfactory to them, and reimbursement to the Company
and the Rights Agent of all reasonable expenses incidental
thereto, and upon surrender to the Rights Agent and cancellation
of the Rights Certificate if mutilated, the Company will execute
and deliver a new Rights Certificate of like tenor to the Rights
Agent for countersignature and delivery to the registered owner
in lieu of the Rights Certificate so lost, stolen, destroyed or
mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration
Date of Rights.
(a) Subject to Section 7(e) hereof, the registered holder
of any Rights Certificate may exercise the Rights evidenced
thereby (except as otherwise provided herein including, without
limitation, the restrictions 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 set
forth on the reverse side thereof and the certificate contained
therein completed and duly executed, to the Rights Agent at the
office of the Rights Agent designated for such purpose, together
with payment of the aggregate Purchase Price with respect to the
total number of shares of Common Stock (or other securities, cash
or other assets, as the case may be) as to which such surrendered
Rights are then exercisable, at or prior to the earlier of
(i) the Final Expiration Date, (ii) the time at which the Rights
are redeemed as provided in Section 23 hereof, (iii) the time at
which the Rights expire pursuant to Section 13(d) hereof or (iv)
the time at which such Rights are exchanged as provided in
Section 26 hereof (the earliest of (i), (ii), (iii) or (iv) being
herein referred to as the "Expiration Date").
(b) The Purchase Price for each share of Common Stock
pursuant to the exercise of a Right shall initially be the
Initial Exercise 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.
(c) Upon receipt of a Rights Certificate representing
exercisable Rights, with the form of election to purchase set
forth on the reverse side thereof and the certificate contained
therein completed and duly executed, accompanied by payment, with
respect to each Right so exercised, of the Purchase Price for the
shares (or other securities, cash or other assets, as the case
may be) to be purchased as set forth below and an amount equal to
any applicable transfer tax, the Rights Agent shall, subject to
Section 20(k) hereof, promptly (i) requisition from any
<PAGE>
transfer agent of the shares of Common Stock (or make available, if
the Rights Agent is the transfer agent for the Common Stock)
certificates for the total number of shares of Common Stock to be
purchased and the Company hereby irrevocably authorizes its
transfer agent to comply with all such requests, (ii) requisition
from the Company the amount of cash, if any, to be paid in lieu
of fractional shares of Common Stock in accordance with
Section 14 hereof, (iii) after receipt of such certificates for
shares of Common Stock, 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 check, cashier's check or bank draft
payable to the order of the Company. In the event that the
Company is obligated to issue other securities of the Company,
pay cash or distribute other property pursuant to Section 11(a)
hereof, the Company will make all arrangements necessary so that
such other securities, cash 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, such number
of Rights be exercised so that only whole shares of Common 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 the 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 an event
described in Section 11(a)(ii)(A) or (C) and from and after the
Close of Business on the tenth day after the occurrence of an
event described in Section 11(a)(ii)(B) or (D), any Rights
beneficially owned by (i) an Acquiring Person, an Adverse Person
or an Associate or Affiliate of an Acquiring Person or Adverse
Person, which a majority of the Continuing Directors, in their
sole discretion, determines is or was involved in or caused or
facilitated, directly or indirectly (including through any change
in the Board), such Section 11(a)(ii) Event, (ii) a transferee of
any such Acquiring Person or Adverse Person (or of any such
Associate or Affiliate) who becomes a transferee after such
Acquiring Person or Adverse Person becomes such, or (iii) a
transferee of any such Acquiring Person or Adverse Person (or of
any such Associate or Affiliate) who becomes a transferee prior
to or concurrently with such Acquiring Person or Adverse Person
becoming such and receives such Rights pursuant to either (A) a
transfer (whether or not for consideration) from such 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 a majority of the Continuing
Directors 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 ensure 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
<PAGE>
respect to an Acquiring Person or Adverse Person or any of their
Affiliates, Associates or transferees hereunder.
(f) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Company shall be
obligated to undertake any action with respect to a registered
holder upon the occurrence of any purported exercise as set forth
in this Section 7 unless such registered holder shall have
(i) completed and signed the certificate contained in the form of
election to purchase set forth on the reverse side of the Rights
Certificate surrendered for such exercise, and (ii) provided such
additional evidence of the identity of the Beneficial Owner (or
former Beneficial Owner) or Affiliates or Associates thereof as
the Company shall reasonably request.
Section 8. Cancellation and Destruction of Rights
Certificates. All Rights Certificates surrendered for the
purpose of exercise, transfer, split up, combination or exchange
shall, if surrendered to the Company or any of its agents, be
delivered to the Rights Agent for cancellation or in cancelled
form, or, if surrendered to the Rights Agent, shall be cancelled
by it, and no Rights Certificates shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this
Agreement. The Company shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall so cancel
and retire, any other Rights Certificate purchased or acquired by
the Company otherwise than upon the exercise thereof. The Rights
Agent shall deliver all cancelled Rights Certificates to the
Company, or shall, at the written request of the Company, destroy
such cancelled Rights Certificates, and in such case shall
deliver a certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Common Stock.
(a) The Company covenants and agrees that following the
later of (i) the Distribution Date and (ii) the termination of
any period during which the exercisability of the Rights are
suspended, it will cause to be reserved and kept available out of
its authorized and unissued shares of Common Stock and other
securities or out of its authorized and issued shares held in its
treasury, the number of shares of Common Stock 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) Following the later of (i) the Distribution Date and
(ii) the termination of any period during which the
exercisability of the Rights are suspended, and for so long as
the shares of Common Stock and 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 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 Triggering Event in which the consideration to be
delivered by the Company upon exercise of the Rights has been
determined in accordance with this Agreement, a registration
statement under the Act, with respect to the Common Stock or
other securities purchasable upon exercise of the Rights on an
appropriate form, (ii) cause such registration statement to
become effective as soon as practicable after such filing, and
(iii) cause such registration statement to remain effective (with
a prospectus at all
<PAGE>
times meeting the requirements of the Act) until the earlier of (A)
the date as of which the Rights are no longer exercisable for such
securities, and (B) the 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. 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. Upon any suspension of
the exercisability of the Rights referred to in this
Section 9(c), 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. Notwithstanding
any provision of this Agreement to the contrary, the Rights shall
not be exercisable and shall be void so long as held by a holder
in any jurisdiction where the requisite qualification to the
issuance to such holder, or the exercise by such holder, of the
Rights in such jurisdiction shall not have been obtained or be
obtainable, the exercise thereof shall not be permitted under
applicable law or a registration statement shall not have been
declared effective.
(d) The Company covenants and agrees that it will take all
such action as may be necessary to ensure that all shares of
Common Stock (or other securities) delivered upon exercise of
Rights shall, at the time of delivery of the certificates for
such shares (subject to payment of the Purchase Price), be duly
and validly authorized and issued and fully paid and
nonassessable.
(e) The Company further covenants and agrees that it will
pay when due and payable any and all federal and state transfer
taxes and charges that may be payable in respect of the issuance
or delivery of the Rights Certificates and of any certificates
for shares of Common Stock (or other securities, as the case may
be) upon the exercise of Rights. The Company shall not, however,
be required to pay any transfer tax that may be payable in
respect of any transfer or delivery of Rights Certificates to a
Person other than, or the issuance or delivery of shares of
Common Stock (or other securities, as the case may be) in respect
of a name other than that of, the registered holder of the Rights
Certificates evidencing Rights surrendered for exercise or to
issue or deliver any certificates for shares of Common Stock (or
other securities, as the case may be) in a name other than that
of the registered holder upon the exercise of any Rights until
such tax shall have been paid (any such tax being payable by the
holder of such Rights Certificates at the time of surrender) or
until it has been established to the Company's satisfaction that
no such tax is due.
Section 10. Common Stock Record Date. Each Person in whose
name any certificate for shares of Common Stock (or other
securities, as the case may be) is issued upon the exercise of
Rights shall for all purposes be deemed to have become the holder
of record of the shares of Common Stock (or other securities, as
the case may be) represented thereby on, and such certificate
shall be dated, the date upon which the Rights Certificate
evidencing such Rights was duly surrendered and payment of the
Purchase Price (and all applicable transfer taxes) was made;
provided, however, that if the date of such surrender and payment
is a date upon which the Common Stock (or other securities, as
the case may be) transfer books of the Company are
<PAGE>
closed, such Person shall be deemed to have become the record holder
of such shares on, and such certificate shall be dated, the next
succeeding Business Day on which the Common Stock (or 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 Common
Stock payable in shares of Common Stock, (B) subdivide the
outstanding Common Stock, (C) combine the outstanding Common
Stock into a smaller number of shares, or (D) issue any shares of
its capital stock in a reclassification of the Common Stock
(including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or
surviving corporation), except as otherwise provided in this
Section 11(a) and Section 7(e) hereof, the Purchase Price in
effect at the time of the record date for such dividend or of the
effective date of such subdivision, combination or
reclassification, and the number and kind of shares of Common
Stock or capital stock, as the case may be, issuable on such
date, shall be proportionately adjusted so that if a holder of
Rights after such time were to exercise that number of Rights (or
fraction thereof) which would result in the aggregate amount of
the Purchase Price payable upon such exercise (at the Purchase
Price then in effect) being equal to the amount of the Purchase
Price payable prior to such time upon exercise of a Right, he
would be entitled to receive the aggregate number and kind of
shares of Common Stock or other capital stock, as the case may
be, which, if a Right had been exercised immediately prior to
such time and at a time when the Common Stock (or other capital
stock, as the case may be) 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 that 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 Acquiring Person or any Associate or
Affiliate of any Acquiring Person, at any time after the date of
this Agreement, directly or indirectly, (1) shall merge into the
Company or otherwise combine with the Company and the Company
shall be the continuing or surviving corporation of such merger
or combination and the Common Stock of the Company shall remain
outstanding and unchanged, (2) shall merge or otherwise combine
with any Subsidiary of the Company, (3) shall, in one transaction
or a series of transactions, transfer any assets to the Company
or to any of its Subsidiaries in exchange (in whole or in part)
for shares of Common Stock, for shares of other equity
securities of the Company or any Subsidiary of the Company, or for
securities exercisable for or convertible into shares of equity
<PAGE>
securities of the Company or any Subsidiary of the Company
(Common Stock or otherwise) or otherwise obtain from the Company,
with or without consideration, any additional shares of equity
securities of the Company or securities exercisable for or
convertible into shares of such equity securities of the Company
(other than pursuant to a pro rata distribution to all holders of
Common Stock or upon the exercise of a convertible security of
the Company or any Subsidiary of the Company in accordance with
its terms), (4) shall sell, purchase, lease, exchange, mortgage,
pledge, transfer or otherwise acquire or dispose of, in one
transaction or a series of transactions, to, from or with (as the
case may be) the Company or any of its Subsidiaries, assets on
terms and conditions less favorable to the Company than the
Company would be able to obtain in arm's length negotiations with
an unaffiliated third party, other than pursuant to a transaction
set forth in Section 13(a) hereof, (5) shall sell, purchase,
lease, exchange, mortgage, pledge, transfer or otherwise acquire
or dispose of in one transaction or a series of transactions, to,
from or with (as the case may be) the Company or any of its
Subsidiaries assets having an aggregate fair market value of more
than $1,000,000, other than pursuant to a transaction set forth
in Section 13(a) hereof and other than pursuant to a transaction
or series of transactions that have been approved by a majority
of the Continuing Directors, (6) shall receive any compensation
from the Company or any of the Company's Subsidiaries other than
compensation for full-time employment as a regular employee at
rates in accordance with the Company's (or its Subsidiaries')
past practices, or (7) shall receive the benefit, directly or
indirectly (except proportionately as a stockholder and except if
resulting from a requirement of law or governmental regulation),
of any loans, advances, guarantees, pledges or other financial
assistance or any tax credits or other tax advantages provided by
the Company or any of its Subsidiaries, or
(B) any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the
Company or of any Subsidiary of the Company, or any Person or
entity organized, appointed or established by the Company for or
pursuant to the terms of any such plan or an Exempt Person),
alone or together with any Affiliates and Associates of such
Person, shall, at any time after the Rights Dividend Declaration
Date, become the Beneficial Owner of 25% or more of the shares of
Common Stock then outstanding, unless the event causing the 25%
threshold to be crossed is a transaction set forth in
Section 13(a) hereof, or is an acquisition of shares of Common
Stock pursuant to a tender offer or an exchange offer for all
outstanding shares of Common Stock at a price and on terms
determined by a majority of the Independent Directors, after
receiving advice from one or more investment banking firms, to be
(a) at a price that is fair to stockholders (taking into account
all factors which 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 interest of the Company and its stockholders, or
(C) during such time as there is an Acquiring
Person, there shall be any reclassification of securities
(including any reverse stock split), or recapitalization of the
Company, or any merger or consolidation of the Company with any
of its Subsidiaries or any other transaction or series of
transactions involving the Company or any of its Subsidiaries
(whether or not with or into or otherwise involving an Acquiring
Person), other than a transaction or transactions to which the
provisions of Section 13(a) hereof apply (whether or not with or
into or otherwise involving an Acquiring Person), which has the
effect, directly or indirectly, of increasing by more than 1% the
proportionate share of the outstanding shares of
<PAGE>
any class of equity securities of the Company or any of its Subsidiaries
which is directly or indirectly beneficially owned by any Acquiring
Person or any Associate or Affiliate of any Acquiring Person, or
(D) a majority of the Continuing Directors 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 the Rights Dividend
Declaration Date, become the Beneficial Owner of an amount of
Common Stock which a majority of Continuing Directors determine
to be substantial (which amount shall in no event be less than
10% of the shares of Common Stock then outstanding) and a
majority of the Continuing Directors determines (with the
concurrence of a majority of the Independent Directors), after
reasonable inquiry and investigation, which may include a review
of the public record regarding such Person and any information
such directors may request from such Person and consultation with
such persons as such directors shall deem appropriate, that
(1) such Beneficial Ownership by such Person is intended to cause
the Company to repurchase the Common Stock beneficially owned by
such Person or to cause pressure on the Company to take action or
enter into a transaction or series of transactions intended to
provide such Person with short-term financial gain under
circumstances where such directors determine that the best long-
term interests of the Company and its stockholders (taking into
account any impact on the national security of the United States
or the impact on any constituency which applicable law permits
directors to consider in discharging their fiduciary duty) would
not be served by taking such action or entering into such
transactions or series of transactions at that time or (2) 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, then, immediately upon the
occurrence of any event described in Section 11(a)(ii)(A) or (C)
hereof, and upon the Close of Business ten (10) days after the
occurrence of any event described in Section 11(a)(ii)(B) or (D)
hereof, proper provision shall be made so that each holder of a Right
(except as provided below and in Section 7(e) hereof) shall thereafter
have the right to receive, upon exercise thereof at the then current
Purchase Price in accordance with the terms of this Agreement, such number
of shares of Common Stock of the Company as shall equal the
result obtained by (x) multiplying the then current Purchase
Price by the then number of shares of Common Stock for which a
Right was or would have been exercisable immediately prior to the
first occurrence of a Section 11(a)(ii) Event, whether or not
such Right was then exercisable 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 Common Stock (determined pursuant to Section 11(d)
hereof) on the date of such first occurrence (such number of
shares being referred to herein as the "Adjustment Shares").
(iii) In lieu of issuing shares of Common Stock in
accordance with Section 7(c) or Section 11(a)(ii) hereof, if the
Board, with the consent of a majority of the Continuing
Directors, determines that the action described below in this
Section 11(a)(iii) is necessary or appropriate and not contrary
to the interests of the holders of Rights (other than any
Acquiring Person, any Adverse Person and any Affiliates or
Associates of any such Person), the Company may: (A) determine
(x) in the case of an exercise of a Right prior to any adjustment
pursuant to Section 11(a)(ii) hereof, the Current Market Price
per share of Common Stock on the date of the
<PAGE>
exercise of that Right, or (y) in the case of an exercise of a Right
following any adjustment pursuant to Section 11(a)(ii) the value of the
Adjustment Shares issuable upon the exercise of a Right (the
result of (x) or (y), as the case may be, being referred to
herein as the "Current Value"), and (B) with respect to each
Right (subject to Section 7(e) hereof), make adequate provision
to substitute, upon the exercise of a Right 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 has deemed to have the
same value as shares of Common Stock (such shares of preferred
stock being 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, as adjusted (less the amount of any reduction
in the Purchase Price), where such aggregate value has been
determined by the Board based upon the advice of a nationally
recognized investment banking firm selected by the Board;
provided, however, if the Company shall not have made adequate
provision to deliver value pursuant to clause (B) above within
thirty (30) days following the later of (x) the first occurrence
of a Section 11(a)(ii) Event and (y) the first 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 or cash have an aggregate value equal to the
Spread. For purposes of the preceding sentence, the term
"Spread" shall mean the excess of (i) the Current Value over
(ii) the Purchase Price. If the number of shares of Common Stock
that are authorized by the Company's Articles of Organization, as
amended, 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 any Rights and the
Board with the consent of a majority of the Continuing Directors
determines 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, shall be referred
to as the "Substitution Period"). To the extent that the Company
determines that some action need be taken pursuant to the
preceding provisions of this Section 11(a)(iii), the Company
(x) shall provide, subject to Section 7(e) hereof, that such
action shall apply uniformly to all outstanding Rights, and
(y) may suspend the exercisability of the Rights until the
expiration of the Substitution Period in order to seek any
authorization of additional shares or to decide the appropriate
form of distribution to be made pursuant to such provisions and
to determine the value thereof. In the event of any such
suspension, the Company shall issue a public announcement stating
that the exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time as the
suspension is no longer in effect. For purposes of this Section
11(a)(iii), the value of the Common Stock shall be the Current
Market Price per share of the Common Stock (as determined
pursuant to Section 11(d) hereof) 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 equal 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 Common Stock entitling them to subscribe for or
purchase (for a period expiring within forty-five (45) calendar
days after such record date)
<PAGE>
Common Stock, shares having the same rights, privileges and preferences
as the shares of Common Stock ("Equivalent Common Stock") or securities
convertible into Common Stock or Equivalent Common Stock at a price per
share of Common Stock or per share of Equivalent Common Stock (or having a
conversion price per share, if a security convertible into Common
Stock or Equivalent Common Stock) less than the Current Market
Price per share of Common Stock (as determined pursuant to
Section 11(d) hereof) on such record date, the Purchase Price to
be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to
such record date by a fraction, the numerator of which shall be
the number of shares of Common Stock outstanding on such record
date, plus the number of shares of Common Stock which the
aggregate offering price of the total number of shares of Common
Stock or Equivalent Common Stock (or the aggregate initial
conversion price of the convertible securities so to be offered)
would purchase at such Current Market Price, and the denominator
of which shall be the number of shares of Common Stock
outstanding on such record date, plus the number of additional
shares of Common Stock or Equivalent Common Stock to be offered
for subscription or purchase (or into which the convertible
securities so to be offered are initially convertible). In case
such subscription price may be paid by delivery of consideration
part or all of which may be in a form other than cash, the value
of such noncash consideration shall be as determined in good
faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the
Rights Agent and shall be binding on the Rights Agent and the
holders of the Rights. Shares of Common Stock owned by or held
for the account of the Company shall not be deemed outstanding
for the purpose of any such computation. Such adjustment shall
be made successively whenever such a record date is fixed, and in
the event that such rights, options or warrants are not so
issued, the Purchase Price shall be adjusted to be the Purchase
Price which would then be in effect if such record date had not
been fixed.
(c) In case the Company shall fix a record date for a
distribution to all holders of Common Stock (including any such
distribution made in connection with a consolidation or merger in
which the Company is the continuing or surviving corporation) of
evidences of indebtedness, cash (other than a regular quarterly
or other periodic cash dividend out of the earnings or retained
earnings of the Company), assets (other than a dividend payable
in Common Stock, but including any dividend payable in stock
other than Common Stock) or subscription rights or warrants
(excluding those referred to in Section 11(b) hereof), the
Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the
numerator of which shall be the Current Market Price per share of
Common Stock (as determined pursuant to Section 11(d) hereof) on
such record date, less the fair market value (as determined in
good faith by the Board whose determination shall be described
in a statement filed with the Rights Agent and shall be binding
on the Rights Agent) of the portion of the cash, assets or
evidences of indebtedness so to be distributed or of such
subscription rights or warrants applicable to a share of Common
Stock and the denominator of which shall be such Current Market
Price per share of Common Stock (as determined pursuant to
Section 11(d) hereof). Such adjustments shall be made
successively whenever such a record date is fixed, and in the
event that such distribution is not so made, the Purchase Price
shall be adjusted to be the Purchase Price which would have been
in effect if such record date had not been fixed.
(d) For the purpose of any computation hereunder, other
than computations made pursuant to Section 11(a)(iii) hereof, the
Current Market Price per share of Common Stock on any date shall
be deemed to be the average of the daily closing prices per share
of such Common
<PAGE>
Stock for the thirty (30) consecutive Trading Days immediately prior to
such date, and for the 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 the Common Stock
is determined during a period following the announcement by the
issuer of such 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 Rights), or (B) any subdivision, combination or
reclassification of such Common Stock, and prior to the
expiration of the requisite thirty (30) Trading Day or ten (10)
Trading Day period, as set forth above, after the ex-dividend
date for such dividend or distribution, or the record date for
such subdivision, combination or reclassification, then, and in
each such case, the Current Market Price shall be 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 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 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 organization, 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. 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 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 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, as the case may be.
Notwithstanding the first sentence of this Section 11(e), any
adjustment required by this Section 11 shall be made no later
than the earlier of (i) three (3) years from the date of the
transaction which mandates such adjustment, or (ii) the
Expiration Date.
(f) If as a result of an adjustment made pursuant to
Section 11(a)(ii) or Section 13(a) hereof, the holder of any
Right thereafter exercised shall become entitled to receive any
shares of capital stock other than Common Stock, thereafter the
number of such other shares so receivable upon exercise of any
Right and the Purchase Price thereof shall be subject to
adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to
<PAGE>
the provisions with respect to the Common Stock contained in Sections
11(a), (b), (c), (e), (g), (h), (i), (j), (k) and (m) hereof, and the
provisions of Sections 7, 9, 10, 13 and 14 hereof with respect to the
Common Stock shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent
to any adjustment made to the Purchase Price hereunder shall
evidence the right to purchase, at the adjusted Purchase Price,
the number of shares of Common Stock purchasable from time to
time hereunder upon exercise of the Rights, all subject to
further adjustment as provided herein.
(h) Unless the Company shall have exercised its election
as provided in Section 11(i) hereof, upon each adjustment of the
Purchase Price as a result of the calculations made in
Sections 11(b) and (c) hereof, each Right outstanding immediately
prior to the making of such adjustment shall thereafter evidence
the right to purchase, at the adjusted Purchase Price, that
number of shares of Common Stock obtained by (i) multiplying
(x) the number of shares covered by a Right immediately prior to
this adjustment, by (y) the Purchase Price in effect immediately
prior to such adjustment of the Purchase Price, and (ii) dividing
the product so obtained by the Purchase Price in effect
immediately after such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of Rights,
in lieu of any adjustment in the number of shares of Common Stock
purchasable upon the exercise of a Right. Each of the Rights
outstanding after the adjustment in the number of Rights shall be
exercisable for the number of shares of Common Stock for which a
Right was exercisable immediately prior to such adjustment. Each
Right held of record prior to such adjustment of the number of
Rights shall become that number of Rights (calculated to the
nearest ten-thousandth) obtained by dividing the Purchase Price
in effect immediately prior to adjustment of the Purchase Price
by the Purchase Price in effect immediately after adjustment of
the Purchase Price. The Company shall make a public announcement
of its election to adjust the number of Rights, indicating the
record date for the adjustment, and, if known at the time, the
amount of the adjustment to be made. This record date may be the
date on which the Purchase Price is adjusted or any day
thereafter, but, if the Rights Certificates have been issued,
shall be at least ten (10) days later than the date of the public
announcement. If Rights Certificates have been issued, upon each
adjustment of the number of Rights pursuant to this
Section 11(i), the Company shall, as promptly as practicable,
cause to be distributed to holders of record of Rights
Certificates on such record date Rights Certificates evidencing,
subject to Section 14 hereof, the additional Rights to which such
holders shall be entitled as a result of such adjustment, or, at
the option of the Company, shall cause to be distributed to such
holders of record in substitution and replacement for the Rights
Certificates held by such holders prior to the date of
adjustment, and upon surrender thereof, if required by the
Company, new Rights Certificates evidencing all the Rights to
which such holders shall be entitled after such adjustment.
Rights Certificates so to be distributed shall be issued,
executed and countersigned in the manner provided for herein (and
may bear, at the option of the Company, the adjusted Purchase
Price) and shall be registered in the names of the holders of
record of Rights Certificates on the record date specified in the
public announcement.
(j) Irrespective of any adjustment or change in the
Purchase Price or the number of shares of Common Stock issuable
upon the exercise of the Rights, the Rights Certificates
theretofore and thereafter issued may continue to express the
Purchase Price per share and the number of shares which were
expressed in the initial Rights Certificates issued hereunder.
<PAGE>
(k) Before taking any action that would cause an
adjustment reducing the Purchase Price below the then par value
of the shares of Common Stock issuable upon exercise of the
Rights, the Company shall take any corporate action which may, in
the opinion of its counsel, be necessary in order that the
Company may validly and legally issue fully paid and
nonassessable shares of Common Stock at such adjusted Purchase
Price.
(l) In any case in which this Section 11 shall require
that an adjustment in the Purchase Price be made effective as of
a record date for a specified event, the Company may elect to
defer until the occurrence of such event the issuance to the
holder of any Right exercised after such record date the shares
of Common Stock and other capital stock or securities of the
Company, if any, issuable upon such exercise over and above the
shares of Common Stock and other capital stock or securities of
the Company, if any, issuable upon such exercise on the basis of
the Purchase Price in effect prior to such adjustment; provided,
however, that the Company shall deliver to such holder a due bill
or other appropriate instrument evidencing such holder's right to
receive such additional shares 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 shall
determine to be advisable in order that any (i) consolidation or
subdivision of the Common Stock, (ii) issuance wholly for cash of
any shares of Common Stock at less than the Current Market Price,
(iii) issuance wholly for cash of shares of Common Stock or
securities which by their terms are convertible into or
exchangeable for shares of Common Stock, (iv) stock dividends, or
(v) issuance of rights, options or warrants referred to in this
Section 11, hereafter made by the Company to holders of its
Common Stock shall not be taxable to such 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 that 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 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
that 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
<PAGE>
will diminish substantially or otherwise eliminate the benefits
intended to be afforded by the Rights.
(p) The failure by the Continuing Directors to declare (or
the Independent Directors to concur therewith) a Person to be an
Adverse Person following such Person becoming the Beneficial
Owner of 10% or more of the outstanding Common Stock shall not
imply that such Person is not an Adverse Person or limit such
directors' right at any time in the future to declare such Person
to be an Adverse Person.
Section 12. Certificate of Adjusted Purchase Price or Number
of Shares. Whenever an adjustment is made as provided in
Section 11 and Section 13 hereof, the Company shall (a) promptly
prepare a certificate setting forth such adjustment and a brief
statement of the facts accounting for such adjustment,
(b) promptly file with the Rights Agent, and with each transfer
agent for the Common Stock, a copy of such certificate, and
(c) mail a brief summary thereof to each holder of a Rights
Certificate (or, if prior to the Distribution Date, to each
holder of a certificate representing shares of Common Stock) in
accordance with Section 25 hereof. The Rights Agent shall be
fully protected in relying on any such certificate and on any
adjustment therein contained and shall not be deemed to have
knowledge of any 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 that 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 that 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 more than 50%
of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any Person or Persons (other
than the Company or any Subsidiary of the Company in one or more
transactions each of which complies with Section 11(o) hereof),
then, and in each such case and except as contemplated in
Section 13(d) hereof, proper provision shall be made so that:
(i) each holder of a Right, except as provided in Section 7(e)
hereof, shall thereafter have the right to receive, upon the
exercise thereof at the then current Purchase Price in accordance
with the terms of this Agreement, such number of validly
authorized and issued, fully paid, nonassessable and freely
tradeable shares of Common Stock of the Principal Party (as such
term is hereinafter defined), not subject to any liens,
encumbrances, rights of first refusal or other adverse claims, as
shall be equal to the result obtained by (1) multiplying the then
current Purchase Price by the number of shares of Common Stock
for which a Right was exercisable immediately prior to the first
occurrence of a Section 13 Event (or, if a Section 11(a)(ii)
Event has occurred prior to the first occurrence of a Section 13
Event, multiplying the number of shares of Common Stock for which
a Right was exercisable immediately prior to the first occurrence
of a Section 11(a)(ii) Event by the Purchase Price in
<PAGE>
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 (determined pursuant to Section 11(d)(i)
hereof) per share of the Common Stock of such Principal Party on
the date of consummation of such Section 13 Event; (ii) such
Principal Party shall thereafter be liable for, and shall assume,
by virtue of such Section 13 Event, all the obligations and
duties of the Company pursuant to this Agreement; (iii) the term
"Company" shall thereafter be deemed to refer to such Principal
Party, it being specifically intended that the provisions of
Section 11 hereof shall apply only to such Principal Party
following the first occurrence of a Section 13 Event; (iv) such
Principal Party shall take such steps (including, but not limited
to, the reservation of a sufficient number of shares of its
Common Stock) in connection with the consummation of any such
transaction as may be necessary to assure that the provisions
hereof shall thereafter be applicable, as nearly as reasonably
may be, in relation to its shares of Common Stock thereafter
deliverable upon the exercise of the Rights; and (v) the
provisions of Section 11(a)(ii) hereof shall be of no effect
following the first occurrence of any Section 13 Event.
(b) "Principal Party" shall mean
(i) in the case of any transaction
described in clause (x) or (y) of the first
sentence of Section 13(a) hereof, the Person that
is the issuer of any securities into which shares
of Common Stock of the Company are converted in
such merger or consolidation, and if no securities
are so issued, the Person that is the other party
to such merger or consolidation; and
(ii) in the case of any transaction
described in clause (z) of the first sentence of
Section 13(a) hereof, 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, as amended, 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 such
consolidation, merger, sale or transfer unless the Principal
Party shall have a sufficient number of authorized shares of its
Common Stock which have not been issued or reserved for issuance
to permit the exercise in full of the Rights in accordance with
this Section 13 and unless prior thereto the Company and such
Principal Party shall have executed and delivered to the Rights
Agent a supplemental agreement providing for the terms set forth
in paragraphs (a) and (b) of this Section 13 and further
providing that, as soon as practicable after the date of any
Section 13 Event, the Principal Party will:
<PAGE>
(i) prepare and file a registration statement under
the 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 Act) until the Expiration
Date; and
(ii) deliver to holders of the Rights historical
financial statements for the Principal Party and each of its
Affiliates that comply in all respects with the requirements for
registration on Form 10 under the Exchange Act, as amended.
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 occurrence of a Section 11(a)(ii) Event, the Rights
which have not theretofore been exercised shall thereafter become
exercisable in the manner described in Section 13(a) hereof.
(d) Notwithstanding anything in this Agreement to the
contrary, Section 13 shall not be applicable to a transaction
described in subparagraphs (x) and (y) of Section 13(a) if
(i) such transaction is consummated with a Person or Persons who
acquired shares of Common Stock pursuant to a tender offer or
exchange offer for all outstanding shares of Common Stock which
complies with the provisions of Section 11(a)(ii)(B) hereof, (or
a wholly owned subsidiary of any such Person or Persons),
(ii) the price per share of Common Stock offered in such
transaction is not less than the price per share of Common Stock
paid to all holders of shares of Common Stock whose shares were
purchased pursuant to such tender offer or exchange offer, and
(iii) the form of consideration being offered to the remaining
holders of shares of Common Stock pursuant to such transaction is
the same as the form of consideration paid pursuant to such
tender offer or exchange offer. Upon consummation of any such
transaction contemplated by this Section 13(d), all Rights
hereunder shall expire.
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions
of Rights, except prior to the Distribution Date as provided in
Section 11(i) hereof, or to distribute Rights Certificates that
evidence fractional Rights. If the Company determines not to
issue fractional Rights, there shall be paid in lieu thereof 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 on the principal national securities exchange
on which the Rights are listed or admitted to trading, or if the
Rights are not listed or admitted to trading on any national
securities exchange, the last quoted price or, if not so quoted,
the average of the high bid and low asked prices in the over-the-
counter market, as reported by NASDAQ or such other system then
in use or, if on any such date the Rights are not quoted by any
such organization, the average of the closing bid and asked
prices as furnished by a professional
<PAGE>
market maker making a market in the Rights selected by the Board.
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 shall be used.
(b) The Company shall not be required to issue fractions
of shares of Common Stock upon exercise of the Rights or to
distribute certificates that evidence fractional shares of Common
Stock. In lieu of fractional shares of Common Stock, the Company
may pay to the registered holders of Rights Certificates at the
time such Rights are exercised as herein provided an amount in
cash equal to the same fraction of the current market value of
one share of Common Stock. For purposes of this Section 14(b),
the current market value of one share of Common Stock shall be
the closing price per share of Common Stock (determined pursuant
to Section 11(d) hereof) on the Trading Day immediately prior to
the date of such exercise.
(c) The holder of a Right by the acceptance of the Right
expressly waives his right to receive any fractional Rights or
any fractional shares upon exercise of a Right.
Section 15. Rights of Action. All rights of action in
respect of this Agreement, other than rights of action vested in
the Rights Agent in Section 18 hereof, are vested in the
respective registered holders of the Rights Certificates (and,
prior to the Distribution Date, the registered holders of the
Common Stock); and any registered holder of any Rights
Certificate (or, prior to the Distribution Date, of the Common
Stock), without the consent of the Rights Agent or of the holder
of any other Rights Certificate (or, prior to the Distribution
Date, of the Common Stock), may, in his own behalf and for his
own benefit, enforce, and may institute and maintain any suit,
action or proceeding against the Company to enforce, or otherwise
act in respect of, his right to exercise the Rights evidenced by
such Rights Certificate in the manner provided in such Rights
Certificate and in this Agreement. Without limiting the
foregoing or any remedies available to the holders of Rights, it
is specifically acknowledged that the holders of Rights would not
have an adequate remedy at law for any breach of this Agreement
and shall be entitled to specific performance of the obligations
hereunder and injunctive relief against actual or threatened
violations of the obligations hereunder of any Person subject to
this Agreement.
Section 16. Agreement of Rights Holders. Every holder of a
Right, by accepting the same, consents and agrees with the
Company and the Rights Agent and with every other holder of a
Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of Common
Stock;
(b) after the Distribution Date, the Rights Certificates
are transferable only on the registry books of the Rights Agent
if surrendered at the office of the Rights Agent designated for
such purposes, duly endorsed or accompanied by a proper
instrument of transfer and with the appropriate forms of
assignment and certificates duly completed and 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
<PAGE>
other than the Company or the Rights Agent) for all purposes whatsoever,
and neither the Company nor the Rights Agent, subject to the last
sentence of Section 7(e) hereof, shall be required to be affected by
any notice to the contrary; and
(d) notwithstanding anything in this Agreement to the
contrary, neither the Company nor the Rights Agent shall have any
liability to any holder of a Right or other Person as a result of
its inability to perform any of its obligations under this
Agreement by reason of any preliminary or permanent injunction or
other order, decree or ruling issued by a court of competent
jurisdiction or by a governmental, regulatory or administrative
agency or commission, or any statute, rule, regulation or
executive order promulgated or enacted by any governmental
authority, prohibiting or otherwise restraining performance of
such obligation; provided, however, the Company must use its best
efforts to have any such order, decree or ruling lifted or
otherwise overturned as soon as possible.
Section 17. Rights Certificate Holder Not Deemed a
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 shares of Common Stock or any other
securities of the Company which may at any time be issuable on
the exercise of the Rights represented thereby, nor shall
anything contained herein or in any Rights Certificate be
construed to confer upon the holder of any Rights Certificate, as
such, any of the rights of a 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 24 hereof), or to receive dividends or
subscription rights, or otherwise, until the Right or Rights
evidenced by such Rights Certificate shall have been exercised in
accordance with the provisions hereof.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the Rights Agent
reasonable compensation for all services rendered by it hereunder
and, from time to time, on demand of the Rights Agent, its
reasonable expenses and counsel fees and disbursements and other
disbursements incurred in the administration and execution of
this Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights Agent
for, and to hold it harmless against, any loss, liability or
expense, incurred without gross negligence, bad faith or willful
misconduct on the part of the Rights Agent, for anything done or
omitted by the Rights Agent in connection with the acceptance and
administration of this Agreement, including the costs and
expenses of defending against any claim of liability in the
premises.
(b) The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or
omitted by it in connection with its administration of this
Agreement in reliance upon any Rights Certificate or certificate
for Common Stock or for other securities of the Company,
instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent,
certificate, statement, or other paper or document believed by it
to be genuine and to be signed, executed and, where necessary,
verified or acknowledged, by the proper Person or Persons.
Section 19. Merger or Consolidation or Change of Name of
Rights Agent.
<PAGE>
(a) Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or
consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any corporation succeeding to the
corporate trust or stock transfer business of the Rights Agent or
any successor Rights Agent, shall be the successor to the Rights
Agent under this Agreement without the execution or filing of any
paper or any further act on the part of any of the parties
hereto; provided, however, that such corporation would be
eligible for appointment as a successor Rights Agent under the
provisions of Section 21 hereof. In case at the time such
successor Rights Agent shall succeed to the agency created by
this Agreement, any of the Rights Certificates shall have been
countersigned but not delivered, any such successor Rights Agent
may adopt the counter-signature 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 the
name of the successor Rights Agent; and in all such cases such
Rights Certificates shall have the full force provided in the
Rights Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent shall
be changed and at such time any of the Rights Certificates shall
have been countersigned but not delivered, the Rights Agent may
adopt the countersignature under its prior name and deliver
Rights Certificates so countersigned; and in case at that time
any of the Rights Certificates shall not have been countersigned,
the Rights Agent may countersign such Rights Certificates either
in its prior name or in its changed name; and in all such cases
such Rights Certificates shall have the full force provided in
the Rights Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations imposed by this Agreement
upon the following terms and conditions, by all of which the
Company and the holders of Rights Certificates, by their
acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who
may be legal counsel for the Company), and the advice or opinion
of such counsel shall be full and complete authorization and
protection to the Rights Agent as to any action taken or omitted
by it in good faith and in accordance with such 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 or suffering any action hereunder,
such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by the President,
any Vice President, the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of the Company and delivered
to the Rights Agent; and such certificate shall be full
authorization to the Rights Agent for any action taken or
suffered in good faith by it under the provisions of this
Agreement in reliance upon such certificate.
<PAGE>
(c) The Rights Agent shall be liable hereunder only for
its own gross negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason
of any of the statements of fact or recitals contained in this
Agreement or in the Rights Certificates or be required to verify
the same (except as to its countersignature on such Rights
Certificates), but all such statements and recitals are and shall
be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility
in respect of the validity of this Agreement or the execution and
delivery hereof (except the due execution hereof by the Rights
Agent) or in respect of the validity or execution of any Rights
Certificate (except its countersignature thereof); nor shall it
be responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Rights
Certificate; nor shall it be responsible for any adjustment
required under the provisions of Section 11 or Section 13 hereof
or responsible for the manner, method or amount of any such
adjustment or the ascertaining of the existence of facts that
would require any such adjustment (except with respect to the
exercise of Rights evidenced by Rights Certificates after receipt
of a certificate describing any such adjustment furnished in
accordance with Section 12); 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 to be
issued pursuant to this Agreement or any Rights Certificate or as
to whether any shares of Common 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 President, any Vice President, the Clerk, any
Assistant Clerk, the Treasurer or any Assistant Treasurer of the
Company, and to apply to such officers for advice or instructions
in connection with its duties, and it shall not be liable for any
action taken or suffered to be taken by it in good faith in
accordance with instructions of any such officer. Any
application by the Rights Agent for written instructions from the
Company may, at the option of the Rights Agent, set forth in
writing any action proposed to be taken or omitted by the Rights
Agent under this Rights Agreement and the date on or after which
such action shall be taken or such omission shall be effective.
The Rights Agent shall not be liable for any action by, or
omission of, the Rights Agent in accordance with a proposal
included in any such application on or after the date specified
therein (which date shall not be less than five Business Days
after the date any such officer actually receives such
application, unless any such officer shall have consented in
writing to an earlier date) unless, prior to taking any such
action (or the effective date in the case of an omission), the
Rights Agent shall have received written instructions in response
to such application specifying the action to be taken or omitted.
(h) The Rights Agent and any stockholder, director,
officer or employee of the Rights Agent may buy, sell or deal in
any of the Rights or other securities of the Company or become
pecuniarily interested in any transaction in which the Company
may be interested, or
<PAGE>
contract with or lend money to the Company or otherwise act as fully
and freely as though it were not Rights Agent under this Agreement.
Nothing herein shall preclude the Rights Agent from acting in any
other capacity for the Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or agents,
and the Rights Agent shall not be answerable or accountable for
any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any such
act, default, neglect or misconduct; provided, however,
reasonable care was exercised in the selection and continued
employment thereof.
(j) No provision of this Agreement shall require the
Rights Agent to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties
hereunder or in the exercise of its rights if there shall be
reasonable grounds for believing that repayment of such funds or
adequate indemnification against such risk or liability is not
reasonably assured to it.
(k) If, with respect to any Rights Certificate surrendered
to the Rights Agent for exercise or transfer, the certificate
contained in the form of assignment or the form of election to
purchase set forth on the reverse thereof, as the case may be,
has either not been completed or indicates an affirmative
response to clause 1 or 2 thereof, the Rights Agent shall not
take any further action with respect to such requested exercise
of transfer without first consulting with the Company.
Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its
duties under this Agreement upon thirty (30) days' notice in
writing mailed to the Company, and to each transfer agent of the
Common Stock, by registered or certified mail, and to the holders
of the Rights Certificates by first-class mail. The Company may
remove the Rights Agent or any successor Rights Agent upon thirty
(30) days' notice in writing, mailed to the Rights Agent or
successor Rights Agent, as the case may be, and to each transfer
agent of the Common Stock, by registered or certified mail, and
to the holders of the Rights Certificates by first-class mail.
If the Rights Agent shall resign or be removed or shall otherwise
become incapable of acting, the Company shall appoint a successor
to the Rights Agent. If the Company shall fail to make such
appointment within a period of thirty (30) days after giving
notice of such removal or after it has been notified in writing
of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by any registered holder of a
Rights Certificate (who shall, with such notice, submit his
Rights Certificate for inspection by the Company), then any
registered holder of any Rights Certificate may apply to any
court of competent jurisdiction for the appointment of a new
Rights Agent. Any successor Rights Agent, whether appointed by
the Company or by such a court, shall be (a) a corporation
organized and doing business under the laws of the United States
or of any other state of the United States in good standing,
which is authorized under such laws to exercise corporate trust
or stock transfer powers and is subject to supervision or
examination by federal or state authority and which has at the
time of its appointment as Rights Agent a combined capital and
surplus of at least $50,000,000 or (b) an affiliate of a
corporation described in clause (a) of this sentence. After
appointment, the successor Rights Agent shall be vested with the
same powers, rights, duties and responsibilities as if it had
been originally named as Rights Agent without further act or
deed; but the predecessor Rights Agent shall deliver and
<PAGE>
transfer to the successor Rights Agent any property at the
time held by it hereunder, and execute and deliver any further
assurance, conveyance, act or deed necessary for the purpose.
Not later than the effective date of any such appointment, the
Company shall file notice thereof in writing with the predecessor Rights
Agent and each transfer agent of the Common Stock, and mail a
notice thereof in writing to the registered holders of the Rights
Certificates. Failure to give any notice provided for in this
Section 21, however, or any defect therein, shall not affect the
legality or validity of the 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 the Board 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 (other than upon
exercise of a Right) 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, or upon the
exercise, conversion or exchange of securities, notes, warrants
or debentures issued by the Company, and (b) may, in any other
case, if deemed necessary or appropriate by the Board, 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 may, at its option, at any time prior to the
earlier of (i) the Close of Business on the tenth day following
the Stock Acquisition Date (or, if the Stock Acquisition Date
shall have occurred prior to the Record Date, the close of
business on the tenth day following the Record Date), or (ii) the
Expiration Date, redeem all but not less than all of 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"); provided, however, that the Board may
not redeem any Rights following an Adverse Person Event and
provided, further, that if the Board authorizes redemption of the
Rights in either of the circumstances set forth in clauses
(i) and (ii) below, then there must be Continuing Directors then
in office and such authorization shall require the concurrence of
a majority of such Continuing Directors: (i) such authorization
occurs on or after the time a Person becomes an Acquiring Person,
or (ii) such authorization occurs on or after the date of a
change (resulting from a proxy or consent solicitation effected
in compliance with applicable law and the requirements of any
national securities exchange or trading market on which the
Common Stock is listed) in a majority of the directors in office
at the commencement of such solicitation if any Person who is a
participant in such solicitation has stated (or, if upon the
commencement of such solicitation, a majority of the Board has
determined in good faith) that such Person (or
<PAGE>
any of its Affiliates or Associates) intends to take, or may consider
taking, any action which would result in such Person becoming an
Acquiring Person or which would cause the occurrence of a
Triggering Event unless, concurrent with such solicitation, such
Person (or one or more of its Affiliates or Associates) is making
a cash tender offer pursuant to a Schedule 14D-1 (or any
successor form) filed with the Securities and Exchange Commission
for all outstanding shares of Common Stock not beneficially owned
by such Person (or by its Affiliates or Associates). If,
following the occurrence of a Stock Acquisition Date and
following the expiration of the right of redemption set forth in
the preceding sentence but prior to any Triggering Event, (i) a
Person who was an Acquiring Person shall have transferred or
otherwise disposed of a number of shares of Common Stock in one
or more transactions, not directly or indirectly involving the
Company or any of its Subsidiaries, which did not result in the
occurrence of a Triggering Event such that such Person is
thereafter a Beneficial Owner of 10% or less of the outstanding
shares of Common Stock, and (ii) there are no other Persons,
immediately following the occurrence of the event described in
clause (i), who are Acquiring Persons, and (iii) the Board (with
the concurrence of a majority of the Continuing Directors) shall
so approve, then the Company's right of redemption set forth in
the preceding sentence shall be reinstated and thereafter be
subject to the provisions of this Section 23. If following the
occurrence of a Stock Acquisition Date and following the
expiration of the right of redemption set forth in the first
sentence hereof, but prior to any Triggering Event, the Board
may, at its option, redeem all but not less than all the then
outstanding Rights at the Redemption Price, provided that
(i) such redemption is effected in connection with the approval
by the Board of Directors of the Company of, and the execution
and delivery by the Company of an agreement providing for, a
merger, consolidation, sale or transfer of all or substantially
all of the assets of the Company or other business combination,
in each case which involves the Company but does not involve an
Acquiring Person or an Affiliate or Associate of an Acquiring
Person or any other Person acting directly or indirectly on
behalf of or in association with any such Acquiring Person,
Affiliate or Associate and (ii) such redemption is approved by a
majority of the Continuing Directors. Notwithstanding anything
contained in this Agreement to the contrary, the Rights shall not
be exercisable after the first occurrence of a Section 11(a)(ii)
Event until such time as the Company's right of redemption set
forth in the first sentence of this Section 23(a) has expired.
(b) The Company may, at its option, pay the Redemption
Price in cash, shares of Common Stock (based on the Current
Market Price as defined in Section 11(d) hereof, of the Common
Stock at the time of redemption) or any other form of
consideration deemed appropriate by the Board.
(c) Immediately upon the action of the Board 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
<PAGE>
notice. Each such notice of the redemption will state the method
by which the payment of the Redemption Price will be made.
Section 24. Notice of Certain Events.
(a) In case the Company shall propose, at any time after
the Distribution Date, (i) to pay any dividend payable in stock
of any class to the holders of Common Stock or to make any other
distribution to the holders of Common Stock (other than a regular
quarterly cash dividend out of earnings or retained earnings of
the Company), or (ii) to offer to the holders of Common Stock
rights or warrants to subscribe for or to purchase any additional
shares of Common Stock or shares of stock of any class or any
other securities, rights or options, or (iii) to effect any
reclassification of its Common Stock (other than a
reclassification involving only the subdivision of outstanding
shares of Common Stock), or (iv) to effect any 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 or any of its
Subsidiaries in one or more transactions each of which complies
with Section 11(o) hereof), or (v) to effect the liquidation,
dissolution or winding up of the Company, then, in each such
case, the Company shall give to each holder of a Rights
Certificate, to the extent feasible, in accordance with
Section 25 hereof, a notice of such proposed action, which shall
specify the record date for the purposes of such stock dividend
or distribution of rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution, or winding up is to take place and the
date of participation therein by the holders of the shares of
Common Stock, if any such date is to be fixed, and such notice
shall be so given in the case of any action covered by clause (i)
or (ii) above at least twenty (20) days prior to the record date
for determining holders of the shares of Common Stock for
purposes of such action, and in the case of any such other
action, at least twenty (20) days prior to the date of the taking
of such proposed action or the date of participation therein by
the holders of the shares of Common Stock, whichever shall be the
earlier.
(b) In case any Section 11(a)(ii) Event shall occur, then,
in any such case, (i) the Company shall as soon as practicable
thereafter give to each holder of a Rights Certificate, to the
extent feasible, and in accordance with Section 25 hereof, a
notice of the occurrence of such event, which shall specify the
event and the consequences of the event to holders of Rights
under Section 11(a)(ii) hereof and (ii) all references in the
preceding paragraph to Common Stock shall, to the extent
appropriate, also be deemed thereafter to refer to other
securities.
Section 25. 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:
Hadco Corporation
12A Manor Parkway
Salem, NH 03079
<PAGE>
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:
The First National Bank of Boston
150 Royall Street, Mail Stop 45-02-62
Canton, MA 02021
Attention: Shareholder Services Division
Notices or demands authorized by this Agreement to be given or
made by the Company or the Rights Agent to the holder of any
Rights Certificate (or, if 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 26. Exchange. (a) At any time after any Person
becomes an Acquiring Person or an Adverse Person, a majority of
the Continuing Directors may, at their option, exchange all or
part of the then outstanding and exercisable Rights (which
(i) shall not include Rights that have become void pursuant to
Section 7(e) and (ii) shall include, without limitation, any
Rights issued after the Distribution Date in connection with the
exercise of options pursuant to any employee benefit plan of the
Company or any Subsidiary of the Company) for shares of Common
Stock at an exchange ratio of one share of Common Stock per
Right, appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof
(such exchange ratio being hereinafter referred to as the
"Exchange Ratio"). Notwithstanding the foregoing, the Board of
Directors shall not be empowered to effect such exchange at any
time after any Person (other than the Company, any of its
Subsidiaries, any employee benefit plan of the Company or any of
its Subsidiaries or any Person organized, appointed or
established by the Company or any of its Subsidiaries for or
pursuant to the terms of any such plan or any Exempt Person),
together with all Affiliates and Associates of such Person,
becomes the Beneficial Owner of 50% or more of the shares of
Common Stock then outstanding.
(b) Immediately upon the action of the Continuing
Directors electing to exchange any Rights pursuant to
Section 26(a) and without any further action and without any
notice, the right to exercise such Rights will terminate and
thereafter the only right of a holder of such Rights shall be to
receive that number of shares of Common Stock equal to the number
of such Rights held by such holder multiplied by the Exchange
Ratio. The Company shall promptly thereafter give notice of such
exchange to the Rights Agent and the holders of the Rights to be
exchanged in the manner set forth in Section 25; provided,
however, that the failure to give, or any defect in, such notice
shall not affect the validity of such exchange. Any notice which
is mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. Each such notice
of exchange will state the method by which the exchange of the
shares of Common Stock 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
<PAGE>
effected pro rata based on the number of Rights (other than Rights
which have become void pursuant to Section 7(e)) held by each holder
of Rights.
(c) In any exchange pursuant to this Section 26, the
Company, at its option, may substitute Common Stock Equivalents
(as defined in Section 11(a)(iii)) for shares of Common Stock
exchangeable for Rights, at the initial rate of one Common Stock
Equivalent for each share of Common Stock, as appropriately
adjusted to reflect adjustments in dividend, liquidation and
voting rights of Common Stock Equivalents pursuant to the terms
thereof, so that each Common Stock Equivalent delivered in lieu
of each share of Common Stock shall have essentially the same
dividend, liquidation and voting rights as one share of Common
Stock.
(d) In the event that the number of shares of Common Stock
which are authorized by the Company's Articles of Organization,
as amended, but not outstanding or reserved for issuance are not
sufficient to permit an exchange of Rights as contemplated by
this Section 26, the Company shall take all such action as may be
necessary to authorize additional shares of Common Stock for
issuance upon exchange of the Rights.
(e) The Company shall not be required to issue fractions
of shares of Common Stock or to distribute certificates that
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 with regard to which
such fractional shares of Common Stock would otherwise be
issuable, an amount in cash equal to the same fraction of the
current market value of a whole share of Common Stock. For
purposes of this Section 26(e), the current market value of a
whole share of Common Stock shall be the closing price per share
of Common Stock (determined pursuant to Section 11(d) hereof) on
the Trading Day immediately prior to the date of exchange
pursuant to this Section 26.
Section 27. Supplements and Amendments. At any time prior to
the Final Amendment Date, and subject to the penultimate sentence
of this Section 27, the Company and the Rights Agent shall, if
the Company so directs, supplement or amend any provision of this
Agreement without the approval of any holders of certificates
representing shares of Common Stock. From and after the Final
Amendment Date and subject to the penultimate sentence of this
Section 27, the Company and the Rights Agent shall, if the
Company so directs, supplement or amend this Agreement without
the approval of any holders of Rights Certificates in order
(i) to cure any ambiguity, (ii) to correct or supplement any
provision contained herein which may be defective or inconsistent
with any other provisions herein, (iii) to shorten or lengthen
any time period hereunder or (iv) to change or supplement the
provisions hereunder in any manner which the Company may deem
necessary or desirable and which shall not adversely affect the
interests of the holders of Rights Certificates (other than an
Acquiring Person, an Adverse Person or an Affiliate or Associate
of such Person); provided, however, that this Agreement may not
be supplemented or amended, (A) whether before or after the
Final Amendment Date, to lengthen a time period relating to when
the Rights may be redeemed or to modify the ability (or
inability) of the Continuing Directors to redeem the Rights, in
either case at such time as the Rights are not then redeemable or
(B) after the Final Amendment Date, to lengthen, pursuant to
clause (iii) of this sentence, any other time period unless such
lengthening is for the purpose of protecting, enhancing or
clarifying the rights of or the benefits to the holders of Rights
(other than any Acquiring Person, an Adverse Person or an
Associate or Affiliate of
<PAGE>
such Person). Upon the delivery of a certificate from an appropriate
officer of the Company which states that the proposed supplement or
amendment is in compliance with the terms of this Section 27, the Rights
Agent shall execute such supplement or amendment. Notwithstanding
anything contained in this Agreement to the contrary, no supplement
or amendment shall be made which changes the Redemption Price, the Final
Expiration Date, the Purchase Price or the number of shares of
Common Stock for which a Right is exercisable. 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 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 provisions of the last sentence of Rule 13d-
3(d)(l)(i) of the General Rules and Regulations under the
Exchange Act. The Board (with, where specifically provided for
herein, the concurrence of the Continuing Directors) shall have
the exclusive power and authority to administer this Agreement
and to exercise all rights and powers specifically granted to the
Board (with, where specifically provided for herein, the
concurrence of the Continuing Directors) or to the Company, or as
may be necessary or advisable in the administration of this
Agreement, including, without limitation, the right and power to
(i) interpret the provisions of this Agreement, and (ii) make all
determinations deemed necessary or advisable for the
administration of this Agreement (including a determination to
redeem or not redeem the Rights, to declare that a Person is an
Adverse Person or to amend the Agreement). All such actions,
calculations, interpretations and determinations (including, for
purposes of clause (y) below, all omissions with respect to the
foregoing) which are done or made by the Board (with, where
specifically provided for herein, the concurrence of the
Continuing Directors) in good faith, shall (x) be final,
conclusive and binding on the Company, the Rights Agent, the
holders of the Rights and all other parties, and (y) not subject
any member of the Board of Directors of the Company 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
<PAGE>
to be invalid, void or unenforceable and the Continuing Directors
determine in their good faith judgment that severing the invalid
language from this Agreement would materially and 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 Continuing Directors. Without limiting the
foregoing, if any provision requiring that a determination made
by less than the entire Board is held by a court of competent
jurisdiction or other authority to be invalid, void or
unenforceable, such determination shall then be made by the
entire Board.
Section 32. Governing Law. This Agreement, each Right and
each Rights Certificate issued hereunder shall be deemed to be a
contract made under the laws of the Commonwealth of Massachusetts
and for all purposes shall be governed by and construed in
accordance with the laws of such Commonwealth applicable to
contracts made and to be performed entirely within such
Commonwealth.
Section 33. Counterparts. This Agreement may be executed in
any number of counterparts and each of such counterparts shall
for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
Section 34. Descriptive Headings. Descriptive headings of
the several Sections of this Agreement are inserted for
convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
Attest: HADCO CORPORATION
By: /s/ James C. Hamilton By: /s/ Timothy P. Losik
Name: James C. Hamilton Name: Timothy P. Losik
Title: Clerk Title: Chief Financial Officer
Attest: THE FIRST NATIONAL BANK OF BOSTON
By: /s/ James T. Mitchell By: /s/ Colleen H. Shea
Name: James T. Mitchell Name: Colleen H. Shea
Title: Senior Account Manager Title: Administration Manager
<PAGE>
EXHIBIT A
[Form of Rights Certificate]
Certificate No. R- __________ Rights
NOT EXERCISABLE AFTER September 11, 2005 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, AN ADVERSE PERSON OR
AN AFFILIATE OR ASSOCIATE OF 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 SHALL NOT BE EXERCISABLE, AND SHALL BE VOID SO LONG AS
HELD, BY A HOLDER IN ANY JURISDICTION WHERE THE REQUISITE
QUALIFICATION TO THE ISSUANCE TO SUCH HOLDER, OR THE EXERCISE BY
SUCH HOLDER, OF THE RIGHTS IN SUCH JURISDICTION SHALL NOT HAVE
BEEN OBTAINED OR BE OBTAINABLE. THE RIGHTS REPRESENTED BY THIS
RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO
WAS OR BECAME AN ACQUIRING PERSON, AN ADVERSE PERSON OR AN
AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON OR ADVERSE PERSON
(AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT).
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.]*
Rights Certificate
HADCO CORPORATION
This Rights Certificate certifies that _________, or
registered assigns, is the registered holder of the number of
Rights set forth above, each of which entitles the holder
thereof, subject to the terms, provisions and conditions of the
Rights Agreement, dated as of August 22, 1995 (the "Rights
Agreement"), between Hadco Corporation, a Massachusetts
corporation (the "Company"), and The First National Bank of
Boston, a national banking association (the "Rights Agent"), to
purchase from the Company after the Distribution Date (as such
term is defined in the Rights Agreement) and at any time prior to
the Expiration Date (as such term is defined in the Rights
Agreement) at the office or offices of the Rights Agent
designated for such purpose, or its successors as Rights Agent,
one fully paid and nonassessable share of
* If applicable, insert this portion of the legend and delete
preceding sentence. Common Stock (the "Common Stock") of the
Company, at a purchase price of $130 per share (the "Purchase Price"),
upon presentation and surrender of this Rights Certificate with the
Form of Election to Purchase and related Certificate duly executed. The
number of Rights evidenced by this Rights Certificate (and the
number of shares which may be purchased upon exercise
<PAGE>
thereof) set forth above, and the Purchase Price per share set forth
above, are the number and Purchase Price as of _______, ____,
based on the Common Stock as constituted at such date.
Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the
Rights Agreement.
All as more fully set forth in the Rights Agreement, upon
the occurrence of a Section 11(a)(ii) Event, if the Rights
evidenced by this Rights Certificate are beneficially owned by
(i) an Acquiring Person, an Adverse Person or an Affiliate or
Associate of an Acquiring Person or Adverse Person, (ii) a
transferee of an Acquiring Person or an Adverse Person (or of any
such Associate or Affiliate of an Acquiring Person or an Adverse
Person), or (iii) under certain circumstances specified in the
Rights Agreement, a transferee of a person who, after such
transfer, became an Acquiring Person or an Adverse Person (or an
Associate or Affiliate of an Acquiring Person or an Adverse
Person), such Rights shall become null and void and no holder
hereof shall have any right with respect to such Rights from and
after the occurrence of such Section 11(a)(ii) Event.
The Rights evidenced by this Rights Certificate shall not be
exercisable, and shall be void so long as held, by a holder in
any jurisdiction where the requisite qualification to the
issuance to such holder, or the exercise by such holder, of the
Rights in such jurisdiction shall not have been obtained or be
obtainable.
As provided in the Rights Agreement, the Purchase Price and
the number and kind of shares of Common Stock or other securities
which may be purchased upon the exercise of the Rights evidenced
by this Rights Certificate are subject to modification and
adjustment upon the happening of certain events, including
Triggering Events.
This Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Agreement
reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent, the Company and the holders of the
Rights Certificates, which limitations of rights include the
temporary suspension of the exercisability of such Rights under
the specific circumstances set forth in the Rights Agreement.
Copies of the Rights Agreement are on file at the office of the
Company and are also available upon written request to the
Company.
This Rights Certificate, with or without other Rights
Certificates, upon surrender at the principal 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 shares of Common Stock as the Rights
evidenced by the Rights Certificate or Rights Certificates
surrendered shall have entitled such holder to purchase. If this
Rights Certificate shall be exercised in part, the holder shall
be entitled to receive upon surrender hereof another Rights
Certificate or Rights Certificates for the number of whole Rights
not exercised.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate may (unless the Continuing
Directors shall have made a determination that a Person is an
Adverse Person) be redeemed by the Company at its option at a
redemption price of $0.01
<PAGE>
per Right at any time prior to the earlier of (i) the close of
business on the tenth day following the Stock Acquisition Date (or,
if the Stock Acquisition Date shall have occurred prior to the Record
Date, the close of business on the tenth day following the Record
Date), and (ii) the Expiration Date. Under certain circumstances
set forth in the Rights Agreement, the decision to redeem shall
require the concurrence of a majority of the Continuing Directors.
After the expiration of the redemption period, the Company's right of
redemption may be reinstated if an Acquiring Person reduces his
beneficial ownership to 10% or less of the outstanding shares of
Common Stock in a transaction or series of transactions not
involving the Company and such reinstatement is approved by the
Company's Board of Directors (with the concurrence of a majority
of the Continuing Directors).
No fractional shares of Common Stock will be issued upon the
exercise of any Right or Rights evidenced hereby (other than
fractions which are integral-multiples of one share of Common
Stock), but in lieu thereof a cash payment will be made, as
provided in the Rights Agreement.
No holder of this Rights Certificate shall be entitled to
vote or receive dividends or be deemed for any purpose the holder
of shares of Common Stock or of any other securities of the
Company which may at any time be issuable on the exercise hereof,
nor shall anything contained in the Rights Agreement or herein be
construed to confer upon the holder hereof, as such, any of the
rights of a 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.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed under its corporate seal by its authorized
officers.
Dated:
ATTEST: HADCO CORPORATION
__________________________ By:___________________________
Clerk President
__________________________ By:___________________________
Clerk Treasurer
Countersigned:
THE FIRST NATIONAL BANK OF BOSTON
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.)
FOR VALUE RECEIVED _____________________________________________
hereby sells, assigns and transfers unto
________________________________________________________________
________________________________________________________________
(Please print name and address of transferee)
this Rights Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and
appoint ____________ Attorney, to transfer the within Rights
Certificate on the books of the within-named Company, with full
power of substitution.
Dated:
______________________________
Signature
Signature Guaranteed:
<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, an Adverse Person or an Affiliate or
Associate of an Acquiring Person or an 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, an Adverse Person or an
Affiliate or Associate of an Acquiring Person or an Adverse
Person.
Dated:
______________________________
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment and Certificate
must correspond to the name as written upon the face of this
Rights Certificate in every particular, without alteration or
enlargement or any change whatsoever.
<PAGE>
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise Rights represented by the
Rights Certificate.)
To: HADCO CORPORATION:
The undersigned hereby irrevocably elects to exercise ______
Rights represented by this Rights Certificate to purchase the
shares of Common Stock issuable upon the exercise of the Rights
(or such other securities of the Company or of any other person
which may be issuable upon the exercise of the Rights) and
requests that certificates for such shares be issued in the name
of and delivered to:
Please insert social security
or other identifying number
________________________________________________________________
________________________________________________________________
(Please print name and address)
If such number of Rights shall not be all the Rights
evidenced by this Rights Certificate, a new Rights Certificate
for the balance of such Rights shall be registered in the name of
and delivered to:
Please insert social security
or other identifying number
________________________________________________________________
________________________________________________________________
(Please print name and address)
Dated:
______________________________
Signature
Signature Guaranteed:
<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, an Adverse Person or an Affiliate or
Associate of an Acquiring Person or an 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, an Adverse Person or an
Affiliate or Associate of an Acquiring Person or an Adverse
Person.
Dated: ______________________________
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Election to Purchase and
Certificate must correspond to the name as written upon the face
of this Rights Certificate in every particular, without
alteration or enlargement or any change whatsoever.
<PAGE>
EXHIBIT B
SUMMARY OF RIGHTS
On August 22, 1995, the Board of Directors of Hadco
Corporation (the "Company") declared a dividend distribution of
one Right for each outstanding share of Common Stock of the
Company to stockholders of record at the close of business on
September 11, 1995. Each Right entitles the registered holder to
initially purchase from the Company one share of Common Stock at
a purchase price of $130, subject to adjustment (the "Purchase
Price"). The description and terms of the Rights are set forth
in a Rights Agreement (the "Rights Agreement") between the
Company and The First National Bank of Boston, as Rights Agent.
Initially, the Rights will be attached to all Common Stock
certificates representing shares then outstanding, and no
separate Rights Certificates will be distributed. The Rights
will separate from the Common Stock and a Distribution Date will
occur upon the earlier of (i) 10 days following a public
announcement that a person or group of affiliated or associated
persons (an "Acquiring Person") has acquired, or obtained the
right to acquire, beneficial ownership of more than 20%
(exempting shares of Horace H. Irvine II, founder and currently
Chairman of the Board of the Company, and certain related persons
and trusts) of the outstanding shares of Common Stock (the "Stock
Acquisition Date"), (ii) 10 business days following the
commencement of a tender offer or exchange offer that may result
in a person or group beneficially owning 25% or more of such
outstanding shares of Common Stock or (iii) 10 business days
after the Continuing Directors (as defined below) 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 become the Beneficial Owner of an
amount of Common Stock which the Continuing Directors determine
to be substantial (which amount shall in no event be less than
10% of the shares of Common Stock then outstanding) and a
majority of the Continuing Directors (with the concurrence of a
majority of the Independent Directors (as defined below))
determines, after reasonable inquiry and investigation, including
consultation with such persons as such directors shall deem
appropriate, that (a) such beneficial ownership by such person is
intended to cause the Company to repurchase the Common Stock
beneficially owned by such person or to cause pressure on the
Company to take action or enter into a transaction or series of
transactions intended to provide such person with short-term
financial gain under circumstances where such directors determine
that the best long-term interests of the Company and its
stockholders (taking into account any impact on the national
security of the United States or the impact on any constituency
which applicable law permits directors to consider in discharging
their fiduciary duty) 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.
<PAGE>
Until the Distribution Date, (i) the Rights will be evidenced
by the Common Stock certificates and will be transferred with and
only with such Common Stock certificates, (ii) new Common Stock
certificates issued after September 11, 1995 will contain a
notation incorporating the Rights Agreement by reference and
(iii) the surrender for transfer of any certificates for Common
Stock outstanding will also constitute the transfer of the Rights
associated with the Common Stock represented by such certificate.
Pursuant to the Rights Agreement, the Company reserves the right
to require that, upon any exercise of Rights, a number of Rights
may be exercised so that only whole shares of Common Stock will
be issued.
The Rights are not exercisable until the Distribution Date and
will expire at the close of business on September 11, 2005 unless
earlier redeemed by the Company as described below.
As soon as practicable after the Distribution Date, Rights
Certificates will be mailed to holders of record of the Common
Stock as of the close of business on the Distribution Date and,
thereafter, the separate Rights Certificates alone will represent
the Rights. Except as otherwise determined by the Board of
Directors and except in connection with shares of Common Stock
issued upon the exercise of employee stock options, issuances
under other employee stock benefit plans or upon the conversion
of convertible securities issued hereafter, only shares of Common
Stock issued prior to the Distribution Date will be issued with
Rights.
In the event that the Continuing Directors determine that a
person is an Adverse Person or, at any time following the
Distribution Date, (i) the Company is the surviving corporation
in a merger with an Acquiring Person and its Common Stock is not
changed or exchanged, (ii) a Person becomes the beneficial owner
of more than 25% of the then outstanding shares of Common Stock
(except pursuant to an offer for all outstanding shares of Common
Stock which the Independent Directors determine to be fair to and
otherwise in the best interests of the Company and its
stockholders), (iii) an Acquiring Person engages in one or more
"self-dealing" transactions as set forth in the Rights Agreement,
or (iv) during such time as there is an Acquiring Person, an
event occurs which results in such Acquiring Person's ownership
interest being increased by more than 1% (e.g., a reverse stock
split), each holder of a Right will thereafter have the right to
receive, upon exercise, Common Stock (or, in certain
circumstances, cash, property or other securities of the Company)
having a value equal to two times the exercise price of the
Right, or a majority of the Continuing Directors may exchange one
share of Common Stock for each Right. However, Rights are not
exercisable following the occurrence of the events set forth in
clauses (i) through (iv) above until such time as the Rights are
no longer redeemable by the Company as set forth below.
Notwithstanding any of the foregoing, following the occurrence of
any of the events set forth in this paragraph, all Rights that
are, or (under certain circumstances specified in the Rights
Agreement) were, beneficially owned by an Acquiring Person or an
Adverse Person will be null and void. The events set forth in
this paragraph will be referred to as "Section 11(a)(ii) Events."
For example, at an exercise price of $130 per Right, each
Right not owned by an Acquiring Person or an Adverse Person (or
by certain related parties) following an event set forth in the
preceding paragraph would entitle its holder to purchase $260
worth of Common Stock (or other consideration, as noted above)
for $130. Assuming that the Common Stock has a per share value
of $26 at such time, the holder of each valid Right would be
entitled to purchase 10 shares of Common Stock for $130.
<PAGE>
In the event that, at any time following the Stock Acquisition
Date, (i) the Company is acquired in a merger or other business
combination transaction in which the Company is not the surviving
corporation (other than a merger described in the second
preceding paragraph or a merger which follows an offer determined
to be fair or otherwise in the best interests of the Company and
its stockholders described in clause (ii) of the second preceding
paragraph), or (ii) more than 50% of the Company's assets or
earning power is sold or transferred, each holder of a Right
(except Rights which previously have been voided as set forth
above) shall thereafter have the right to receive, upon exercise,
common stock of the acquiring company having a value equal to two
times the exercise price of the Right. The events set forth in
this paragraph and in the second preceding paragraph are referred
to as the "Triggering Events."
At any time after a person becomes an Acquiring Person or an
Adverse Person, a majority of the Continuing Directors may
exchange the Rights (other than Rights owned by an Acquiring
Person or Adverse Person which have become void), in whole or in
part, at an exchange ratio of one share of Common Stock, or one
Common Stock Equivalent (as defined in the Rights Agreement, per
Right (subject to adjustment).
The Purchase Price payable, and the number of shares of Common
Stock or other securities or property issuable, upon exercise of
the Rights are subject to adjustment from time to time to prevent
dilution (i) in the event of a stock dividend on, or a
subdivision, combination or reclassification of, the Common
Stock, (ii) if holders of the Common Stock are granted certain
rights or warrants to subscribe for Common Stock or convertible
securities at less than the current market price of the Common
Stock, or (iii) upon the distribution to holders of the Common
Stock of evidences of indebtedness or assets (excluding regular
quarterly or other periodic cash dividends) or of subscription
rights or warrants (other than those referred to above).
With certain exceptions, no adjustment in the Purchase Price
will be required until cumulative adjustments amount to at least
1% of the Purchase Price. No fractional shares of Common Stock
will be issued and, in lieu thereof, an adjustment in cash will
be made based on the market price of the Common Stock on the last
trading date prior to the date of exercise.
In general, the Company may redeem the Rights in whole, but
not in part, at any time until ten days following the Stock
Acquisition Date, at a price of $0.01 per Right (payable in cash,
Common Stock or other consideration deemed appropriate by the
Board of Directors). Under certain circumstances set forth in
the Rights Agreement, the decision to redeem shall require the
concurrence of a majority of the Continuing Directors. The
Company may not redeem the Rights if the Continuing Directors
have previously declared a person to be an Adverse Person. After
the redemption period has expired, the Company's right of
redemption may be reinstated if either (i) an Acquiring Person
reduces its beneficial ownership to less than 10% of the
outstanding shares of Common Stock in a transaction or a series
of transactions not involving the Company or (ii) the Board
approves the merger of the Company with, or acquisition of the
Company by, a Person unrelated to the Acquiring Person.
Immediately upon the action of the Board of Directors ordering
redemption of the Rights, with, where required, the concurrence
of the Continuing Directors, the Rights will terminate and the
only right of the holders of Rights will be to receive the
$0.01 per Right redemption price.
<PAGE>
The term "Continuing Directors" means any member of the Board
of Directors of the Company who was a member of the Board on the
date of the Rights Agreement, and any person who is subsequently
elected to the Board if such person is recommended or approved by
a majority of the Continuing Directors, but shall not include an
Acquiring Person, an Adverse Person or an affiliate or associate
of an Acquiring Person or an Adverse Person, or any
representative of the foregoing entities. The term "Independent
Directors" means Continuing Directors who are not executive
officers of the Company.
Until a Right is exercised, the holder thereof, as such, will
have no rights as a stockholder of the Company, including,
without limitation, the right to vote or to receive dividends.
While the distribution of the Rights will not be taxable to
stockholders or to the Company, stockholders may, depending upon
the circumstances, recognize taxable income in the event that the
Rights become exercisable for Common Stock (or other
consideration) of the Company or for common stock of the
acquiring company as set forth above.
Other than those provisions relating to the principal economic
terms of the Rights, any of the provisions of the Rights
Agreement may be amended by the Board of Directors of the Company
prior to the earlier to occur of the determination that a person
is an Adverse Person or the Distribution Date. After the earlier
of such events, the provisions of the Rights Agreement may be
amended by the Board (in certain circumstances, with the
concurrence of the Continuing Directors) in order to cure any
ambiguity, to make changes which do not adversely affect the
interests of holders of Rights (excluding the interests of any
Acquiring Person or any Adverse Person), or to shorten or
lengthen any time period under the Rights Agreement; provided,
however, that no amendment to adjust the time period governing
redemption shall be made at such time as the Rights are not
redeemable.
A copy of the Rights Agreement has been filed with the
Securities and Exchange Commission as an Exhibit to a
Registration Statement on Form 8-A dated August 22,1995. A copy
of the Rights Agreement is available free of charge from the
Company. This summary description of the Rights does not purport
to be complete and is qualified in its entirety by reference to
the Rights Agreement, which is incorporated herein by reference.
