SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
For Registration of Certain Classes of Securities
Pursuant to Section 12(b) or 12(g) of the
Securities Exchange Act of 1934
WASHINGTON TRUST BANCORP, INC.
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(Exact Name Of Registrant As Specified In Its Charter)
RHODE ISLAND 05-0404671
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(State of Incorporation) (I.R.S. Employer
Identification No.)
23 Broad Street, Westerly, Rhode Island 02891
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(Address of Principal Executive Offices) (Zip Code)
If this Form relates to If this Form relates to
the registration of a the registration of a
class of debt securities class of debt securities
and is effective upon and is to become
filing pursuant to effective simultaneously
General Instruction with the effectiveness of
A(c)(1) please check the a concurrent registration
following box. [ ] 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 Which
To Be So Registered Each Class Is To Be Registered
None
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Securities to be registered pursuant to Section 12(g) of the Act:
Common Share Purchase Rights
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(Title of Class)
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(Title of Class)
<PAGE>
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be
Registered.
On August 15, 1996, the Board of Directors of Washington
Trust Bancorp, Inc. (the "Corporation") declared a dividend of
one common share purchase right (a "Right") for each outstanding
share of common stock, par value $0.0625 per share (the "Common
Shares") (the "Record Date") to the shareholders of record on
that date. Each Right entitles the registered holder to purchase
from the Corporation, one Common Share of the Corporation, at a
price of $120.00 per Common Share (the "Purchase Price"), subject
to adjustment. The description and terms of the Rights are set
forth in a Rights Agreement (the "Rights Agreement") between the
Corporation and The Washington Trust Company, as Rights Agent
(the "Rights Agent").
Until the earlier to occur of (i) 10 days following a public
announcement that a person or group of affiliated or associated
persons (an "Acquiring Person") has acquired beneficial ownership
of 15% or more of the outstanding Common Shares, or (ii) 10
business days (or such later date as may be determined by action
of the Board of Directors prior to such time as any Person
becomes an Acquiring Person) following the commencement of, or
announcement of an intention to make, a tender offer or exchange
offer the consummation of which would result in the beneficial
ownership by a person or group of 15% or more of such outstanding
Common Shares (the earlier of such dates being called the
"Distribution Date"), the Rights will be evidenced, with respect
to any of the Common Share certificates outstanding as of the
Record Date, by such Common Share certificate with a copy of this
Summary of Rights attached thereto.
The Agreement provides that, until the Distribution Date,
the Rights will be transferred with and only with the Common
Shares. Until the Distribution Date (or earlier redemption or
expiration of the Rights), new Common Share certificates issued
after the Record Date or upon transfer or new issuance of Common
Shares will contain a notation incorporating the Agreement by
reference. Until the Distribution Date (or earlier redemption or
expiration of the Rights), the surrender for transfer of any
certificates for Common Shares outstanding as of the Record Date,
even without such notation or a copy of this Summary of Rights
being attached thereto, will also constitute the transfer of the
Rights associated with the Common Shares represented by such
certificate. As soon as practicable following the Distribution
Date, separate certificates evidencing the Rights ("Right
Certificates") will be mailed to holders of record of the Common
Shares as of the Close of Business on the Distribution Date and
such separate Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date.
The Rights will expire on August 31, 2006 (the "Final Expiration
Date"), unless the Final Expiration Date is extended or unless
the Rights are earlier redeemed by the Corporation, in each case,
as described below.
The Purchase Price payable, and the number of Common Shares
or other securities or property issuable, upon exercise of the
Rights are subject to adjustment from time to time to prevent
dilution in the event of a stock dividend on, or a subdivision or
combination of, the Common Shares, in connection with a
distribution of securities or assets in respect of, in lieu of or
in exchange for Common Shares, whether by dividend, in a
reclassification or recapitalization or otherwise as set forth in
the Rights Agreement.
In the event that any person becomes an Acquiring Person,
proper provision shall be made so that each holder of a Right,
other than Rights beneficially owned by the Acquiring Person and
its Affiliates and Associates (which will thereafter be void),
will thereafter have the right to receive upon exercise that
number of Common Shares having a market value of two times the
exercise price of the Right.
In the event that, at any time after a Person becomes an
Acquiring Person, the Corporation is acquired in a merger or
other business combination transaction or 50% or more of its
consolidated assets or earning power are sold, proper provision
will be made so that each holder of a Right will thereafter have
the right to receive, upon the exercise thereof at the then
current exercise price of the Right, that number of shares of
common stock of the acquiring company which at the time of such
transaction will have a market value of two times the exercise
price of the Right.
If the Corporation does not have sufficient Common Shares to
satisfy such obligation to issue Common Shares, or if the Board
of Directors so elects, the Corporation shall deliver upon
payment of the exercise price of a Right an amount of cash or
securities equivalent in value to the Common Shares issuable upon
exercise of a Right; provided that, if the Corporation fails to
meet such obligation within 30 days following the later of (x)
the first occurrence of an event triggering the right to purchase
Common Shares and (y) the date on which the Corporation's right
to redeem the Rights expires, the Corporation must deliver, upon
exercise of a Right but without requiring payment of the exercise
price then in effect, Common Shares (to the extent available) and
cash equal in value to the difference between the value of the
Common Shares otherwise issuable upon the exercise of a Right and
the exercise price then in effect. The Board of Directors may
extend the 30-day period described above for up to an additional
60 days to permit the taking of action that may be necessary to
authorize sufficient additional Common Shares to permit the
issuance of Common Shares upon the exercise in full of the
Rights.
At any time after any Person becomes an Acquiring Person and
prior to the acquisition by any person or group of a majority of
the outstanding Common Shares, the Board of Directors of the
Corporation may exchange the Rights (other than Rights owned by
such person or group which have become void), in whole or in
part, at an exchange ratio of one Common Share per Right (subject
to adjustment).
With certain exceptions, no adjustment in the Purchase Price
will be required until cumulative adjustments require an
adjustment of at least 1% in such Purchase Price. No fractional
Common Shares are required to be issued. Fractional shares may,
at the election of the Corporation, be evidenced by depositary
receipts. In lieu of fractional shares, an adjustment in cash
will be made based on the market price of the Common Shares on
the last trading day prior to the date of exercise.
At any time prior to the time any Person becomes an
Acquiring Person, the Board of Directors of the Corporation may
redeem the Rights in whole, but not in part, at a price of $0.001
per Right (the "Redemption Price"). The redemption of the Rights
may be made effective at such time, on such basis and with such
conditions as the Board of Directors in its sole discretion may
establish. Immediately upon any redemption of the Rights, the
right to exercise the Rights will terminate and the only right of
the holders of Rights will be to receive the Redemption Price.
The terms of the Rights may be amended by the Board of
Directors of the Corporation without the consent of the holders
of the Rights, except that from and after such time as any person
becomes an Acquiring Person no such amendment may adversely
affect the interests of the holders of the Rights (other than the
Acquiring Person and its Affiliates and Associates).
Until a Right is exercised, the holder thereof, as such,
will have no rights as a shareholder of the Corporation,
including, without limitation, the right to vote or to receive
dividends.
The Agreement is attached hereto as an exhibit and is
incorporated herein by reference. This summary description of
the Rights does not purport to be complete and is qualified in
its entirety by reference to the Agreement.
Item 2. Exhibits.
1. Rights Agreement between the Registrant and The
Washington Trust Company dated as of August 15, 1996,
including Form of Rights Certificate attached as
Exhibit A thereto.
SIGNATURE
Pursuant to the requirements of Sections 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, thereunto duly authorized.
Dated: August 15, 1996 WASHINGTON TRUST BANCORP, INC.
By: Joseph J. Kirby
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Name: Joseph J. Kirby
Title: Chairman and Chief
Executive Officer
WASHINGTON TRUST BANCORP, INC.
and
THE WASHINGTON TRUST COMPANY
Rights Agent
Rights Agreement
Dated as of August 15, 1996.
TABLE OF CONTENTS
Section 1. Certain Definitions 1
Section 2. Appointment of Rights Agent 6
Section 3. Issue of Right Certificates 6
Section 4. Form of Right Certificates 9
Section 5. Countersignature and Registration 9
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen
Right Certificates 10
Section 7. Exercise of Rights; Purchase Price; Final Expiration
Date of Rights 11
Section 8. Cancellation and Destruction of Right Certificates 13
Section 9. Status of Common Shares 14
Section 10. Common Shares Record Date 14
Section 11. Adjustment of Purchase Price, Number of Shares or
Number of Rights 15
Section 12. Certificate of Adjustment 25
Section 13. Consolidation, Merger or Sale or Transfer of Assets
or Earning Power 25
Section 14. Fractional Rights and Fractional Shares 27
Section 15. Rights of Action 29
Section 16. Agreement of Right Holders 29
Section 17. Right Certificate Holder Not Deemed a Shareholder 30
Section 18. Concerning the Rights Agent 31
Section 19. Merger or Consolidation or Change of Name of Rights
Agent 31
Section 20. Duties of Rights Agent 32
Section 21. Change of Rights Agent 35
Section 22. Issuance of New Right Certificates 36
Section 23. Redemption 36
Section 24. Exchange 37
Section 25. Notice of Certain Events 39
Section 26. Notices 40
Section 27. Supplements and Amendments 41
Section 28. Successors 42
Section 29. Benefits of this Agreement 42
Section 30. Severability 42
Section 31. Governing Law 42
Section 32. Counterparts 42
Section 33. Descriptive Headings 43
Section 34. Administration 43
Exhibit A - Form of Right Certificate A-1
Exhibit B - Summary of Rights B-1
<PAGE>
RIGHTS AGREEMENT
Agreement, dated as of August 15, 1996, between Washington
Trust Bancorp, Inc., a Rhode Island corporation (the
"Corporation"), and The Washington Trust Company (the "Rights
Agent").
The Board of Directors of the Corporation has authorized and
declared a dividend of one common share purchase right (a
"Right") for each share of Common Stock, par value $0.0625 per
share, of the Corporation (a "Common Share") outstanding on the
close of business on September 3, 1996 (the "Record Date") and
has authorized the issuance of one Right with respect to each
additional Common Share that shall become outstanding between the
Record Date and the earlier of the Distribution Date, or the
Final Expiration Date (as such terms are defined herein), each
Right representing the right to purchase securities of the
Corporation as shall be hereinafter provided.
Accordingly, 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:
"Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall
be the Beneficial Owner of 15% or more of the Common Shares of
the Corporation then outstanding, but shall not include (i) the
Corporation, (ii) any Subsidiary of the Corporation, (iii) any
employee benefit plan of the Corporation or any Subsidiary of the
Corporation, or (iv) any entity holding Common Shares for or
pursuant to the terms of any such employee benefit plan.
Notwithstanding the foregoing, (1) no Person shall become an
"Acquiring Person" as the result of an acquisition of Common
Shares by the Corporation which, by reducing the number of shares
outstanding, increases the proportionate number of shares
beneficially owned by such Person to 15%, provided, however, that
if a Person shall so become the Beneficial Owner of 15% or more
of the Common Shares of the Corporation then outstanding by
reason of an acquisition of Common Shares by the Corporation and
shall, after such share purchases by the Corporation, become the
Beneficial Owner of an additional 1% of the outstanding Common
Shares of the Corporation, then such Person shall be deemed to be
an "Acquiring Person"; (2) if the Board of Directors of the
Corporation determines in good faith that a Person who would
otherwise be an "Acquiring Person," as defined pursuant to the
foregoing provisions of this paragraph, has become such
inadvertently, and such Person divests as promptly as practicable
a sufficient number of Common Shares so that such Person would no
longer be an "Acquiring Person," as defined pursuant to the
foregoing provisions of this paragraph, then such Person shall
not be deemed to have become an "Acquiring Person" for any
purposes of this Agreement; and (3) an underwriter or
underwriters which become the Beneficial Owner of 15% or more of
the Common Shares of the Corporation then outstanding in
connection with an underwritten public offering with a view to
the public distribution of such Common Shares shall not become an
"Acquiring Person" hereunder.
"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 (the "Exchange Act"), as in effect on the date of this
Agreement.
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 beneficially owns, directly or
indirectly;
(ii) which such Person or any of such Person's
Affiliates or Associates has (A) the right to acquire (whether
such right is exercisable immediately or only after the passage
of time) pursuant to any agreement, arrangement or understanding
(other than customary agreements with and between underwriters
and selling group members with respect to a bona fide public
offering of securities), written or otherwise, or upon the
exercise of conversion rights, exchange rights, rights (other
than the Rights), warrants or options, or otherwise; provided,
however, that a Person shall not be deemed to be the Beneficial
Owner of, or to beneficially own, securities tendered pursuant to
a tender or exchange offer made pursuant to, and in accordance
with, the applicable rules and regulations promulgated under the
Exchange Act by or on behalf of such Person or any of such
Person's Affiliates or Associates until such tendered securities
are accepted for purchase or exchange; or (B) the right to vote
pursuant to any agreement, arrangement or understanding;
provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, any security if the
agreement, arrangement or understanding to vote such security (1)
arises solely from a revocable proxy or consent given to such
Person in response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules and
regulations promulgated under the Exchange Act and (2) is not
also then reportable 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 with which such Person or any of
such Person's Affiliates or Associates has any agreement,
arrangement or understanding (other than customary agreements
with and between underwriters and selling group members with
respect to a bona fide public offering of securities), written or
otherwise, for the purpose of acquiring, holding, voting (except
to the extent contemplated by the proviso to section (B) of the
immediately preceding paragraph (ii)) or disposing of any
securities of the Corporation.
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
securities of the Corporation, 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.
"Business Day" shall mean any day other than a Saturday,
Sunday, or a day on which banking institutions in the State of
Rhode Island are authorized or obligated by law or executive
order to close.
"Close of Business" on any given date shall mean 5:00 P.M.,
Providence, Rhode Island time, on such date; provided, however,
that if such date is not a Business Day it shall mean 5:00 P.M.,
Providence, Rhode Island time, on the next succeeding Business
Day.
"Common Shares" when used with reference to the Corporation
shall mean the shares of common stock, par value $0.0625 per
share, of the Corporation. "Common Shares" when used with
reference to any Person other than the Corporation shall mean the
capital stock (or equity interest) with the greatest voting power
of such other Person or, if such other Person is a Subsidiary of
another Person, the Person or Persons which ultimately control
such first-mentioned Person.
"Common stock equivalents" shall have the meaning set forth
in Section 11(a)(iii)(B)(3).
"Current Value" shall have the meaning set forth in Section
11(a)(iii)(A)(1) hereof.
"Distribution Date" shall have the meaning set forth in
Section 3 hereof.
"Exchange Ratio" shall have the meaning set forth in Section
24(a).
"Final Expiration Date" shall mean August 31, 2006.
"Person" shall mean any individual, firm, corporation,
partnership, limited partnership, limited liability partnership,
business trust, limited liability company, unincorporated
association or other entity, and shall include any successor (by
merger or otherwise) of such entity.
"Purchase Price" shall have the meaning set forth in Section
7(b).
"Redemption Date" shall mean the date on which the Rights
are redeemed as provided in Section 23 hereof.
"Right Certificate" shall mean a certificate evidencing a
Right in substantially the form of Exhibit A hereto.
"Section 11(a)(ii) Trigger Date" shall have the meaning set
forth in Section 11(a)(iii) hereof.
"Shares Acquisition Date" shall mean the earlier of the date
of (i) the public announcement by the Corporation or an Acquiring
Person that an Acquiring Person has become such or (ii) the
public disclosure of facts by the Corporation or an Acquiring
Person indicating that an Acquiring Person has become such.
"Spread" shall have the meaning set forth in Section
11(a)(iii)(A)(2) hereof.
"Subsidiary" of any Person shall mean any Person of which a
majority of the voting power of the voting equity securities or
equity interest is owned, directly or indirectly, by such Person.
"Substitution Period" shall have the meaning set forth in
Section 11(a)(iii) hereof.
"Summary of Rights" shall mean the Summary of Rights in
substantially the form of Exhibit B hereto.
Section 2. Appointment of Rights Agent. The Corporation
hereby appoints the Rights Agent to act as agent for the
Corporation 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 Shares) in accordance with the terms
and conditions hereof, and the Rights Agent hereby accepts such
appointment. The Corporation may from time to time appoint such
co-Rights Agents as it may deem necessary or desirable.
Section 3. Issue of Right Certificates.
(a) Until the earlier of (i) the tenth day after the
Shares Acquisition Date or (ii) the tenth Business Day (or such
later date as may be determined by action of the Board of
Directors prior to such time as any Person becomes an Acquiring
Person) after the date of the commencement by any Person (other
than the Corporation, any Subsidiary of the Corporation, any
employee benefit plan of the Corporation or of any Subsidiary of
the Corporation or any entity holding Common Shares for or
pursuant to the terms of any such plan) of, or of the first
public announcement of the intention of any Person (other than
any of the Persons referred to in the preceding parenthetical) to
commence, a tender or exchange offer the consummation of which
would result in any Person becoming the Beneficial Owner of
Common Shares aggregating 15% or more of the then outstanding
Common Shares (such date being herein referred to as the
"Distribution Date"), (x) the Rights will be evidenced (subject
to the provisions of Section 3(b) hereof) by the certificates for
Common Shares registered in the names of the holders thereof
(which certificates shall also be deemed to be Right
Certificates) and not by separate Right Certificates, and (y) the
right to receive Right Certificates will be transferable only in
connection with the transfer of Common Shares. As soon as
practicable after the Distribution Date, the Corporation will
prepare and execute, the Rights Agent will countersign, and the
Corporation will send or cause to be sent (and the Rights Agent
will, if requested, send) by first-class, insured, postage-
prepaid mail, to each record holder of Common Shares as of the
Close of Business on the Distribution Date, at the address of
such holder shown on the records of the Corporation, a Right
Certificate evidencing one Right for each Common Share so held.
As of the Distribution Date, the Rights will be evidenced solely
by such Right Certificates. For purposes hereof, a tender or
exchange offer shall not be deemed to have commenced, nor shall
any Person be deemed to have publicly announced an intent to
commence a tender or exchange offer, until such time as (i) one
or more of the events specified by Rule 14d-2(a)(1), (2), (3) or
(4) under the Exchange Act shall have occurred or any Person
shall have filed a Schedule 14D-1 with the Securities and
Exchange Commission under the Exchange Act with respect to the
commencement of a tender or exchange offer (the first to occur of
any such events or filing being deemed an "Event") or (ii) an
Event shall have occurred following a public announcement by any
Person (other than the Corporation, any Subsidiary of the
Corporation, any employee benefit plan of the Corporation or of
any Subsidiary of the Corporation or any entity holding Common
Shares for or pursuant to the terms of any such plan) of the
intention to commence a tender or exchange offer.
(b) On the Record Date, or as soon as practicable
thereafter, the Corporation will send a copy of the Summary of
Rights by first-class, postage-prepaid mail, to each record
holder of Common Shares as of the Close of Business on the Record
Date, at the address of such holder shown on the records of the
Corporation. With respect to certificates for Common Shares
outstanding as of the Record Date, until the Distribution Date,
the Rights will be evidenced by such certificates registered in
the names of the holders thereof together with a copy of the
Summary of Rights attached thereto. Until the Distribution Date
(or the earlier of the Redemption Date or the Final Expiration
Date), the surrender for transfer of any certificate for Common
Shares outstanding on the Record Date, with or without a copy of
the Summary of Rights attached thereto, shall also constitute the
transfer of the Rights associated with the Common Shares
evidenced thereby.
(c) Certificates for Common Shares which become
outstanding (including, without limitation, reacquired Common
Shares referred to in the last sentence of this paragraph (c))
after the Record Date but prior to the earliest of the
Distribution Date, the Redemption Date or the Final Expiration
Date shall have impressed on, printed on, written on or otherwise
affixed to them the following legend:
This certificate also evidences and entitles the
holder hereof to certain Rights as set forth in a
Rights Agreement between Washington Trust Bancorp,
Inc. and The Washington Trust Company, as Rights
Agent, dated as of August 15, 1996 (the "Rights
Agreement"), the terms of which are hereby
incorporated herein by reference and a copy of
which is on file at the principal executive
offices of Washington Trust Bancorp, Inc. Under
certain circumstances, as set forth in the Rights
Agreement, such Rights will be evidenced by
separate certificates and will no longer be
evidenced by this certificate. Washington Trust
Bancorp, Inc. will mail to the holder of this
certificate a copy of the Rights Agreement without
charge after receipt of a written request
therefor. Under certain circumstances, Rights
that are or were acquired or beneficially owned by
Acquiring Persons (as defined in the Rights
Agreement) may become null and void.
With respect to such certificates containing the foregoing
legend, until the Distribution Date, the Rights associated with
the Common Shares represented by certificates shall be evidenced
by such certificates alone, and the surrender for transfer of any
such certificate shall also constitute the transfer of the Rights
associated with the Common Shares represented thereby. In the
event that the Corporation purchases or acquires any Common
Shares after the Record Date but prior to the Distribution Date,
any Rights associated with such Common Shares shall be deemed
cancelled and retired so that the Corporation shall not be
entitled to exercise any Rights associated with the Common Shares
which are no longer outstanding.
Section 4. Form of Right Certificates. The Right
Certificates (and the forms of election to purchase Common Shares
and of assignment to be printed on the reverse thereof) shall be
substantially the same as Exhibit A hereto and may have such
marks of identification or designation and such legends,
summaries or endorsements printed thereon as the Corporation may
deem appropriate and as are not inconsistent with the provisions
of this Agreement, or as may be required to comply with any
applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on
which the Rights may from time to time be listed, or to conform
to usage. Subject to the other provisions of this Agreement, the
Right Certificates shall entitle the holders thereof to purchase
such number of Common Shares as shall be set forth therein at the
Purchase Price, but the number of Common Shares and the Purchase
Price shall be subject to adjustment as provided herein.
Section 5. Countersignature and Registration. The Right
Certificates shall be executed on behalf of the Corporation by
its Chairman of the Board, its Chief Executive Officer, its
President, any of its Vice Presidents, or its Treasurer, either
manually or by facsimile signature, shall have affixed thereto
the Corporation's seal or a facsimile thereof, and shall be
attested by the Secretary or any Assistant Secretary of the
Corporation, either manually or by facsimile signature. The
Right Certificates shall be countersigned by the Rights Agent and
shall not be valid for any purpose unless so countersigned,
either manually or by facsimile. In case any officer of the
Corporation who shall have signed any of the Right Certificates
shall cease to be such officer of the Corporation before
countersignature by the Rights Agent and issuance and delivery by
the Corporation, such Right Certificates, nevertheless, may be
countersigned by the Rights Agent and issued and delivered by the
Corporation with the same force and effect as though the person
who signed such Right Certificates had not ceased to be such
officer of the Corporation; and any Right Certificate may be
signed on behalf of the Corporation by any person who, at the
actual date of the execution of such Right Certificate, shall be
a proper officer of the Corporation to sign such Right
Certificate, although at the date of the execution of this Rights
Agreement any such person was not such an officer.
Following the Distribution Date, the Rights Agent will keep
or cause to be kept, at its principal office, books for
registration of the transfer of the Right Certificates issued
hereunder. Such books shall show the names and addresses of the
respective holders of the Right Certificates, the number of
Rights evidenced on its face by each of the Right Certificates
and the date of each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and Exchange
of Right Certificates; Mutilated, Destroyed, Lost or Stolen Right
Certificates. Subject to the provisions of 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 earlier of the
Redemption Date or the Final Expiration Date, any Right
Certificate or Right Certificates (other than Right Certificates
representing Rights that have become void pursuant to Section
11(a)(ii) hereof or that have been exchanged pursuant to Section
24 hereof) may be transferred, split up, combined or exchanged
for another Right Certificate or Right Certificates, entitling
the registered holder to purchase a like number of Common Shares
as the Right Certificate or Right Certificates surrendered then
entitled such holder to purchase. Any registered holder desiring
to transfer, split up, combine or exchange any Right Certificate
or Right Certificates shall make such request in writing
delivered to the Rights Agent, and shall surrender the Right
Certificate or Right Certificates to be transferred, split up,
combined or exchanged at the principal office of the Rights
Agent. Thereupon the Rights Agent shall countersign and deliver
to the person entitled thereto a Right Certificate or Right
Certificates, as the case may be, as so requested. The
Corporation may require payment of a sum sufficient for any tax
or governmental charge that may be imposed in connection with any
transfer, split up, combination or exchange of Right
Certificates.
Upon receipt by the Corporation and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Right Certificate, and, in case of
loss, theft or destruction, of indemnity or security reasonably
satisfactory to them, and, at the Corporation's request,
reimbursement to the Corporation and the Rights Agent of all
reasonable expenses incidental thereto, and upon surrender to the
Rights Agent and cancellation of the Right Certificate if
mutilated, the Corporation will make and deliver a new Right
Certificate of like tenor to the Rights Agent for delivery to the
registered holder in lieu of the Right Certificate so lost,
stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Final
Expiration Date of Rights.
(a) The registered holder of any Right Certificate
(other than a holder whose Rights have become void pursuant to
Section 11(a)(ii) hereof or have been exchanged pursuant to
Section 24 hereof) may exercise the Rights evidenced thereby in
whole or in part at any time after the Distribution Date upon
surrender of the Right Certificate, with the form of election to
purchase on the reverse side thereof duly executed, to the Rights
Agent at its principal office, together with payment of the
Purchase Price for each Common Share as to which the Rights are
exercised, at or prior to the earliest of (i) the Close of
Business on the Final Expiration Date, (ii) the Redemption Date,
or (iii) the time at which such Rights are exchanged as provided
in Section 24 hereof.
(b) The purchase price for each Common Share to be
purchased upon the exercise of a Right shall initially be One
hundred twenty Dollars ($120.00) (the "Purchase Price"), shall be
subject to adjustment from time to time as provided in Section 11
hereof and shall be payable in lawful money of the United States
of America in accordance with paragraph (c) below.
(c) Upon receipt of a Right Certificate representing
exercisable Rights, with the form of election to purchase and
certificate duly executed, accompanied by payment of the Purchase
Price for the number of Common Share(s) to be purchased and an
amount equal to any applicable transfer tax required to be paid
by the holder of such Right Certificate in accordance with
Section 9 hereof by cash, certified check, cashier's check or
money order payable to the order of the Corporation, the Rights
Agent shall thereupon promptly (i) (A) requisition from any
transfer agent of the Common Shares certificates for the number
of Common Shares to be purchased and the Corporation hereby
irrevocably authorizes its transfer agent to comply with all such
requests, or (B) requisition from any depositary agent for the
Common Shares depositary receipts representing such number of
Common Shares as are to be purchased (in which case certificates
for the Common Shares represented by such receipts shall be
deposited by the transfer agent with the depositary agent) and
the Corporation hereby directs the depositary agent to comply
with such request, (ii) when appropriate, requisition from the
Corporation the amount of cash to be paid in lieu of issuance of
fractional Common Shares in accordance with Section 14 hereof,
(iii) after receipt of such certificates or depositary receipts,
cause the same to be delivered to or upon the order of the
registered holder of such Right Certificate, registered in such
name or names as may be designated by such holder and (iv) when
appropriate, after receipt, deliver such cash to or upon the
order of the registered holder of such Right Certificate.
(d) In case the registered holder of any Right
Certificate shall exercise less than all the Rights evidenced
thereby, a new Right Certificate evidencing Rights equivalent to
the Rights remaining unexercised shall be issued by the Rights
Agent to the registered holder of such Right Certificate or to
his duly authorized assigns, subject to the provisions of Section
14 hereof.
(e) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Corporation 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 following the form of
election to purchase set forth on the reverse side of the Right
Certificate surrendered for such exercise and (ii) provided such
additional evidence of the identity of the Beneficial Owner (or
former Beneficial Owner) or Affiliates or Associates thereof as
the Corporation shall reasonably request.
Section 8. Cancellation and Destruction of Right
Certificates. All Right Certificates surrendered for the purpose
of exercise, transfer, split up, combination or exchange shall,
if surrendered to the Corporation or to any of its agents, be
delivered to the Rights Agent for cancellation or in canceled
form, or, if surrendered to the Rights Agent, shall be canceled
by it, and no Right Certificates shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this
Rights Agreement. The Corporation shall deliver to the Rights
Agent for cancellation and retirement, and the Rights Agent shall
so cancel and retire, any other Right Certificate purchased or
acquired by the Corporation otherwise than upon the exercise
thereof. The Rights Agent shall deliver all canceled Right
Certificates to the Corporation, or shall, at the written request
of the Corporation, destroy such canceled Right Certificates, and
in such case shall deliver a certificate of destruction thereof
to the Corporation.
Section 9. Status of Common Shares.
(a) The Corporation covenants and agrees that it will
take all such action as may be necessary to ensure that all
Common Shares delivered upon exercise of Rights shall, at the
time of delivery of the certificates for such Common Shares
(subject to payment of the Purchase Price), be duly and validly
authorized and issued and fully paid and non-assessable shares.
(b) The Corporation further covenants and agrees that
it will pay when due and payable any and all federal and state
transfer taxes and charges which may be payable in respect of the
issuance or delivery of the Right Certificates or of any Common
Shares upon the exercise of Rights. The Corporation shall not,
however, be required to pay any transfer tax which may be payable
in respect of any transfer or delivery of Right Certificates to a
person other than, or the issuance or delivery of certificates or
depositary receipts for the Common Shares in a name other than
that of, the registered holder of the Right Certificate
evidencing Rights surrendered for exercise or to issue or to
deliver any certificates or depositary receipts for Common Shares
upon the exercise of any Rights until any such tax shall have
been paid (any such tax being payable by the holder of such Right
Certificate at the time of surrender) or until it has been
established to the Corporation's reasonable satisfaction that no
such tax is due.
Section 10. Common Shares Record Date. Each person in
whose name any certificate for Common Shares is issued upon the
exercise of Rights shall for all purposes be deemed to have
become the holder of record of the Common Shares represented
thereby on, and such certificate shall be dated, the date upon
which the Right Certificate evidencing such Rights was duly
surrendered and payment of the Purchase Price (and any applicable
transfer taxes) was made. Prior to the exercise of the Rights
evidenced thereby, the holder of a Right Certificate shall not be
entitled to any rights of a holder of Common 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 Corporation, except
as provided herein.
Section 11. Adjustment of Purchase Price, Number of
Shares or Number of Rights. The Purchase Price, the number of
Common 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 Corporation shall at any
time after the date of this Agreement (A) declare or pay a
dividend on the Common Shares payable in Common Shares, (B)
subdivide the outstanding Common Shares, or (C) combine the
outstanding Common Shares into a smaller number of Common Shares,
except as otherwise provided in this Section 11(a), then in each
case (x) the Purchase Price in effect after such adjustment will
be equal to the Purchase Price in effect immediately prior to
such adjustment divided by the number of Common Shares (the
"Expansion Factor") that a holder of one Common Share immediately
prior to such dividend, subdivision or combination would hold
thereafter as a result thereof and (y) each Right held prior to
such adjustment will become that number of Rights equal to the
Expansion Factor, and the adjusted number of Rights will be
deemed to be distributed among the Common Shares with respect to
which the original Rights were associated (if they remain
outstanding) and the shares issued in respect of such dividend,
subdivision or combination, so that each such Common Share will
have exactly one Right associated with it. Each adjustment made
pursuant to this paragraph shall be made as of the payment or
effective date for the applicable dividend, subdivision or
combination.
(ii) Subject to the following paragraph of this
subparagraph (ii) and to Section 24 of this Agreement, in the
event any Person shall become an Acquiring Person, each holder of
a Right shall thereafter have a right to receive, upon exercise
thereof at a price equal to the then current Purchase Price
multiplied by the number of Common Shares for which a Right is
then exercisable, in accordance with the terms of this Agreement,
such number of Common Shares of the Corporation as shall equal
the result obtained by (x) multiplying the then current Purchase
Price by the number of Common Shares for which a Right is then
exercisable and dividing that product by (y) 50% of the then
current per share market price of the Corporation's Common Shares
(determined pursuant to Section 11(d) hereof) on the date such
Person became an Acquiring Person. In the event that any Person
shall become an Acquiring Person and the Rights shall then be
outstanding, the Corporation shall not take any action that would
eliminate or diminish the benefits intended to be afforded by the
Rights.
From and after the occurrence of such an event, any Rights
that are or were acquired or beneficially owned by such Acquiring
Person (or any Associate or Affiliate of such Acquiring Person)
on or after the earlier of (x) the Shares Acquisition Date and
(y) the Distribution Date shall be void and any holder of such
Rights shall thereafter have no right to exercise such Rights
under any provision of this Agreement. No Right Certificate
shall be issued pursuant to Section 3 that represents Rights
beneficially owned by an Acquiring Person whose Rights would be
void pursuant to the preceding sentence or any Associate or
Affiliate thereof; no Right Certificate shall be issued at any
time upon the transfer of any Rights to an Acquiring Person whose
Rights would be void pursuant to the preceding sentence or any
Associate or Affiliate thereof or to any nominee of such
Acquiring Person, Associate or Affiliate; and any Right
Certificate delivered to the Rights Agent for transfer to an
Acquiring Person whose Rights would be void pursuant to the
preceding sentence or any Associate or Affiliate thereof shall be
canceled.
(iii) In the event that the number of Common Shares
which are authorized by the Corporation's articles of
incorporation and not outstanding or subscribed for, or reserved
or otherwise committed for issuance for purposes other than upon
exercise of the Rights, are not sufficient to permit the holder
of each Right to purchase the number of Common Shares to which he
would be entitled upon the exercise in full of the Rights in
accordance with the foregoing subparagraph (ii) of paragraph (a)
of this Section 11, or should the Board of Directors so elect,
the Corporation shall: (A) determine the excess of (1) the value
of the Common Shares issuable upon the exercise of a Right
(calculated as provided in the last sentence of this subparagraph
(iii)) pursuant to Section 11(a)(ii) hereof (the "Current Value")
over (2) the Purchase Price (such excess, the "Spread"), and (B)
with respect to each Right, make adequate provision to substitute
for such Common Shares, upon payment of the applicable Purchase
Price, any one or more of the following having an aggregate value
determined by the Board of Directors to be equal to the Current
Value: (1) cash, (2) a reduction in the Purchase Price, (3)
Common Shares or other equity securities of the Corporation
(including, without limitation, shares, or units of shares, of
preferred stock which the Board of Directors of the Corporation
has determined to have the same value as shares of Common Stock
(such shares of preferred stock, "common stock equivalents")),
(4) debt securities of the Corporation, or (5) other assets;
provided, however, if the Corporation shall not have made
adequate provision to deliver value pursuant to clause (B) above
within thirty (30) days following the first occurrence of an
event triggering the rights to purchase Common Shares described
in Section 11(a)(ii) the "Section 11(a)(ii) Trigger Date"), then
the Corporation shall be obligated to deliver, upon the surrender
for exercise of a Right and without requiring payment of the
Purchase Price, shares of Common Stock (to the extent available)
and then, if necessary, cash, which shares and cash have an
aggregate value equal to the Spread. If the Board of Directors
of the Corporation shall determine in good faith that it is
likely that sufficient additional Common Shares 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 Corporation may
seek shareholder approval for the authorization of such
additional shares (such period, as it may be extended, the
"Substitution Period"). To the extent that the Corporation
determines that some action need be taken pursuant to the first
and/or second sentences of this Section 11(a)(iii), the
Corporation (x) shall provide, subject to Section 7(e) hereof and
the last paragraph of Section 11(a)(ii) 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 and/or to decide the appropriate form of
distribution to be made pursuant to such first sentence and to
determine the value thereof. In the event of any such
suspension, the Corporation shall make a public announcement, and
shall deliver to the Rights Agent a statement, stating that the
exercisability of the Rights has been temporarily suspended. At
such time as the suspension is no longer in effect, the
Corporation shall make another public announcement, and deliver
to the Rights Agent a statement, so stating. For purposes of
this Section 11(a)(iii), the value of the Common Shares shall be
the current per share market price (as determined pursuant to
Section 11(d)(i) hereof) of the Common Shares on the Section
11(a)(ii) Trigger Date and the value of any common stock
equivalent shall be deemed to have the same value as the Common
Shares on such date.
(b) In the event the Corporation shall at any time
after the date of this Agreement issue any Common Shares
otherwise than in a transaction referred to in Section 11(a)(i)
above, each such Common Share so issued shall automatically have
one new Right associated with it, which Right shall be evidenced
by the certificate representing such share.
(c) In the event the Corporation shall at any time
after the date of this Agreement issue or distribute any
securities or assets in respect of, in lieu of or in exchange for
Common Shares (other than pursuant to a regular periodic cash
dividend or a dividend paid solely in Common Shares) whether by
dividend, in a reclassification or recapitalization (including
any such transaction involving a merger, consolidation or binding
share exchange), or otherwise, the Corporation shall make such
adjustments, if any, in the Purchase Price, number of Rights
and/or securities or other property purchasable upon exercise of
Rights as the Board of Directors of the Corporation, in its sole
discretion, may deem to be appropriate under the circumstances in
order to adequately protect the interests of the holders of
Rights generally, and the Corporation and the Rights Agent shall
amend this Agreement as necessary to provide for such
adjustments.
(d)(i) For the purpose of any computation hereunder,
the "current per share market price" of any security (a
"Security" for the purpose of this Section 11(d)(i)) on any date
shall be deemed to be the average of the daily closing prices per
share of such Security for the 30 consecutive Trading Days (as
such term is hereinafter defined) immediately prior to such date;
provided, however, that in the event that the current per share
market price of the Security is determined during a period
following the announcement by the issuer of such Security of (A)
a dividend or distribution on such Security payable in shares of
such Security or securities convertible into such shares, or (B)
any subdivision, combination or reclassification of such Security
and prior to the expiration of 30 Trading Days 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 per share market price shall
be appropriately adjusted to reflect the current market price per
share equivalent of such Security. The closing price for each
day shall be the last sale price, regular way, or, in case no
such sale takes place on such day, the average of the closing bid
and asked prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock
Exchange or, if the Security is not listed or admitted to trading
on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange
on which the Security is listed or admitted to trading or, if the
Security is not listed or admitted to trading on any national
securities exchange, the last quoted price or, if not so quoted,
the average of the high bid and low asked prices in the over-the-
counter market, as reported by the National Association of
Securities Dealers, Inc. Automated Quotations System ("NASDAQ")
or such other system then in use, or, if on any such date the
Security is 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 Security selected by the
Board of Directors of the Corporation. The term "Trading Day"
shall mean a day on which the principal national securities
exchange on which the Security is listed or admitted to trading
is open for the transaction of business or, if the Security is
not listed or admitted to trading on any national securities
exchange, a Business Day.
(ii) For the purpose of any computation hereunder, the
"current per share market price" of the Common Shares shall be
determined in accordance with the method set forth in Section
11(d)(i). If the Common Shares are not publicly held or so
listed or traded, "current per share market price" shall mean the
fair value per share as determined in good faith by the Board of
Directors of the Corporation, whose determination shall be
described in a statement filed with the Rights Agent.
(e) No adjustment in the Purchase Price shall be
required unless such adjustment would require an increase or
decrease of at least 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 one one-thousandth of a Common Share or of any other
share or security 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 three years from the date
of the transaction which requires such adjustment.
(f) If as a result of an adjustment made pursuant to
Section 11(a) hereof, the holder of any Right thereafter
exercised shall become entitled to receive any shares of capital
stock of the Corporation other than Common Shares, the number of
such other shares so receivable upon exercise of any Right shall
thereafter be subject to adjustment from time to time in a manner
and on terms as nearly equivalent as practicable to the
provisions with respect to the Common Shares contained in
Sections 11(a) and (c), and the provisions of Sections 7, 9, 10
and 13 with respect to the Common Shares shall apply on like
terms to any such other shares.
(g) All Rights originally issued by the Corporation
subsequent to any adjustment made to the Purchase Price hereunder
shall evidence the right to purchase, at the adjusted Purchase
Price, the number of Common Shares purchasable from time to time
hereunder upon exercise of the Rights, all subject to further
adjustment as provided herein.
(h) Unless the Corporation shall have exercised its
election as provided in Section 11(i), upon each adjustment of
the Purchase Price as a result of the calculations made in
Section 11(c), each Right outstanding immediately prior to the
making of such adjustment shall thereafter evidence the right to
purchase, at the adjusted Purchase Price, that number of Common
Shares (calculated to the nearest one one-thousandth of a Common
Share) obtained by (i) multiplying (x) the number of share(s)
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 Corporation may elect on or after the date of
any adjustment of the Purchase Price to adjust the number of
Rights in substitution for any adjustment in the number of Common
Shares purchasable upon the exercise of a Right. Each of the
Rights outstanding after such adjustment of the number of Rights
shall be exercisable for the number of Common Shares for which a
Right was exercisable immediately prior to such adjustment. Each
Right held of record prior to such adjustment of the number of
Rights shall become that number of Rights (calculated to the
nearest one 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 Corporation 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 Right Certificates have been
distributed, shall be at least 10 days later than the date of the
public announcement. If Right Certificates have been
distributed, upon each adjustment of the number of Rights
pursuant to this Section 11(i), the Corporation shall, as
promptly as practicable, cause to be distributed to holders of
record of Right Certificates on such record date Right
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 Corporation,
shall cause to be distributed to such holders of record in
substitution and replacement for the Right Certificates held by
such holders prior to the date of adjustment, and upon surrender
thereof, if required by the Corporation, new Right Certificates
evidencing all the Rights to which such holders shall be entitled
after such adjustment. Right Certificates to be so distributed
shall be issued, executed and countersigned in the manner
provided for herein and shall be registered in the names of the
holders of record of Right 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 Common Shares issuable upon the
exercise of the Rights, the Right Certificates theretofore and
thereafter issued may continue to express the Purchase Price and
the number of Common Shares which were expressed in the initial
Right Certificates issued hereunder.
(k) Before taking any action that would cause an
adjustment reducing the Purchase Price below the then par value
of the Common Shares issuable upon exercise of the Rights, the
Corporation shall take any corporate action which may, in the
opinion of its counsel, be necessary in order that the
Corporation may validly and legally issue fully paid and non-
assessable Common Shares at such adjusted Purchase Price.
(1) 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 Corporation may elect to
defer until the occurrence of such event the issuing to the
holder of any Right exercised after such record date of the
Common Shares and other capital stock or securities of the
Corporation, if any, issuable upon such exercise over and above
the Common Shares and other capital stock or securities of the
Corporation, if any, issuable upon such exercise on the basis of
the Purchase Price in effect prior to such adjustment; provided,
however, that the Corporation shall deliver to such holder a due
bill or other appropriate instrument evidencing such holder's
right to receive such additional shares upon the occurrence of
the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Corporation 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 it in its sole discretion shall determine to be
advisable in order that any (i) consolidation or subdivision of
the Common Shares, (ii) issuance wholly for cash of Common Shares
or securities which by their terms are convertible into or
exchangeable for Common Shares, (iii) dividends on Common Shares
payable in Common Shares or (iv) other issuance of cash or
securities hereafter made by the Corporation to holders of its
Common Shares shall not be taxable to such shareholders.
Section 12. Certificate of Adjustment. Whenever an
adjustment is made as provided in Section 11 hereof, the
Corporation shall promptly (a) prepare a certificate setting
forth such adjustment, and a brief statement of the facts
accounting for such adjustment, (b) file with the Rights Agent
and with each transfer agent of the Common Shares a copy of such
certificate and (c) mail a brief summary thereof to each holder
of a Right Certificate 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.
Section 13. Consolidation, Merger or Sale or Transfer of
Assets or Earning Power. In the event that, at any time after a
Person becomes an Acquiring Person, directly or indirectly, (i)
the Corporation shall consolidate with, or merge with and into,
any other Person, (ii) any Person shall consolidate with the
Corporation, or merge with and into the Corporation and the
Corporation shall be the continuing or surviving corporation of
such merger and, in connection with such merger, all or part of
the Common Shares shall be changed into or exchanged for stock or
other securities of any other Person (or the Corporation) or cash
or any other property, or (iii) the Corporation shall sell or
otherwise transfer (or one or more of its Subsidiaries shall sell
or otherwise transfer), in one or more transactions, assets or
earning power aggregating 50% or more of the assets or earning
power of the Corporation and its Subsidiaries (taken as a whole)
to any other Person other than the Corporation or one or more of
its wholly-owned Subsidiaries, then, and in each such case,
proper provision shall be made so that (A) each holder of a Right
(except as otherwise provided herein) shall thereafter have the
right to receive, upon the exercise thereof at a price equal to
the then current Purchase Price multiplied by the number of
Common Shares for which a Right is then exercisable, in
accordance with the terms of this Agreement, such number of
Common Shares of such other Person (including the Corporation as
successor thereto or as the surviving corporation) as shall equal
the result obtained by (x) multiplying the then current Purchase
Price by the number of Common Shares for which a Right is then
exercisable and dividing that product by (y) 50% of the then
current per share market price of the Common Shares of such other
Person (determined pursuant to Section 11(d) hereof) on the date
of consummation of such consolidation, merger, sale or transfer;
(B) the issuer of such Common Shares shall thereafter be liable
for, and shall assume, by virtue of such consolidation, merger,
sale or transfer, all the obligations and duties of the
Corporation pursuant to this Agreement; (C) the term
"Corporation" shall thereafter be deemed to refer to such issuer;
and (D) such issuer shall take such steps in connection with such
consummation as may be necessary to assure that the provisions
hereof shall thereafter be applicable, as nearly as reasonably
may be, in relation to the Common Shares thereafter deliverable
upon the exercise of the Rights. The Corporation covenants and
agrees that it shall not consummate any such consolidation,
merger, sale or transfer unless prior thereto the Corporation and
such issuer shall have executed and delivered to the Rights Agent
a supplemental agreement so providing. The Corporation shall not
enter into any transaction of the kind referred to in this
Section 13 if at the time of such transaction there are any
rights, warrants, instruments or securities outstanding or any
agreements or arrangements which, as a result of the consummation
of such transaction, would eliminate or substantially diminish
the benefits intended to be afforded by the Rights. The
provisions of this Section 13 shall similarly apply to successive
mergers or consolidations or sales or other transfers. For
purposes hereof, the "earning power" of the Corporation and its
Subsidiaries shall be determined in good faith by the
Corporation's Board of Directors on the basis of the operating
earnings of each business operated by the Corporation and its
Subsidiaries during the three fiscal years preceding the date of
such determination (or, in the case of any business not operated
by the Corporation or any Subsidiary during three full fiscal
years preceding such date, during the period such business was
operated by the Corporation or any Subsidiary).
Section 14. Fractional Rights and Fractional Shares.
(a) The Corporation shall not be required to issue
fractions of Rights or to distribute Right Certificates which
evidence fractional Rights. In lieu of such fractional Rights,
there shall be paid to the registered holders of the Right
Certificates with regard to which such fractional Rights would
otherwise be issuable, an amount in cash equal to the same
fraction of the current market value of a whole Right. For the
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 for any day shall be the last sale price, regular
way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in
either case as reported in the principal consolidated transaction
reporting system with respect to securities listed or admitted to
trading on the New York Stock Exchange or, if the Rights are not
listed or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting
system with respect to securities listed on the principal
national securities exchange on which the Rights are listed or
admitted to trading or, if the Rights are not listed or admitted
to trading on any national securities exchange, the last quoted
price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by
NASDAQ or such other system then in use or, if on any such date
the Rights are not quoted by any such organization, the average
of the closing bid and asked prices as furnished by a
professional market maker making a market in the Rights selected
by the Board of Directors of the Corporation. If on any such
date no such market maker is making a market in the Rights, the
fair value of the Rights on such date as determined in good faith
by the Board of Directors of the Corporation shall be used.
(b) The Corporation shall not be required to issue
fractions of Common Shares upon exercise of the Rights or to
distribute certificates which evidence fractional Common Shares.
Fractions of Common Shares may, at the election of the
Corporation, be evidenced by depositary receipts, pursuant to an
appropriate agreement between the Corporation and a depositary
selected by it; provided, that such agreement shall provide that
the holders of such depositary receipts shall have all the
rights, privileges and preferences to which they are entitled as
beneficial owners of the Common Shares represented by such
depositary receipts. In lieu of fractional Common Shares, the
Corporation shall pay to each registered holder of Right
Certificates at the time such Rights are exercised as herein
provided an amount in cash equal to the same fraction of the
current market value of one Common Share as the fraction of one
Common Share that such holder would otherwise receive upon the
exercise of the aggregate number of rights exercised by such
holder. For the purposes of this Section 14(b), the current
market value of a Common Share shall be the closing price of a
Common Share (as determined pursuant to the second sentence of
Section 11(d)(i) hereof) for 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 any right to receive fractional Rights or
fractional shares upon exercise of a Right (except as provided
above).
Section 15. Rights of Action. All rights of action in
respect of this Agreement, excepting the rights of action given
to the Rights Agent under Section 18 hereof, are vested in the
respective registered holders of the Right Certificates (and,
prior to the Distribution Date, the registered holders of the
Common Shares); and any registered holder of any Right
Certificate (or, prior to the Distribution Date, of the Common
Shares) may, without the consent of the Rights Agent or of the
holder of any other Right Certificate (or, prior to the
Distribution Date, of the Common Shares), on his own behalf and
for his own benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Corporation to enforce, or
otherwise act in respect of, his right to exercise the Rights
evidenced by such Right Certificate in the manner provided in
such Right 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 will be entitled to specific performance of the
obligations under, and injunctive relief against actual or
threatened violations of the obligations of any Person subject
to, this Agreement.
Section 16. Agreement of Right Holders. Every holder of
a Right, by accepting the same, consents and agrees with the
Corporation 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 the Common
Shares;
(b) after the Distribution Date, the Right
Certificates are transferable only on the registry books
maintained by the Rights Agent if surrendered at the principal
office of the Rights Agent, duly endorsed or accompanied by a
proper instrument of transfer with a completed form of
certification; and
(c) the Corporation and the Rights Agent may deem and
treat the person in whose name the Right Certificate (or, prior
to the Distribution Date, the associated Common Shares
certificate) is registered as the absolute owner thereof and of
the Rights evidenced thereby (notwithstanding any notations of
ownership or writing on the Right Certificates or the associated
Common Shares certificate made by anyone other than the
Corporation or the Rights Agent) for all purposes whatsoever, and
neither the Corporation nor the Rights Agent shall be affected by
any notice to the contrary.
Section 17. Right Certificate Holder Not Deemed a
Shareholder. No holder, as such, of any Right Certificate shall
be entitled to vote, receive dividends or be deemed for any
purpose the holder of the Common Shares or any other securities
of the Corporation which may at any time be issuable on the
exercise of the Rights represented thereby nor shall anything
contained herein or in any Right Certificate be construed to
confer upon the holder of any Right Certificate, as such, any of
the rights of a shareholder of the Corporation or any right to
vote for the election of directors or upon any matter submitted
to shareholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings
or other actions affecting shareholders (except as provided in
Section 25 hereof), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by such
Right Certificate shall have been exercised in accordance with
the provisions hereof.
Section 18. Concerning the Rights Agent. The Corporation
agrees to indemnify the Rights Agent for, and to hold it harmless
against, any loss, liability, or expense, incurred without
negligence, bad faith or willful misconduct on the part of the
Rights Agent, for anything done or omitted by the Rights Agent in
connection with the acceptance and administration of this
Agreement, including the costs and expenses of defending against
any claim or liability in connection therewith.
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 Right Certificate or certificate
for Common Shares or for other securities of the Corporation,
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. 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 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 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 Right
Certificates shall have been countersigned but not delivered, any
such successor Rights Agent may adopt the countersignature of the
predecessor Rights Agent and deliver such Right Certificates so
countersigned; and in case at that time any of the Right
Certificates shall not have been countersigned, any successor
Rights Agent may countersign such Right Certificates either in
the name of the predecessor Rights Agent or in the name of the
successor Rights Agent; and in all such cases such Right
Certificates shall have the full force provided in the Right
Certificates and in this Agreement.
In case at any time the name of the Rights Agent shall be
changed and at such time any of the Right Certificates shall have
been countersigned but not delivered, the Rights Agent may adopt
the countersignature under its prior name and deliver Right
Certificates so countersigned; and in case at that time any of
the Right Certificates shall not have been countersigned, the
Rights Agent may countersign such Right Certificates either in
its prior name or in its changed name; and in all such cases such
Right Certificates shall have the full force provided in the
Right Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations expressly set forth in this
Agreement and no implied duties or obligations shall be read into
this Agreement against the Rights Agent. The Rights Agent shall
perform those duties and obligations upon the following terms and
conditions, by all of which the Corporation and the holders of
Right Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel
(who may be legal counsel for the Corporation), and the opinion
of such counsel shall be full and complete authorization and
protection to the Rights Agent as to any action taken or omitted
by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under
this Agreement the Rights Agent shall deem it necessary or
desirable that any fact or matter be proved or established by the
Corporation 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 any one of the
Chairman of the Board, the President, a Vice President, the
Treasurer or the Secretary of the Corporation and delivered to
the Rights Agent; and such certificate shall be full
authorization to the Rights Agent for any action taken or
suffered in good faith by it under the provisions of this
Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only
for its own negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by
reason of any of the statements of fact or recitals contained in
this Agreement or in the Right Certificates (except as to its
countersignature thereof) or be required to verify the same, but
all such statements and recitals are and shall be deemed to have
been made by the Corporation 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 Right Certificate (except its countersignature
thereof); nor shall it be responsible for any breach by the
Corporation of any covenant or condition contained in this
Agreement or in any Right Certificate; nor shall it be
responsible for any adjustment required under the provisions of
Section 11 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 Right Certificates after
actual notice of any such adjustment); nor shall it by any act
hereunder be deemed to make any representation or warranty as to
the authorization or reservation of any shares to be issued
pursuant to this Agreement or any Right Certificate or as to
whether any shares will, when so issued, be validly authorized
and issued, fully paid and nonassessable.
(f) The Corporation agrees that it will perform,
execute, acknowledge and deliver or cause to be performed,
executed, acknowledged end 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 any one of the Chairman of the Board, the
President, a Vice President, the Secretary or the Treasurer of
the Corporation, and to apply to such officers for advice or
instructions in connection with its duties, and it shall not be
liable for any action taken or suffered to be taken by it in good
faith in accordance with instructions of any such officer.
(h) The Rights Agent and any shareholder, director,
officer or employee of the Rights Agent may buy, sell or deal in
any of the Rights or other securities of the Corporation or
become pecuniarily interested in any transaction in which the
Corporation may be interested, or contract with or lend money to
the Corporation 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 Corporation 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 Corporation resulting from any such
act, default, neglect or misconduct, provided reasonable care was
exercised in the selection and continued employment thereof.
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 30 days' notice in writing
mailed to the Corporation and to each transfer agent of the
Common Shares by registered or certified mail, and to the holders
of the Right Certificates by first-class mail. The Corporation
may remove the Rights Agent or any successor Rights Agent upon 30
days' notice in writing, mailed to the Rights Agent or successor
Rights Agent, as the case may be, and to each transfer agent of
the Common Shares by registered or certified mail, and to the
holders of the Right Certificates by first-class mail. If the
Rights Agent shall resign or be removed or shall otherwise become
incapable of acting, the Corporation shall appoint a successor to
the Rights Agent. If the Corporation shall fail to make such
appointment within a period of 30 days after giving notice of
such removal or after it has been notified in writing of such
resignation or incapacity by the resigning or incapacitated
Rights Agent or by the holder of a Right Certificate (who shall,
with such notice, submit his Right Certificate for inspection by
the Corporation), then the registered holder of any Right
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 Corporation or by such a court,
shall be a corporation organized and doing business under the
laws of the United States or of any state of the United States,
in good standing, which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or
examination by federal or state authority and which has at the
time of its appointment as Rights Agent a combined capital and
surplus of at least $100 million. After appointment, the
successor Rights Agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally
named as Rights Agent without further act or deed; but the
predecessor Rights Agent shall deliver and transfer to the
successor Rights Agent any property at the time held by it
hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment the Corporation
shall file notice thereof in writing with the predecessor Rights
Agent and each transfer agent of the Common Shares, and mail a
notice thereof in writing to the registered holders of the Right
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 Right Certificates.
Notwithstanding any of the provisions of this Agreement or of the
Rights to the contrary, the Corporation may, at its option, issue
new Right Certificates evidencing Rights in such form as may be
approved by its Board of Directors to reflect any adjustment or
change in the Purchase Price and the number or kind or class of
shares or other securities or property purchasable under the
Right Certificates made in accordance with the provisions of this
Agreement.
Section 23. Redemption.
(a) The Board of Directors of the Corporation may, at its
option, at any time prior to such time as any Person becomes an
Acquiring Person, redeem all but not less than all the then
outstanding Rights at a redemption price of $0.001 per Right,
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"). The redemption of the Rights by the Board of Directors
may be made effective at such time, on such basis and subject to
such conditions as the Board of Directors in its sole discretion
may establish.
(b) Immediately upon the action of the Board of Directors
of the Corporation ordering the redemption of the Rights pursuant
to paragraph (a) of this Section 23, 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. The Corporation
shall promptly give public notice of any such redemption;
provided, however, that the failure to give, or any defect in,
any such notice shall not affect the validity of such redemption.
Within 10 days after such action of the Board of Directors
ordering the redemption of the Rights pursuant to paragraph (a),
the Corporation shall mail a notice of redemption to all the
holders of the then outstanding Rights at their last addresses as
they appear upon the registry books of the Rights Agent or, prior
to the Distribution Date, on the registry books of the transfer
agent for the Common Shares. Any notice which is mailed in the
manner herein provided shall be deemed given, whether or not the
holder receives the notice. If the payment of the Redemption
Price is not included with such notice, each such notice shall
state the method by which the payment of the Redemption Price
will be made. Neither the Corporation nor any of its Affiliates
or Associates may redeem, acquire or purchase for value any
Rights at any time in any manner other than that specifically set
forth in this Section 23 or in Section 24 hereof, other than in
connection with the purchase of Common Shares prior to the
Distribution Date.
Section 24. Exchange.
(a) The Board of Directors of the Corporation may, at its
option, at any time after any Person becomes an Acquiring Person,
exchange all or part of the then outstanding and exercisable
Rights (which shall not include Rights that have become void
pursuant to the provisions of Section 11(a)(ii) hereof) for
Common Shares at an exchange ratio of one Common Share 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 Corporation, any Subsidiary of the
Corporation, any employee benefit plan of the Corporation or any
such Subsidiary, or any entity holding Common Shares for or
pursuant to the terms of any such plan), together with all
Affiliates and Associates of such Person, becomes the Beneficial
Owner of a majority of the Common Shares then outstanding.
(b) Immediately upon the action of the Board of Directors
of the Corporation ordering the exchange of any Rights pursuant
to subsection (a) of this Section 24 and without any further
action and without any notice, the right to exercise such Rights
shall terminate and the only right thereafter of a holder of such
Rights shall be to receive that number of Common Shares equal to
the number of such Rights held by such holder multiplied by the
Exchange Ratio. The Corporation shall promptly give public
notice of any such exchange; provided, however, that the failure
to give, or any defect in, such notice shall not affect the
validity of such exchange. The Corporation promptly shall mail a
notice of any such exchange to all of the holders of such Rights
at their last addresses as they appear upon the registry books of
the Rights Agent. Any notice which is mailed in the manner
herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of exchange will state the
method by which the exchange of the Common Shares for Rights will
be effected and, in the event of any partial exchange, the number
of Rights which will be exchanged. Any partial exchange shall be
effected pro rata based on the number of Rights (other than
Rights which have become void pursuant to the provisions of
Section 11(a)(ii) hereof) held by each holder of Rights.
(c) In any exchange pursuant to this Section 24, the
Corporation, at its option, may substitute common stock
equivalents for Common Shares exchangeable for Rights, at the
rate of an appropriate number of common stock equivalents for
each Common Share, as determined by the Board of Directors in its
sole discretion.
(d) In the event that there shall not be sufficient Common
Shares or common stock equivalents authorized by the
Corporation's articles of incorporation and not outstanding or
subscribed for, or reserved or otherwise committed for issuance
for purposes other than upon exercise of Rights, to permit any
exchange of Rights as contemplated in accordance with this
Section 24, the Corporation shall take all such action as may be
necessary to authorize additional Common Shares or common stock
equivalents, for issuance upon exchange of the Rights.
Section 25. Notice of Certain Events.
(a) In case the Corporation shall after the Distribution
Date propose (i) to effect any consolidation or merger into or
with, 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 or more transactions, of 50% or more of the
assets or earning power of the Corporation and its Subsidiaries
(taken as a whole) to, any other Person, (ii) to effect the
liquidation, dissolution or winding up of the Corporation, or
(iii) to declare or pay any dividend on the Common Shares payable
in Common Shares or to effect a subdivision, combination or
consolidation of the Common Shares (by reclassification or
otherwise than by payment of dividends in Common Shares), then,
in each such case, the Corporation shall give to each holder of a
Right Certificate, in accordance with Section 26 hereof, a notice
of such proposed action, which shall specify the record date for
the purposes of such stock dividend, 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 Common Shares, if any such date is
to be fixed, and such notice shall be so given in the case of any
action covered by clause (iii) above at least 10 days prior to
the record date for determining holders of the Common Shares for
purposes of such action, and in the case of any such other
action, at least 10 days prior to the date of the taking of such
proposed action or the date of participation therein by the
holders of the Common Shares, whichever shall be the earlier.
(b) In case any event set forth in Section 11(a)(ii) hereof
shall occur, then the Corporation shall as soon as practicable
thereafter give to each holder of a Right Certificate, in
accordance with Section 26 hereof, a notice of the occurrence of
such event, which notice shall describe such event and the
consequences of such event to holders of Rights under Section
11(a)(ii) hereof.
Section 26. Notices. Notices or demands authorized by
this Agreement to be given or made by the Rights Agent or by the
holder of any Right Certificate to or on the Corporation 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:
Washington Trust Bancorp, Inc.
23 Broad Street
Westerly, RI 02891
Attention: Secretary
Subject to the provisions of Section 21 hereof, any notice or
demand authorized by this Agreement to be given or made by the
Corporation or by the holder of any Right 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 Corporation) as follows:
The Washington Trust Company
23 Broad Street
Westerly, RI 02891
Attention: Secretary
Notices or demands authorized by this Agreement to be given or
made by the Corporation or the Rights Agent to the holder of any
Right Certificate 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
Corporation.
Section 27. Supplements and Amendments. The Corporation
may from time to time, and the Rights Agent shall, if the
Corporation so directs, supplement or amend this Agreement
without the approval of any holders of Right Certificates in
order to cure any ambiguity, to correct or supplement any
provision contained herein which may be defective or inconsistent
with any other provisions herein, or to make any change to or
delete any provision hereof or to adopt any other provisions with
respect to the Rights which the Corporation may deem necessary or
desirable. Any such supplement or amendment will be evidenced by
a writing signed by the Corporation and the Rights Agent;
provided, however, that from and after such time as any Person
becomes an Acquiring Person, this Agreement shall not be amended
or supplemented in any manner which would adversely affect the
interests of the holders of Rights (other than an Acquiring
Person and its Affiliates and Associates).
Section 28. Successors. All the covenants and provisions
of this Agreement by or for the benefit of the Corporation or the
Rights Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.
Section 29. Benefits of this Agreement. Nothing in this
Agreement shall be construed to give to any person or corporation
other than the Corporation, the Rights Agent and the registered
holders of the Right Certificates (and, prior to the Distribution
Date, the Common Shares) any legal or equitable right, remedy or
claim under this Agreement; but this Agreement shall be for the
sole and exclusive benefit of the Corporation, the Rights Agent
and the registered holders of the Right Certificates (and, prior
to the Distribution Date, the Common Shares).
Section 30. 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.
Section 31. Governing Law. This Agreement and each Right
Certificate issued hereunder shall be deemed to be a contract
made under the laws of the State of Rhode Island and for all
purposes shall be governed by and construed in accordance with
the laws of such State applicable to contracts to be made and
performed entirely within such State.
Section 32. 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 33. 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.
Section 34. Administration. The Board of Directors of
the Corporation shall have the exclusive power and authority to
administer and interpret the provisions of this Agreement and to
exercise all rights and powers specifically granted to the Board
of Directors or the Corporation or as may be necessary or
advisable in the administration of this Agreement. All such
actions, calculations, determinations and interpretations which
are done or made by the Board of Directors in good faith shall be
final, conclusive and binding on the Corporation, the Rights
Agent, the holders of the Rights and all other parties and shall
not subject the Board of Directors to any liability to the
holders of the Rights.
IN WITNESS WHEREOF, the parties hereto have caused this
Rights Agreement to be duly executed and their respective
corporate seals to be hereunder affixed and attested, all as of
the day and year first above written.
Attest: WASHINGTON TRUST BANCORP, INC.
Barbara J. Perino By: Joseph J. Kirby
- ----------------------- --------------------------
Chairman and Chief Executive
Officer
(corporate seal)
Attest: THE WASHINGTON TRUST COMPANY
Barbara J. Perino By: Joseph J. Kirby
- ----------------------- --------------------------
Chairman and Chief Executive
Officer
(corporate seal)
<PAGE>
Exhibit A
---------
Form of Right Certificate
Certificate No R- ______ Rights
NOT EXERCISABLE AFTER AUGUST 31, 2006 OR EARLIER IF
REDEMPTION OR EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT
TO REDEMPTION AT $0.001 PER RIGHT AND TO EXCHANGE ON
THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER
CERTAIN CIRCUMSTANCES, RIGHTS THAT ARE OR WERE
BENEFICIALLY OWNED BY AN ACQUIRING PERSON OR ANY
ASSOCIATES OR AFFILIATES THEREOF (AS SUCH TERMS ARE
DEFINED IN THE RIGHTS AGREEMENT) OR ANY SUBSEQUENT
HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID.
Right Certificate
WASHINGTON TRUST BANCORP, INC.
This certifies that ________________________ , or registered
assigns, is the registered owner of the number of Rights set
forth above, each of which entitles the owner thereof, subject to
the terms, provisions and conditions of the Rights Agreement,
dated as of August 15, 1996 (the "Rights Agreement"), between
Washington Trust Bancorp, Inc., a Rhode Island corporation (the
"Corporation"), and The Washington Trust Company (the "Rights
Agent"), to purchase from the Corporation at any time after the
Distribution Date (as such term is defined in the Rights
Agreement and prior to 5:00 P.M., Providence, Rhode Island time,
on August 31, 2006, at the principal office of the Rights Agent,
or at the office of its successor as Rights Agent, one fully paid
non-assessable share of Common Stock, par value $0.0625 per share
(the "Common Shares"), of the Corporation, at a purchase price of
$120.00 per Common Share (the "Purchase Price"), upon presentation
and surrender of this Right Certificate with the certification
and the Form of Election to Purchase duly executed. The number
of Rights evidenced by this Right Certificate (and the number of
Common Shares which may be purchased upon exercise hereof) set
forth above, and the Purchase Price set forth above, are the
number and Purchase Price as of September 3, 1996, based on the
Common Shares as constituted at such date. As provided in the
Rights Agreement, the Purchase Price and the number of Common
Shares which may be purchased upon the exercise of the Rights
evidenced by this Right Certificate are subject to modification
and adjustment upon the happening of certain events.
From and after the occurrence of an event described in
Section 11(a)(ii) of the Rights Agreement, if the Rights
evidenced by this Right Certificate are or were at any time on or
after the earlier of (x) the Shares Acquisition Date (as such
term is defined in the Rights Agreement) and (y) the Distribution
Date (as such term is defined in the Rights Agreement) acquired
or beneficially owned by an Acquiring Person or an Associate or
Affiliate of an Acquiring Person (as such terms are defined in
the Rights Agreement), such Rights shall become void, and any
holder of such Rights shall thereafter have no right to exercise
such Rights.
This Right 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 Corporation and the holders of
the Right Certificates. Copies of the Rights Agreement are on
file at the principal executive offices of the Corporation and
the offices of the Rights Agent.
This Right Certificate, with or without other Right
Certificates, upon surrender at the principal office of the
Rights Agent, may be exchanged for another Right Certificate or
Right Certificates of like tenor and date evidencing Rights
entitling the holder to purchase a like aggregate number of
Common Shares as the Rights evidenced by the Right Certificate or
Right Certificates surrendered shall have entitled such holder to
purchase. If this Right Certificate shall be exercised in part,
the holder shall be entitled to receive upon surrender hereof
another Right Certificate or Right Certificates for the number of
whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate (i) may be redeemed by the
Corporation at a redemption price of $0.001 per Right or (ii) may
be exchanged in whole or in part for shares of the Corporation's
Common Stock, par value $0.0625 per share.
No fractional Common Shares are required to be issued upon
the exercise of any Right or Rights evidenced hereby. Fractional
shares may, at the election of the Corporation, be evidenced by
depositary receipts. A cash payment may be made in lieu of
fractional shares as provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to
vote or receive dividends or be deemed for any purpose the holder
of the Common Shares or of any other securities of the
Corporation which may at any time be issuable on the exercise
hereof, nor shall anything contained in the Rights Agreement or
herein be construed to confer upon the holder hereof, as such,
any of the rights of a shareholder of the Corporation or any
right to vote for the election of directors or upon any matter
submitted to shareholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of
meetings or other actions affecting shareholders (except as
provided in the Rights Agreement), or to receive dividends or
subscription rights, or otherwise, until the Right or Rights
evidenced by this Right Certificate shall have been exercised as
provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Rights
Agent.
WITNESS the facsimile signature of the proper officers of
the Corporation and its corporate seal. Dated as of ___________,
_____.
Attest: WASHINGTON TRUST BANCORP, INC.
______________________________ By: __________________________
Countersigned:
_____________________________
The Washington Trust Company
Rights Agent
By:__________________________
Authorized Signature
<PAGE>
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
------------------
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED__________________________________ hereby
sells, , assigns and transfers unto _____________________________
_________________________________________________________________
(Please print name and address of transferee)
this Right Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and
appoint_____________________________ , Attorney, to transfer the
within Right Certificate on the books of the within-named
Corporation, with full power of substitution.
Dated:__________________ , ____
________________________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a
registered national securities exchange, a member of the National
Association of Securities Dealers, Inc., or a commercial bank or
trust Corporation having an office or correspondent in the United
States.
The undersigned hereby certifies that the Rights evidenced
by this Right Certificate are not beneficially owned by an
Acquiring Person or an Affiliate or Associate thereof (as defined
in the Rights Agreement).
_________________________________________
Signature
<PAGE>
Form of Reverse Side of Right Certificate -- continued
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Right Certificate.)
To: WASHINGTON TRUST BANCORP, INC.:
The undersigned hereby irrevocably elects to exercise
_______________ Rights represented by this Right Certificate to
purchase the Common Shares issuable upon the exercise of such Rights
and requests that certificates for such Common Shares be issued in
the name of:
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 Right Certificate, a new Right Certificate for the balance
remaining of such Rights shall be registered in the name of and
delivered to:
Please insert social security
or other identifying number
__________________________________________________________________
(Please print name and address)
__________________________________________________________________
Dated: __________________, ____
_______________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a
registered national securities exchange, a member of the National
Association of Securities Dealers, Inc., or a commercial bank or
trust company having an office or correspondent in the United
States.
The undersigned hereby certifies that the Rights evidenced
by this Right Certificate are not beneficially owned by an
Acquiring Person or an Affiliate or Associate thereof (as defined
in the Rights Agreement).
______________________________
Signature
NOTICE
The signature in the foregoing Forms of Assignment and
Election must conform to the name as written upon the face of
this Right Certificate in every particular, without alteration or
enlargement or any change whatsoever.
In the event the certification set forth above in the Form
of Assignment or the Form of Election to Purchase, as the case
may be, is not completed, the Corporation and the Rights Agent
will deem the beneficial owner of the Rights evidenced by this
Right Certificate to be an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement) and such
Assignment or Election to Purchase will not be honored.
Exhibit B
SUMMARY OF RIGHTS
On August 15, 1996, the Board of Directors of Washington
Trust Bancorp, Inc. (the "Corporation") declared a dividend of
one common share purchase right (a "Right") for each outstanding
share of common stock, par value $0.0625 per share (the "Common
Shares") (the "Record Date") to the shareholders of record on
that date. Each Right entitles the registered holder to purchase
from the Corporation, one Common Share of the Corporation, at a
price of $120.00 per Common Share (the "Purchase Price"), subject
to adjustment. The description and terms of the Rights are set
forth in a Rights Agreement (the "Rights Agreement") between the
Corporation and The Washington Trust Company, as Rights Agent
(the "Rights Agent").
Until the earlier to occur of (i) 10 days following a public
announcement that a person or group of affiliated or associated
persons (an "Acquiring Person") has acquired beneficial ownership
of 15% or more of the outstanding Common Shares, or (ii) 10
business days (or such later date as may be determined by action
of the Board of Directors prior to such time as any Person
becomes an Acquiring Person) following the commencement of, or
announcement of an intention to make, a tender offer or exchange
offer the consummation of which would result in the beneficial
ownership by a person or group of 15% or more of such outstanding
Common Shares (the earlier of such dates being called the
"Distribution Date"), the Rights will be evidenced, with respect
to any of the Common Share certificates outstanding as of the
Record Date, by such Common Share certificate with a copy of this
Summary of Rights attached thereto.
In the event any Person becomes an Acquiring Person, each
holder of a Right shall thereafter have a right to receive, upon
exercise thereof at a price equal to the then current Purchase
Price multiplied by the number of Common Shares for which a Right
is then exercisable, such number of Common Shares of the
Corporation as shall equal the result obtained by (x) multiplying
the then current Purchase Price by the number of Common Shares
for which a Right is then exercisable and dividing that product
by (y) 50% of the then current per share market price of the
Corporation's Common Shares. From and after the occurrence of
such an event, any Rights owned by such Acquiring Person or its
affiliates shall be void and any holder of such Rights shall have
no right to exercise such Rights.
The Agreement provides that, until the Distribution Date,
the Rights will be transferred with and only with the Common
Shares. Until the Distribution Date (or earlier redemption or
expiration of the Rights), new Common Share certificates issued
after the Record Date or upon transfer or new issuance of Common
Shares will contain a notation incorporating the Agreement by
reference. Until the Distribution Date (or earlier redemption or
expiration of the Rights), the surrender for transfer of any
certificates for Common Shares outstanding as of the Record Date,
even without such notation or a copy of this Summary of Rights
being attached thereto, will also constitute the transfer of the
Rights associated with the Common Shares represented by such
certificate. As soon as practicable following the Distribution
Date, separate certificates evidencing the Rights ("Right
Certificates") will be mailed to holders of record of the Common
Shares as of the Close of Business on the Distribution Date and
such separate Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date.
The Rights will expire on August 31, 2006 (the "Final Expiration
Date"), unless the Final Expiration Date is extended or unless
the Rights are earlier redeemed by the Corporation, in each case,
as described below.
The Purchase Price payable, and the number of Common Shares
or other securities or property issuable, upon exercise of the
Rights are subject to adjustment from time to time to prevent
dilution in the event of a stock dividend on, or a subdivision or
combination of, the Common Shares, in connection with a
distribution of securities or assets in respect of, in lieu of or
in exchange for Common Shares, whether by dividend, in a
reclassification or recapitalization or otherwise as set forth in
the Rights Agreement.
In the event that any person becomes an Acquiring Person,
proper provision shall be made so that each holder of a Right,
other than Rights beneficially owned by the Acquiring Person and
its Affiliates and Associates (which will thereafter be void),
will thereafter have the right to receive upon exercise that
number of Common Shares having a market value of two times the
exercise price of the Right.
In the event that, at any time after a Person becomes an
Acquiring Person, the Corporation is acquired in a merger or
other business combination transaction or 50% or more of its
consolidated assets or earning power are sold, proper provision
will be made so that each holder of a Right will thereafter have
the right to receive, upon the exercise thereof at the then
current exercise price of the Right, that number of shares of
common stock of the acquiring company which at the time of such
transaction will have a market value of two times the exercise
price of the Right.
If the Corporation does not have sufficient Common Shares to
satisfy such obligation to issue Common Shares, or if the Board
of Directors so elects, the Corporation shall deliver upon
payment of the exercise price of a Right an amount of cash or
securities equivalent in value to the Common Shares issuable upon
exercise of a Right; provided that, if the Corporation fails to
meet such obligation within 30 days following the later of (x)
the first occurrence of an event triggering the right to purchase
Common Shares and (y) the date on which the Corporation's right
to redeem the Rights expires, the Corporation must deliver, upon
exercise of a Right but without requiring payment of the exercise
price then in effect, Common Shares (to the extent available) and
cash equal in value to the difference between the value of the
Common Shares otherwise issuable upon the exercise of a Right and
the exercise price then in effect. The Board of Directors may
extend the 30-day period described above for up to an additional
60 days to permit the taking of action that may be necessary to
authorize sufficient additional Common Shares to permit the
issuance of Common Shares upon the exercise in full of the
Rights.
At any time after any Person becomes an Acquiring Person and
prior to the acquisition by any person or group of a majority of
the outstanding Common Shares, the Board of Directors of the
Corporation may exchange the Rights (other than Rights owned by
such person or group which have become void), in whole or in
part, at an exchange ratio of one Common Share per Right (subject
to adjustment).
With certain exceptions, no adjustment in the Purchase Price
will be required until cumulative adjustments require an
adjustment of at least 1% in such Purchase Price. No fractional
Common Shares are required to be issued. Fractional shares may,
at the election of the Corporation, be evidenced by depositary
receipts. In lieu of fractional shares, an adjustment in cash
will be made based on the market price of the Common Shares on
the last trading day prior to the date of exercise.
At any time prior to the time any Person becomes an
Acquiring Person, the Board of Directors of the Corporation may
redeem the Rights in whole, but not in part, at a price of $0.001
per Right (the "Redemption Price"). The redemption of the Rights
may be made effective at such time, on such basis and with such
conditions as the Board of Directors in its sole discretion may
establish. Immediately upon any redemption of the Rights, the
right to exercise the Rights will terminate and the only right of
the holders of Rights will be to receive the Redemption Price.
The terms of the Rights may be amended by the Board of
Directors of the Corporation without the consent of the holders
of the Rights, except that from and after such time as any person
becomes an Acquiring Person no such amendment may adversely
affect the interests of the holders of the Rights (other than the
Acquiring Person and its Affiliates and Associates).
Until a Right is exercised, the holder thereof, as such,
will have no rights as a shareholder of the Corporation,
including, without limitation, the right to vote or to receive
dividends.
A copy of the Agreement is available free of charge from the
Corporation. This summary description of the Rights does not
purport to be complete and is qualified in its entirety by
reference to the Agreement, which is hereby incorporated herein
by reference.
