[EXECUTION COPY]
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OGDEN CORPORATION
AND
THE BANK OF NEW YORK
Rights Agent
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Amended and Restated Rights Agreement
Dated as of September 28, 2000
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<PAGE>
TABLE OF CONTENTS
Section Page
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Section 1. Certain Definitions............................................1
Section 2. Appointment of Rights Agent....................................5
Section 3. Issue of Right Certificates....................................5
Section 4. Form of Right Certificates.....................................7
Section 5. Countersignature and Registration..............................7
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right
Certificates...................................................8
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights.........................................................8
Section 8. Cancellation and Destruction of Right Certificates............10
Section 9. Reservation and Availability of Capital Stock.................10
Section 10. Preferred Stock Record Date...................................11
Section 11. Adjustment of Purchase Price; Number of Shares or Number of
Rights........................................................11
Section 12. Certification of Adjusted Purchase Price or Number of Shares..19
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power.................................................19
Section 14. Fractional Rights and Fractional Shares.......................22
Section 15. Rights of Action..............................................23
Section 16. Agreement of Right Holders....................................24
Section 17. Right Certificate Holder Not Deemed a Stockholder.............24
Section 18. Concerning the Rights Agent...................................25
Section 19. Merger or Consolidation or Change of Name of Rights Agent.....25
Section 20. Duties of Rights Agent........................................26
Section 21. Change of Rights Agent........................................28
Section 22. Issuance of New Right Certificates............................28
Section 23. Redemption....................................................29
Section 24. Exchange......................................................30
Section 25. Notice of Certain Events......................................31
Section 26. Notices.......................................................31
Section 27. Directors to Review Rights Agreement..........................32
Section 28. Supplements and Amendments....................................32
Section 29. Successors....................................................33
Section 30. Benefits of this Agreement....................................33
Section 31. Severability..................................................33
Section 32. Determinations and Actions by the Board of Directors, etc.....33
Section 33. Governing Law.................................................34
Section 34. Counterparts..................................................34
Section 35. Descriptive Headings..........................................34
Exhibit A Form of Right Certificate
Exhibit B Summary of Rights to Purchase Preferred Stock
<PAGE>
RIGHTS AGREEMENT
This Amended and Restated Rights Agreement (this "Agreement" or
"Amended and Restated Rights Agreement"), dated as of September 28, 2000,
between Ogden Corporation, a Delaware corporation (the "Company"), and The Bank
of New York, a New York banking corporation.
W I T N E S S E T H:
WHEREAS, on September 20, 1990 (the "Declaration Date"), the Board
of Directors of the Company authorized and declared a dividend of one right (a
"Right") representing the right to purchase one share of Preferred Stock (as
hereinafter defined) upon the terms and subject to the conditions set forth in a
Rights Agreement, dated September 20, 1990, between the Company and
Manufacturers Hanover Trust Company, as rights agent (the "1990 Rights
Agreement") for each outstanding share of Common Stock (as hereinafter defined)
of the Company outstanding at the close of business on October 2, 1990 (the
"Record Date"), and authorized the issuance of one Right with respect to each
share of Common Stock that shall become outstanding between the Record Date and
the earlier of the Distribution Date and the Expiration Date (as such terms are
hereinafter defined), each Right initially representing the right to purchase
one one-hundredth of a share of Preferred Stock upon the terms and subject to
the conditions hereinafter set forth;
WHEREAS, The Bank of New York has become the successor to
Manufacturers Hanover Trust Company, as rights agent (the "Rights Agent");
WHEREAS, the Board of Directors has authorized and approved the
amendment and restatement in its entirety of the 1990 Rights Agreement in order
to extend the Expiration Date until October 2, 2010 and to make other changes
and provisions that they have determined are necessary or desirable and do not
adversely affect the interests of the holders of the Rights;
WHEREAS, in compliance with the terms of Section 27 of the 1990
Rights Agreement, the Company has (i) delivered to the Rights Agent a
certificate from an appropriate officer of the Company which states that this
Agreement has been approved by the Company's Board of Directors and is in
compliance with the terms of Section 27 of the 1990 Rights Agreement and (ii)
instructed the Rights Agent to execute this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the
following terms shall have the meanings indicated:
(a) "Acquiring Person" shall mean (i) any Person (as hereinafter
defined), together with all Affiliates and Associates (as such terms are
hereinafter defined) of such Person, who or which shall, subsequent to the
Declaration Date, become the Beneficial Owner (as hereinafter defined) of 15% or
more of the shares of Common Stock then outstanding (other than as a result of
an Approved Offer (as hereinafter defined)), or (ii) any Person who or which,
together with all Affiliates and Associates of such Person, is on the date of
this Amended and Restated Rights Agreement, the Beneficial Owner of 15% or more
of the shares of Common Stock then outstanding, if, subsequent to the date of
this Amended and Restated Rights Agreement, such Person, together with all
Affiliates and Associates of such Person, shall increase its Beneficial
Ownership of shares of Common Stock by 1% or more of the shares of Common Stock
then outstanding (other than as a result of an Approved Offer); provided,
however, that (x) "Acquiring Person" shall not include any Person, together with
its Affiliates and Associates, who becomes the Beneficial Owner of 15% or more
(in the case of clause (i) above) or an additional 1% or more (in the case of
clause (ii) above) of the shares of Common Stock then outstanding solely as a
result of a reduction in the number of shares of Common Stock outstanding due to
the repurchase of shares of Common Stock by the Company, unless and until such
time as such Person shall purchase or otherwise become (as a result of actions
taken by such Person or its Affiliates or Associates) the Beneficial Owner of
additional shares of Common Stock constituting 1% or more of the then
outstanding shares of Common Stock; (y) "Acquiring Person" shall not include any
Person, together with its Affiliates and Associates, who becomes the Beneficial
Owner of 15% or more (in the case of clause (i) above) or an additional 1% or
more (in the case of clause (ii) above) of the outstanding shares of Common
Stock but who acquired beneficial ownership of shares of Common Stock
inadvertently (including, without limitation, because (i) such Person was
unaware that it Beneficially Owned 15% or more of the Common Stock or (ii) such
Person was aware of the extent of such Beneficial Ownership but such Person
acquired Beneficial Ownership of such shares of Common Stock without any plan or
intention to change or influence the control of the Company), and such Person
promptly (and in any event within ten Business Days after being so requested by
the Company) enters into an irrevocable commitment satisfactory to the Company's
Board of Directors promptly (and in any event within twenty Business Days or
such shorter period as shall be determined by the Company's Board of Directors)
to divest, and thereafter promptly divests as required by such commitment,
sufficient shares of Common Stock so that such Person (together with all of its
Affiliates and Associates) ceases to be a Beneficial Owner of 15% or more of
shares of Common Stock; and (z) "Acquiring Person" shall not include the
Company, any wholly owned Subsidiary (as hereinafter defined) of the Company,
any employee benefit plan of the Company or of any of its wholly owned
Subsidiaries, or any entity holding Common Stock which was organized, appointed
or established by the Company or any of its wholly owned Subsidiaries for or
pursuant to the terms of any such plan.
(b) "Affiliate" shall have the meaning ascribed to such term 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 hereof.
(c) "Approved Offer" shall mean a tender or exchange offer for all
outstanding shares of Common Stock that is at a price and on terms approved,
prior to the acceptance for payment of shares under such tender or exchange
offer, by the Board of Directors of the Company.
(d) "Associate" shall include (x) any Person included in the
definition of "Associate" in Rule 12b-2 under the Exchange Act, as in effect on
the date of this Amended and Restated Rights Agreement, and (y) any Affiliate of
any such Person.
(e) 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 (as determined
pursuant to Rule 13d-3 or Rule 13d-5 under the Exchange Act as in effect
on the date of this Amended and Restated Rights Agreement);
(ii) which such Person or any of such Person's Affiliates or
Associates has, directly or indirectly, (A) the right to acquire
(whether such right is exercisable immediately or only after the passage
of time or the satisfaction of one or more conditions or both) pursuant
to any agreement (other than customary agreements with and between
underwriters and selling group members with respect to a bona fide
public offering of securities), arrangement or understanding (whether in
writing or not), or upon the exercise of conversion rights, exchange
rights, rights (other than the Rights described herein), warrants or
options, or otherwise; (provided, however, that a Person shall not be
deemed to be the Beneficial Owner of, or to beneficially own, any
security solely because such security has been tendered pursuant to a
tender or exchange offer made by such Person or any of such Person's
Affiliates or Associates until such tendered security is accepted for
payment or exchange); or (B) the right to vote or dispose of, or to
direct the vote or disposition of, alone or in concert with others,
pursuant to any agreement, arrangement or understanding (whether in
writing or not); provided, however, that a Person shall not be deemed
pursuant to this clause (ii)(B) to be the Beneficial Owner of, or to
beneficially own, any security if the agreement, arrangement or
understanding to vote, or direct the vote of, such security (1) arises
solely from a revocable proxy or consent given to such Person or any
such Person's Affiliates or Associates in response to a public proxy or
consent solicitation made pursuant to, and in accordance with, the
applicable rules and regulations under the Exchange Act and (2) is not
also then reportable on Schedule 13D under the Exchange Act; 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 (other than customary agreements with
and between underwriters and selling group members with respect to a
bona fide public offering of securities), arrangement or understanding
(whether or not in writing) for the purpose of acquiring, holding,
voting (except pursuant to a revocable proxy or consent as described in
clause (ii)(B) of this paragraph (e)) or disposing of any securities of
the Company.
If a Person shall be deemed to be the Beneficial Owner of any securities which
are not outstanding, such securities shall be deemed to be outstanding for
purposes of determining the percentage of Common Stock beneficially owned by
such Person but all other securities (including securities of the same class)
not actually outstanding shall not be deemed outstanding for such purposes.
(f) "Business Day" shall mean any day other than a Saturday, Sunday,
or a day on which banking institutions in the State of New York are authorized
or obligated by law or executive order to close.
(g) "Close of business" on any given date shall mean 5:00 P.M., New
York City time, on such date; provided, however, that if such date is not a
Business Day it shall mean 5:00 P.M., New York City time, on the next succeeding
Business Day.
(h) "Common Stock" shall mean the common stock, $.50 par value, of
the Company (as it may be constituted from time to time during the term of this
Agreement), except that "Common Stock" when used with reference to any Person
other than the Company (or, in the case of a transaction referred to in Section
13 hereof, if the Company is the successor to the other Person referred to in
clause (a), (b) or (c) of Section 13, or is the surviving corporation, when
thereafter used with reference to the Company) shall mean the capital stock (or,
in the case of a partnership or other unincorporated entity, the equivalent
equity interest) with the greatest voting power of such Person, together with
all rights and benefits (however denominated or constituted) relating to such
capital stock (including, without limitation, any rights or warrants to acquire
additional shares of such capital stock or other securities or assets, or to
participate in any trust for the benefit of holders of such shares, or to share
in the benefits of any agreements or other arrangements for the benefit of such
holders), whether or not such rights are yet exercisable, and together with any
other securities which are represented by the certificates for such shares or
are transferred in connection with transfers of such shares
(i) "Person" shall mean any individual, firm, corporation,
partnership or other entity.
(j) "Preferred Stock" shall mean the Cumulative Participating
Preferred Stock, par value $1.00 per share, of the Company having the rights and
preferences set forth in the form of Certificate of Designations attached to the
1990 Rights Agreement as Exhibit A.
(k) "Stock Acquisition Date" shall mean the time and day of the
first public announcement (which for purposes of this definition shall include,
without limitation, the filing of a report pursuant to the Exchange Act) by the
Company or an Acquiring Person containing information indicating that an
Acquiring Person has become such. For purposes hereof, in the event that it is
publicly announced that any Person has acquired Beneficial Ownership of
sufficient shares of Common Stock to cause such Person to become an Acquiring
Person, such Person shall not be deemed an Acquiring Person for up to ten
Business Days (or such shorter period as shall be determined by the Board of
Directors) if such Person advises the Company that it acquired Beneficial
Ownership inadvertently (within the meaning of clause (y) of the proviso to the
definition of an Acquiring Person) and the Board of Directors is continuing to
determine whether such Person qualifies for the exclusion contained in such
clause (y).
(l) "Subsidiary" shall mean, with respect to any Person, any
corporation or other entity as to which such Person beneficially owns sufficient
voting securities (or other ownership interests having ordinary voting power
sufficient, in the absence of contingencies) to elect at least a majority of its
directors (or individuals performing similar functions).
(m) The terms set forth below are defined in the Sections indicated
below:
Term Section
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Act 3(a)
Common Stock Equivalent 11(a)(iv)(B)
current market price 11(d)(i)
Current Value 11(a)(iv)(A)
Declaration Date Recitals
Distribution Date 3(a)
equivalent preferred shares 11(b)
Exchange Act l(b)
Exchange Ratio 24(a)
Expiration Date 7(a)
Final Expiration Date 7(a)
Independent Directors Committee 27
NASDAQ 11(d)(i)
1990 Rights Agreement Recitals
Purchase Price 7(b)
Record Date Recitals
Redemption Price 23
Right Recitals
Right Certificate 3(a)
Rights Agent Recitals
Section 13 Event 13(a)
Security 11(d)(i)
Spread 11(a)(iv)(A)
Substitution Period 11(a)(iv)(B)
Summary of Rights 3(b)
Trading Day 11(d)(i)
voting securities 13(a)
Section 2. Appointment of Rights Agent. The Company hereby appoints
the Rights Agent to act as agent for the Company and the holders of the Rights
in accordance with the terms and conditions hereof, and the Rights Agent hereby
accepts such appointment. The Company may from time to time appoint such
Co-Rights Agents as it may deem necessary or desirable. In the event that the
Company appoints one or more Co-Rights Agents, the respective duties of the
Rights Agent and any Co-Rights Agents shall be as the Company shall determine.
Section 3. Issue of Right Certificates. (a) Until the close of
business on the earlier of (i) the tenth Business Day (or such later day as may
be determined by action of the Board of Directors of the Company prior to such
time as any Person becomes an Acquiring Person) after the day of the first
public announcement by the Company or an Acquiring Person of facts establishing
that the Stock Acquisition Date has occurred, (ii) the tenth Business Day (or
such later day as may be determined by action of the Board of Directors of the
Company prior to such time as any Person becomes an Acquiring Person) after the
date of the commencement of, or the first public announcement of the intent of
any Person (other than the Company or any wholly owned Subsidiary of the
Company) to commence (which intention to commence remains in effect for five
Business Days after such announcement), a tender or exchange offer the
consummation of which would result in any Person acquiring (when added to any
equity securities as to which such Person is the Beneficial Owner immediately
prior to such commencement) Beneficial Ownership of 15% or more of the issued
and outstanding shares of Common Stock, and (iii) the tenth Business Day (or
such later day as may be determined by action of the Board of Directors of the
Company prior to such time as any person becomes an Acquiring Person) after the
filing by any Person (other than the Company or any wholly owned Subsidiary of
the Company) of a registration statement under the Securities Act of 1933, as
amended (the "Act"), with respect to a contemplated exchange offer to acquire
(when added to any equity securities as to which such Person is the Beneficial
Owner immediately prior to such filing) beneficial ownership of 15% or more of
the issued and outstanding shares of Common Stock (the earliest of the dates
referred to in clauses (i), (ii) and (iii) above being herein referred to as the
"Distribution Date"), (x) the Rights will be evidenced (subject to the
provisions of paragraph (b) of this Section 3) by the certificates for the
Common Stock registered in the names of the holders of the Common Stock (which
certificates for Common Stock shall also be deemed (other than for purposes of
this Section 3 and any provision of the Agreement referring to the issuance of
Rights Certificates) to be Right Certificates (as such term is hereinafter
defined)) and not by separate Right Certificates, and (y) the Rights (and the
right to receive Right Certificates) will be transferable only simultaneously
and together with the transfer of the underlying shares of Common Stock. As soon
as practicable after the Distribution Date, subject to Section 11(a)(iii)
hereof, the Company shall prepare and execute and the Rights Agent will
countersign, and the Company will send or cause to be sent, by first-class,
postage-prepaid mail, to each record holder of the Common Stock as of the close
of business on the Distribution Date, as shown by the records of the Company, at
the address of such holder shown on such records, a right certificate,
substantially in the form of Exhibit A hereto (a "Right Certificate"),
evidencing one Right for each share of Common Stock so held, subject to
adjustment as herein provided. As of and after the close of business on the
Distribution Date, the Rights will be evidenced solely by such Right
Certificates and may be transferred only by the transfer of the Right
Certificates as permitted hereby, separately and apart from any transfer of one
or more shares of Common Stock.
(b) Following October 2, 2000, the Company will make available the
Summary of Rights to Purchase Preferred Stock in the form attached hereto as
Exhibit B (the "Summary of Rights"), upon the request of any record holder of
the Common Stock as of the close of business on October 2, 2000 or thereafter,
as shown by the records of the Company. With respect to certificates for Common
Stock outstanding as of the close of business on the date of this Amended and
Restated Rights Agreement or issued prior to the Distribution Date, until the
Distribution Date, the Rights will be evidenced solely by such certificates
registered in the names of the holders thereof (whether or not such certificates
contain the legend contemplated by Section 3(c) of the 1990 Rights Agreement).
Until the Distribution Date (or the earlier redemption or expiration of the
Rights), the surrender for transfer of any certificate for Common Stock
outstanding as of the close of business on the Record Date shall also constitute
the transfer of the Rights associated with the shares of Common Stock
represented thereby.
The Company will mail to any record holder of a Right (including,
prior to the Distribution Date, a record holder of shares of Common Stock) a
copy of this Rights Agreement, without charge, within ten Business Days after
receipt of a written request therefor.
(c) All certificates for shares of Common Stock issued, or which
become outstanding after the date of this Amended and Restated Agreement but
prior to the earlier of the Distribution Date and the Expiration Date, shall
have impressed on, printed on, written on or otherwise affixed to them
substantially the following legend:
This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in an Amended and Restated Rights Agreement
between Ogden Corporation and The Bank of New York, dated as of
September 28, 2000, as it may from time to time be supplemented or
amended pursuant to its terms (the "Rights Agreement"), the terms of
which are hereby incorporated by reference and a copy of which is on
file at the principal executive offices of Ogden Corporation. 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. Ogden Corporation will mail to the
registered holder of this certificate a copy of the Rights Agreement
without charge within ten business days after receipt of a written
request therefor. Under certain circumstances provided for in the Rights
Agreement, Rights issued to or beneficially owned by any Person who is
an Acquiring Person or an Affiliate or Associate thereof (as such terms
are defined in the Rights Agreement) or any subsequent holder of such
Rights shall become null and void.
Section 4. Form of Right Certificates. The Right Certificates (and
the forms of election to purchase shares and of assignment to be printed on the
reverse thereof) shall be substantially in the form of Exhibit A hereto, and may
have such marks of identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Agreement, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange or quotation system on which the
Rights may from time to time be listed, or to conform to usage. Subject to the
provisions of Sections 11 and 22 hereof, the Right Certificates, whenever
distributed, shall be dated as of the Record Date, and on their face shall
entitle the holders thereof to purchase such number of one-hundredths of a share
of Preferred Stock as shall be set forth therein at the Purchase Price (as
hereinafter defined), but the number and type of securities purchasable upon the
exercise of each Right and the Purchase Price thereof shall be subject to
adjustment as provided herein. To the extent provided in Section 11(a)(iii)
hereof, certain Right Certificates shall contain the legend provided for
therein.
Section 5. Countersignature and Registration. (a) The Right
Certificates shall be executed on behalf of the Company by its Chairman of the
Board, its President or any Vice President, either manually or by facsimile
signature, and have affixed thereto the Company's seal or a facsimile thereof
which shall be attested by the Secretary or an Assistant Secretary of the
Company, either manually or by facsimile signature. The Right Certificates shall
be manually countersigned by the Rights Agent and shall not be valid for any
purpose unless so countersigned. In case any officer of the Company who shall
have signed or attested any of the Right Certificates shall cease to be such
officer of the Company before countersignature by the Rights Agent and issuance
and delivery by the Company, such Right Certificates, nevertheless, may be
countersigned by the Rights Agent, and issued and delivered with the same force
and effect as though the person who signed or attested such Right Certificates
had not ceased to be such officer of the Company; and any Right Certificate may
be signed or attested on behalf of the Company by any person who, at the actual
date of the execution of such Right Certificate, shall be a proper officer of
the Company to sign or attest such Right Certificate, although at the date of
the execution of this Rights Agreement any such person was not such an officer.
(b) Following the Distribution Date, the Rights Agent will keep or
cause to be kept, at its principal office or such other office designated by it
for such purpose, books for registration and transfer of the Right Certificates
issued hereunder. Such books shall show the name(s) and address(es) of the
holder(s) of each Right Certificate, the number of Rights evidenced on its face
by each Right Certificate, the certificate number of each Right Certificate and
the date of each Right Certificate.
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates. (a)
Subject to the provisions of Sections 11(a)(iii) and 14 hereof, at any time
after the close of business on the Distribution Date, and at or prior to the
close of business on the Expiration Date, any Right Certificate or Right
Certificates 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 one one-hundredths of a share of Preferred Stock (or
other securities, cash and/or assets, as the case may be) 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 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 or such other office of the Rights Agent designated for such purpose.
Neither the Rights Agent nor the Company shall be obligated to take any action
whatsoever with respect to the transfer of any such surrendered Right
Certificate unless and until the registered holder shall have completed and
signed the certificate contained in the form of assignment on the reverse side
thereof and shall have provided such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner or Associates and Affiliates of the
foregoing) as the Company shall reasonably request. 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 Company may
require payment by the holder of Rights of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer, split
up, combination or exchange of Right Certificates.
(b) Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or mutilation of
a Right Certificate, and, in case of loss, theft or destruction, of an indemnity
or security reasonably satisfactory to the Company and the Rights Agent, and
reimbursement to the Company and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent and cancellation of
the Right Certificate if mutilated, the Company will make and deliver a new
Right Certificate of like tenor to the Rights Agent for countersignature and
delivery to the registered holder in lieu of the Right Certificate so lost,
stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights. (a) Subject to Sections 11(a)(iii) and (iv), the registered holder of
any Right Certificate 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 shares and certificate on the
reverse side thereof duly executed, to the Rights Agent at its principal office
or such other office designated by it for such purpose, together with payment of
the Purchase Price for each one-hundredth of a share of Preferred Stock (or
other securities, cash and/or assets, as the case may be) as to which the Rights
are exercised, at or prior to the earlier of (i) the close of business on
October 2, 2010 (the "Final Expiration Date"), (ii) the date and time at which
the Rights are redeemed as provided in Section 23 hereof, (iii) the date and
time at which the Rights are exchanged as provided in Section 24 hereof or (iv)
the time at which the Rights expire pursuant to Section 13(d) (such earliest
date and time being referred to herein as the "Expiration Date").
(b) The purchase price for each one one-hundredth of a share of
Preferred Stock pursuant to the exercise of a Right shall initially be $80 (the
"Purchase Price"), shall be subject to adjustment from time to time as provided
in Sections 11 and 13 hereof and shall be payable in lawful money of the United
States of America in accordance with paragraph (c) below.
(c) Except as otherwise provided herein, 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 Preferred Stock (or other securities, cash and/or assets, as the
case may be) to be purchased and an amount equal to any applicable transfer tax
(as determined by the Rights Agent) in cash, or by certified check or bank draft
payable to the order of the Company, the Rights Agent shall thereupon promptly
(i) (A) requisition from any transfer agent of the Preferred Stock (or make
available, if the Rights Agent is the transfer agent) certificates for the
number of shares of Preferred Stock to be purchased and the Company hereby
irrevocably authorizes such transfer agent to comply with all such requests or
(B) if the Company has elected to deposit the Preferred Stock issuable upon
exercise of the Rights hereunder into a depository, requisition from the
depositary agent depositary receipts representing such number of one
one-hundredths of a share of Preferred Stock as are to be purchased (in which
case certificates for the Preferred Stock represented by such receipts shall be
deposited by the transfer agent with the depositary agent) and the Company
hereby directs the depositary agent to comply with such request, (ii) when
appropriate, requisition from the Company the amount of cash to be paid in lieu
of issuance of fractional shares in accordance with Section 14 hereof, (iii)
promptly after receipt of such certificates or depositary receipts, cause the
same to be delivered to or upon the order of the registered holder of such Right
Certificate, registered in such name or names as may be designated by such
holder and (iv) when appropriate, deliver any such cash, promptly after its
receipt, to or upon the order of the registered holder of such Right
Certificate. In the event that the Company is obligated to issue other
securities of the Company, pay cash and/or distribute other property pursuant to
Section 11(a) hereof, the Company will make all arrangements necessary so that
such other securities, cash and/or property are available for distribution by
the Rights Agent, if and when appropriate. Notwithstanding the foregoing
provisions of this Section 7(c), the Company may suspend the exercisability of
the Rights in accordance with Section 9(e).
(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 Sections 7(e), 11(a)(iii)
and 14 hereof.
(e) Notwithstanding any other provision of this Agreement, neither
the Rights Agent nor the Company shall be obligated to take any action
whatsoever with respect to a registered holder of any Right Certificate upon the
occurrence of any purported transfer or exercise as set forth in this Section 7
unless and until the registered holder shall have completed and signed the
certificate contained in the form of election to purchase shares set forth on
the reverse side thereof and shall have provided such additional evidence of the
identity of the Beneficial Owner and former Beneficial Owner (and Associates and
Affiliates of the foregoing) as the Company 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 Company or to any of its
agents, be delivered to the Rights Agent for cancellation or in cancelled form,
or, if surrendered to the Rights Agent, shall be cancelled by it, and no Right
Certificate shall be issued in lieu thereof except as expressly permitted by any
of the provisions of this Rights Agreement. The Company 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
Company otherwise than upon the exercise thereof. The Rights Agent shall deliver
all cancelled Right Certificates to the Company, or shall, at the written
request of the Company, destroy such cancelled Right Certificates, and in such
case shall deliver a certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Capital Stock. (a) The
Company covenants and agrees that it will cause to be reserved and kept
available out of its authorized and unissued Preferred Stock or other securities
or any Preferred Stock or other securities held in its treasury, the number of
shares of Preferred Stock or other securities that, as provided in this
Agreement (including Section 11(a)(iv) hereof), will be sufficient to permit the
exercise in full of all outstanding Rights.
(b) The Company covenants and agrees that it will take all such
action as may be necessary to insure that all shares of Preferred Stock and/or
other securities delivered upon exercise of Rights shall, at the time of
delivery of the certificates for such shares (subject to payment of the Purchase
Price), be duly and validly authorized and issued and fully paid and
nonassessable shares.
(c) The Company 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 Preferred Stock and/or other securities, as the case may be, upon the
exercise of Rights. The Company shall not, however, be required to pay any
transfer tax which may be payable in respect of any transfer involved in the
transfer or delivery of Right Certificates or the issuance or delivery of
certificates or depositary receipts for Preferred Stock and/or other securities,
as the case may be, in a name other than that of the registered holder of the
Right Certificate evidencing Rights surrendered for exercise or to issue or
deliver any certificates or depositary receipts for Preferred Stock and/or other
securities, as the case may be, 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
Company's satisfaction that no such tax is due.
(d) So long as the Preferred Stock (and/or other securities)
issuable upon the exercise of the Rights may be listed on any national
securities exchange, the Company shall use its best efforts to cause, from and
after such time as the Rights become exercisable, all shares reserved for such
issuance to be listed on such exchange upon official notice of issuance upon
such exercise.
(e) The Company shall use its best efforts to (i) file, as soon as
practicable following the earliest date after occurrence of the Stock
Acquisition Date as of which the consideration to be delivered by the Company
upon exercise of the Rights has been determined in accordance with Section
11(a)(iv) hereof, or as soon as is required by law following the Distribution
Date, as the case may be, a registration statement under the Act with respect to
the securities purchasable upon exercise of the Rights on an appropriate form,
(ii) cause such registration statement to become effective as soon as
practicable after such filing and (iii) cause such registration statement to
remain effective (with a prospectus at all times meeting the requirements of the
Act and the rules and regulations thereunder) until the earlier of (A) the date
as of which the Rights are no longer exercisable for such securities and (B) the
expiration of the Rights. The Company will also take such action as may be
appropriate to ensure compliance with the securities or "blue sky" laws of the
various states. The Company may temporarily suspend, in accordance with
applicable law, for a period of time not to exceed 90 days after the date set
forth in clause (i) of the first sentence of this Section 9(e), the
exercisability of the Rights in order to prepare and file such registration
statement and permit it to become effective. Upon any such suspension, the
Company shall issue a public announcement stating that the exercisability of the
Rights has been temporarily suspended, as well as a public announcement at such
time as the suspension is no longer in effect. Notwithstanding any provision of
this Agreement to the contrary, the Rights shall not be exercisable in any
jurisdiction if the requisite qualification in such jurisdiction shall not have
been obtained, the exercise thereof shall not be permitted under applicable law
or a registration statement shall not have been declared effective.
Section 10. Preferred Stock Record Date. Each person in whose name
any certificate or depositary receipt for Preferred Stock and/or other
securities, as the case may be, is issued upon the exercise of Rights shall for
all purposes be deemed to have become the holder of record of the Preferred
Stock and/or other securities, as the case may be, represented thereby on, and
such certificate or depositary receipt 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; provided, however,
that if the date of such surrender and payment is a date upon which the transfer
books of the Company are closed, such Person shall be deemed to have become the
record holder of such shares on, and such certificate or depositary receipt
shall be dated, the next succeeding Business Day on which the transfer books of
the Company are open. 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
Preferred Stock or other securities of the Company for which the Rights shall be
exercisable, including, without limitation, the right to vote, to receive
dividends or other distributions or to exercise any preemptive rights, and shall
not be entitled to receive any notice of any proceedings of the Company, except
as provided herein.
Section 11. Adjustment of Purchase Price; Number of Shares or Number
of Rights. The Purchase Price, the number and kind of securities, or fractions
thereof, covered by each Right and the number of Rights outstanding are subject
to adjustment from time to time as provided in this Section 11.
(a) (i) In the event the Company shall at any time after the date of
this Amended and Restated Rights Agreement (A) declare or pay a dividend on the
Preferred Stock payable in Preferred Stock, (B) subdivide or split the
outstanding shares of Preferred Stock, (C) combine or consolidate the
outstanding shares of Preferred Stock into a smaller number of shares of
Preferred Stock or (D) issue any shares of its capital stock in a
reclassification of the Preferred Stock (including any such reclassification in
connection with a consolidation or merger in which the Company is the continuing
or surviving corporation), except as otherwise provided in this Section 11, the
Purchase Price in effect at the time of the record date for such dividend or of
the effective date of such subdivision, split, combination, consolidation or
reclassification, and the number and kind of shares of capital stock issuable
upon exercise of a Right on such date, shall be proportionately adjusted so that
the holder of any Right exercised after such time shall be entitled to receive,
upon payment of the Purchase Price then in effect, the aggregate number and kind
of shares of capital stock which, if such Right had been exercised immediately
prior to such date and at a time when the transfer books of the Company were
open, such holder would have owned upon such exercise and been entitled to
receive by virtue of such dividend, subdivision, split, combination,
consolidation or reclassification. If an event occurs which would require an
adjustment under both this Section 11(a)(i) and Section 11(a)(ii), the
adjustment provided for in this Section 11(a)(i) shall be in addition to, and
shall be made prior to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In the event that a Stock Acquisition Date occurs, proper
provision shall be made so that each holder of a Right (except as
otherwise provided in clause (iii) below) thereafter shall have the
right to receive, upon exercise thereof at the then current Purchase
Price in accordance with the terms of this Agreement, in lieu of
Preferred Stock, such number of shares of Common Stock of the Company as
shall equal the result obtained by (x) multiplying the then current
Purchase Price by the then number of one one-hundredths of a share of
Preferred Stock for which a Right is then exercisable and (y) dividing
that product by 50% of the current market price per share of the Common
Stock (determined pursuant to Section 11(d) hereof) on the Stock
Acquisition Date, and, at the time such provision is made the Company
shall cause to be reserved out of its authorized but unissued (or
treasury) shares of Common Stock, the lesser of (m) the number of shares
of Common Stock that will be sufficient to permit the exercise in full
of all outstanding Rights (other than those referred to in clause (iii)
below) and (n) the number of shares of Common Stock which are authorized
by the Company's certificate of incorporation but not outstanding or
reserved for issuance for purposes other than upon exercise of the
Rights.
(iii) Notwithstanding any provision of this Agreement, from and
after the Stock Acquisition Date, any Rights beneficially owned by (p)
an Acquiring Person or any Associate or Affiliate thereof, (q) a
transferee of an Acquiring Person (or Associate or Affiliate thereof)
who becomes the transferee of such Rights concurrently with such
Acquiring Person becoming such or at any time thereafter, or (r) a
transferee of an Acquiring Person (or Associate or Affiliate thereof)
who becomes a transferee prior to the Acquiring Person becoming such and
receives such Rights pursuant to either (A) a transfer (whether or not
for consideration) by the Acquiring Person to holders of its stock or
other equity or to any Person with whom the Acquiring Person has any
continuing agreement, arrangement or understanding, whether or not in
writing, regarding the transferred Rights or (B) a transfer which the
Board of Directors of the Company has determined is part of a plan,
arrangement or understanding, whether or not in writing, which has as a
primary purpose or effect the avoidance of this Section 11(a)(iii),
shall become null and void, and any existing or subsequent holder of
such Rights shall thereafter have no right to exercise such Rights under
any provision of this Agreement. Any Right Certificate issued pursuant
to Section 3 or Section 22 hereof that represents Rights beneficially
owned by any Person referred to in clause (p), (q) or (r) above, and any
Right Certificate issued pursuant to Section 6 or Section 11 hereof upon
transfer, exchange, replacement or adjustment of any other Right
Certificate referred to in this sentence, shall contain (to the extent
feasible) the following legend:
The Rights represented by this Right Certificate are or were
beneficially owned by a Person who is, was or became an
Acquiring Person or an Affiliate or an Associate of an
Acquiring Person (as those terms are defined in the Rights
Agreement). This Right Certificate and the Rights represented
hereby may be or may become null and void in the circumstances
specified in the Rights Agreement.
The Company shall use all reasonable efforts to comply with this clause (iii),
but neither it nor the Rights Agent shall have any liability to any Person as a
result of the failure to make any determination with respect to an Acquiring
Person, or its Associates, Affiliates or to transferees of the foregoing.
(iv) In the event that the number of shares of Common Stock which
are authorized by the Company's certificate of incorporation but not
outstanding or reserved for issuance for purposes other than upon
exercise of the Rights is not sufficient to permit the exercise in full
of the Rights in accordance with the foregoing clause (ii) of this
Section 11(a), the Company shall:
(A) determine the excess of (1) the value (the "Current Value")
of the shares of Common Stock issuable upon the exercise of a Right
pursuant to the foregoing clause (ii) of this Section 11(a)
(assuming that there were a sufficient number of authorized but
unissued shares to permit exercise in full of all outstanding Rights
for Common Stock) over (2) the then current Purchase Price (such
excess being referred to herein as the "Spread"), and
(B) with respect to each Right, to the extent permitted by
applicable law and any contractual restrictions binding on the
Company, make adequate provision to substitute for such shares of
Common Stock issuable upon exercise of a Right pursuant to the
foregoing clause (ii) of this Section 11(a), upon payment of the
Purchase Price, (1) Common Stock or other equity securities of the
Company (including, without limitation, shares, or units of shares,
of preferred stock which the Board of Directors of the Company has
deemed to have the same value as shares of Common Stock (such shares
of preferred stock being referred to herein as "Common Stock
Equivalents")), (2) debt securities of the Company, (3) cash, (4)
other assets, or (5) any combination of the foregoing (provided,
that in making any such provision, Rights shall, to the fullest
extent feasible in view of the number of shares of authorized Common
Stock not outstanding or reserved for issuance for purposes other
than upon exercise of the Rights, be exercisable for Common Stock),
in each case having an aggregate value equal to the Current Value,
where such aggregate value has been determined by the Board of
Directors of the Company based upon the advice of a nationally
recognized investment banking firm selected by the Board of
Directors of the Company;
provided, however, that if the Company shall not have made adequate provision to
deliver value pursuant to clause (B) above within thirty (30) days following the
Stock Acquisition Date, then the Company shall be obligated to deliver, upon the
surrender for exercise of a Right and without requiring payment of the Purchase
Price, shares of Common Stock (to the extent available) and then, if necessary,
cash, which shares and/or cash have an aggregate value equal to the Spread.
Notwithstanding the immediately preceding sentence, if the Board of Directors of
the Company shall determine in good faith that it is likely that sufficient
additional shares of Common Stock could be authorized for issuance upon exercise
in full of the Rights, the thirty (30) day period set forth above may be
extended to the extent necessary, but not to more than ninety (90) days after
the Stock Acquisition Date, in order that the Company may seek stockholder
approval for the authorization of such additional shares (such period, as it may
be extended, being referred to herein as the "Substitution Period"). To the
extent that the Company determines that some action need be taken pursuant to
the first and/or second sentences of this Section 11(a)(iv), the Company (x)
shall provide, subject to the foregoing clause (iii) of this Section 11(a), 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 Company
shall issue a public announcement stating that the exercisability of the Rights
has been temporarily suspended, as well as a public announcement at such time as
the suspension is no longer in effect. For purposes of this Section 11(a)(iv),
the terms of any Common Stock Equivalent shall be determined so that such Common
Stock Equivalent shall have the same value as the Common Stock on the Stock
Acquisition Date.
(b) In case the Company shall fix a record date for the issuance of
rights, options or warrants to all holders of Preferred Stock entitling them
(for a period expiring within 45 calendar days after such record date) to
subscribe for or purchase Preferred Stock (or shares having the same rights,
privileges, and preferences as the Preferred Stock ("equivalent preferred
shares")) or securities convertible into Preferred Stock or equivalent preferred
shares at a price per share of Preferred Stock or equivalent preferred share (or
having a conversion price per share, if a security convertible into Preferred
Stock or equivalent preferred shares) less than the current market price per
share of Preferred Stock (as defined in Section 11(d) hereof) on such record
date, the Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect immediately prior to such
record date by a fraction, of which the numerator shall be the number of shares
of Preferred Stock and equivalent preferred shares outstanding on such record
date plus the number of shares of Preferred Stock which the aggregate offering
price of the total number of shares of Preferred Stock and/or equivalent
preferred shares to be so offered (and/or the aggregate initial conversion price
of the convertible securities to be so offered) would purchase at such current
market price and of which the denominator shall be the number of shares of
Preferred Stock and equivalent preferred shares outstanding on such record date
plus the number of additional shares of Preferred Stock and/or equivalent
preferred shares to be offered for subscription or purchase (or into which the
convertible securities so to be offered are initially convertible). In case such
subscription price may be paid in a consideration part or all of which shall be
in a form other than cash, the value of such consideration shall be as
determined in good faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the Rights Agent.
Preferred Stock owned by or held for the account of the Company or any of its
Subsidiaries shall not be deemed outstanding for the purpose of any such
computation. Such adjustment shall be made successively whenever such a record
date is fixed; and in the event that such rights, options or warrants are not so
issued, the Purchase Price shall be adjusted to be the Purchase Price which
would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for the making of a
distribution to all holders of Preferred Stock (including any such distribution
made in connection with a consolidation or merger in which the Company is the
continuing or surviving corporation) of evidences of indebtedness or assets
(other than a regular periodic cash dividend or a dividend payable in Preferred
Stock) or subscription rights or warrants (excluding those referred to in
Section 11(b) hereof), the Purchase Price to be in effect after such record date
shall be determined by multiplying the Purchase Price in effect immediately
prior to such record date by a fraction, the numerator of which shall be the
current market price per share of Preferred Stock (as defined in Section 11(d)
hereof) on such record date, less the fair market value (as determined in good
faith by the Board of Directors of the Company, whose determination shall be
described in a statement filed with the Rights Agent) of the portion of the
assets or evidences of indebtedness so to be distributed or of such subscription
rights or warrants applicable to one share of Preferred Stock and of which the
denominator shall be such current market price per share of Preferred Stock.
Such adjustments shall be made successively whenever such a record date is
fixed; and in the event that such distribution is not so made, the Purchase
Price shall again be adjusted to be the Purchase Price which would then be in
effect if such record date had not been fixed.
(d) (i) For the purpose of any computation hereunder, the "current
market price" for any security (a "Security" for purposes 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 market price per share of the Security is
determined during a period following the announcement by the issuer of such
Security of a dividend or distribution on such Security payable in shares of
such Security or securities convertible into (or exercisable or exchangeable
for) shares of such Security, or any subdivision, split, combination,
consolidation 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, split, combination, consolidation or
reclassification, then, and in each such case, the current market price shall be
appropriately adjusted to reflect ex-dividend or ex-distribution trading. The
closing price for each day shall be the last sale price, regular way, or, in
case no such sale takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange or, if the 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 shares of the
Security are listed or admitted to trading or, if the shares of the Security are
not listed or admitted to trading on any national securities exchange, the last
quoted price or, if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by the National Association
of Securities Dealers, Inc. Automated Quotation System or any successor
("NASDAQ") or such other system then in use, or, if on any such date the shares
of the Security 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 Security selected by the Board of Directors of the Company. If
on such date no such market maker is making a market in the Security, the fair
value of such shares on such date as determined in good faith by the Board of
Directors of the Company shall be used, such determination to be described in a
statement filed with the Rights Agent. The term "Trading Day" shall mean a day
on which the principal national securities exchange on which the shares of the
Security are listed or admitted to trading is open for the transaction of
business or, if the shares of the Security are not listed or admitted to trading
on any national securities exchange, but are quoted on NASDAQ, a day on which
NASDAQ is in operation or if the shares of the Security are neither listed nor
admitted to trading on any national securities exchange nor quoted on NASDAQ, a
Business Day.
(ii) For the purpose of any computation hereunder, the "current
market price" of the Preferred Stock shall be determined in
accordance with the method set forth in Section 11(d)(i), except
that if the Preferred Stock is not publicly traded, the "current
market price" of the Preferred Stock shall be conclusively deemed to
be the current per share market price of the Common Stock as
determined pursuant to Section 11(d)(i) (appropriately adjusted to
reflect any stock split, stock dividend or similar transaction
occurring after the date hereof), multiplied by one hundred. If
neither the Common Stock nor the Preferred Stock is 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 Company, whose determination shall be described in
a statement filed with the Rights Agent and shall be conclusive for
all purposes.
(e) Notwithstanding anything herein to the contrary, no adjustment
in the Purchase Price shall be required unless such adjustment would require an
increase or decrease of at least 1% in such 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-millionth of a share of Preferred Stock. Notwithstanding the
first sentence of this Section 11(e), any adjustment required by this Section 11
shall be made no later than the earlier of (i) three years from the date of the
transaction which mandates such adjustment and (ii) the date of the expiration
of the right to exercise any Rights.
(f) In the event that at any time, as a result of an adjustment made
pursuant to Section 11(a), the holder of any Right thereafter exercised shall
become entitled to receive any securities other than Preferred Stock, thereafter
the number or amount of such other securities so receivable upon exercise of any
Right shall be subject to adjustment from time to time in a manner and on terms
as nearly equivalent as practicable to the provisions with respect to the
securities contained in Sections 11(a), (b), (c), (g), (h), (j) and (k), and the
provisions of Sections 7, 9, 10, 13 and 14 of this Agreement with respect to the
Preferred Stock shall apply on like terms to any such other securities.
(g) All Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of one one-hundredths of a
share of Preferred Stock purchasable from time to time hereunder upon exercise
of the Rights, all subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its election as provided
in Section 11(i) of this Agreement, upon each adjustment of the Purchase Price
as a result of the calculations made in Sections 11(b) and (c) of this
Agreement, each Right outstanding immediately prior to the making of such
adjustment shall thereafter evidence the right to purchase, at the adjusted
Purchase Price, that number of one one-hundredths of a share of Preferred Stock
(calculated to the nearest one one-millionth of a share of Preferred Stock)
obtained by (i) multiplying (x) the number of one one-hundredths of a share of
Preferred Stock covered by a Right immediately prior to such adjustment by (y)
the Purchase Price in effect immediately prior to such adjustment of the
Purchase Price and (ii) dividing the product so obtained by the Purchase Price
in effect immediately after such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any adjustment of
the Purchase Price to adjust the number of Rights held by each holder of Rights,
in substitution for any adjustment in the number of one one-hundredths of a
share of Preferred Stock purchasable upon the exercise of a Right. Each of the
Rights outstanding after such adjustment of the number of Rights shall be
exercisable for the number of one one-hundredths of a share of Preferred Stock
for which it was exercisable immediately prior to such adjustment. Each holder
of a Right held of record prior to such adjustment of the number of Rights shall
become the holder of that number of Rights (calculated to the nearest one
ten-thousandth) obtained by dividing the Purchase Price in effect immediately
prior to adjustment of the Purchase Price by the Purchase Price in effect
immediately after adjustment of the Purchase Price. The Company shall make a
public announcement of its election to adjust the number of Rights, indicating
the record date for the adjustment, and, if known at the time, the amount of the
adjustment to be made, and information as to the manner in which such adjustment
is to be effected. 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
issued, shall be at least 10 days later than the date of the public
announcement. If Right Certificates have not been issued, in the case of a stock
split, stock dividend or similar event, such adjustment in the number of Rights
held by each existing holder of Rights shall be effected (unless the Board of
Directors otherwise elects), by allocating the adjusted number of Rights
proportionately among all shares held by such holder immediately after such
stock split, stock dividend or other event. If Right Certificates have been
issued, upon each adjustment of the number of Rights pursuant to this Section
11(i) the Company shall, as promptly as practicable, cause to be distributed to
holders of record of 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 Company, 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
Company, new Right Certificates evidencing all the Rights to which such holders
shall be entitled after such adjustment. Right Certificates so to be distributed
shall be issued, executed and countersigned in the manner provided for herein
(and may bear, at the option of the Company, the adjusted Purchase Price) and
shall be registered in the names of the holders of record of 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 one one-hundredths of a share of Preferred Stock issuable upon
the exercise of the Rights, the Right Certificates theretofore and thereafter
issued may continue to express the Purchase Price per one-hundredth of a share
of Preferred Stock and the number of one one-hundredths of a share of Preferred
Stock 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 one-hundredth of the then par value, if any, of the
Preferred Stock issuable upon exercise of the Rights, the Company shall take any
corporate action which may, in the opinion of its counsel, be necessary in order
that the Company may validly and legally issue fully paid and nonassessable
shares of Preferred Stock at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event the issuing to the holder of any Right exercised after such record date of
the Preferred Stock and other capital stock or securities of the Company, if
any, issuable upon such exercise over and above the Preferred Stock and other
capital stock or securities of the Company, if any, issuable upon such exercise
on the basis of the Purchase Price in effect prior to such adjustment; provided,
however, that the Company shall deliver to such holder a due bill or other
appropriate instrument evidencing such 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
Company shall be entitled to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this Section 11, as and to
the extent that the Company's Board of Directors shall, in its sole discretion,
determine to be advisable in order that any (i) consolidation or subdivision of
the shares of Preferred Stock, (ii) issuance wholly for cash of any shares of
Preferred Stock at less than the current market price, (iii) issuance wholly for
cash of shares of Preferred Stock or securities which by their terms are
convertible into or exchangeable for Preferred Stock, (iv) stock dividends or
(v) issuance of rights, options or warrants referred to hereinabove in this
Section 11, hereafter made by the Company to holders of its Preferred Stock
shall not be taxable to such stockholders.
(n) In the event that the Company shall, at any time after the date
of this Agreement and prior to the Distribution Date, (i) declare a dividend on
the outstanding shares of Common Stock payable in shares of Common Stock, (ii)
subdivide or split the outstanding Common Stock, (iii) combine or consolidate
the outstanding Common Stock into a smaller number of shares or (iv) effect a
reclassification of its outstanding Common Stock, the number of Rights
associated with each share of Common Stock shall be proportionately adjusted so
that the number of Rights thereafter associated with each share of Common Stock
immediately following any such event shall equal the result obtained by
multiplying the number of Rights associated with each share of Common Stock
immediately prior to such event by a fraction, the numerator of which shall be
the total number of shares of Common Stock outstanding immediately prior to such
event and the denominator of which shall be the total number of shares of Common
Stock outstanding immediately following such event. The Company covenants and
agrees that it shall not, at any time after the Distribution Date, (i)
consolidate with any other Person (other than a wholly-owned Subsidiary of the
Company in a transaction which does not violate Section 11(o) hereof), (ii)
merge with or into any other Person (other than a wholly-owned Subsidiary of the
Company in a transaction which does not violate Section 11(o) hereof), or (iii)
sell or transfer (or permit any Subsidiary to sell or transfer), in one
transaction, or a series of related transactions, assets or earning power
aggregating more than 50% of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person or Persons (other than the
Company and/or any of its Subsidiaries in one or more transactions each of which
does not violate Section 11(o) hereof), if (x) at the time of or immediately
after such consolidation, merger, sale or transfer there are any charter or
by-law provisions or any rights, warrants or other instruments or securities
outstanding or agreements in effect or other actions taken, which would
materially diminish or otherwise eliminate the benefits intended to be afforded
by the Rights or (y) prior to, simultaneously with or immediately after such
consolidation, merger or sale, the stockholders of the Person who constitutes,
or would constitute, the "Principal Party" for purposes of Section 13(a) hereof
shall have received a distribution of Rights previously owned by such Person or
any of its Affiliates and Associates. The Company shall not consummate any such
consolidation, merger, sale or transfer unless prior thereto the Company and
such other Person shall have executed and delivered to the Rights Agent a
supplemental agreement evidencing compliance with this Section 11(n).
(o) The Company covenants and agrees that, after a Stock Acquisition
Date it will not, except as permitted by Section 24 or Section 28 hereof, take
(or permit any Subsidiary to take) any action the purpose of which is to, or if
at the time such action is taken it is reasonably foreseeable that the effect of
such action is to, materially diminish or eliminate the benefits intended to be
afforded by the Rights.
Section 12. Certification of Adjusted Purchase Price or Number of
Shares. Whenever an adjustment is made as provided in Sections 11 or 13 hereof,
the Company shall (a) promptly prepare a certificate setting forth such
adjustment and a brief statement of the facts accounting for such adjustment and
(b) promptly file with the Rights Agent and with each transfer agent for the
Common Stock a copy of such certificate. The Rights Agent may rely on such
certificate and shall not be deemed to have knowledge of any such adjustment
unless and until it shall have received such certificate.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power. (a) In the event (a "Section 13 Event") that, following the Stock
Acquisition Date, directly or indirectly, (x) the Company shall consolidate
with, or merge with and into, any Person or Persons, (y) the Company shall
consolidate with, or merge with and into, any Person or Persons, and the Company
shall be the continuing or surviving corporation of such consolidation or merger
(other than, in a case of any transaction described in (x) or (y), a merger or
consolidation which would result in all of the securities generally entitled to
vote in the election of directors ("voting securities") of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into securities of the surviving
entity) all of the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation and holders of such
securities not having changed as a result of such merger or consolidation), or
(z) the Company shall sell or otherwise transfer (or one or more of its
Subsidiaries shall sell or otherwise transfer), in one or a series of related
transactions, assets or earning power aggregating more than 50% of the assets or
earning power of the Company and its Subsidiaries (taken as a whole and
calculated on the basis of the Company's most recent regularly prepared
financial statements) to any Person or Persons (other than the Company or any
Subsidiary of the Company in one or more transactions each of which does not
violate Section 11(o) hereof), then, and in each such case (except as provided
in Section 13(d) hereof), proper provision shall be made so that (i) each holder
of a Right, except as provided in Section 11(a)(iii) hereof, shall thereafter
have the right to receive, upon the exercise thereof at the then-current
Purchase Price in accordance with the terms of this Agreement, such number of
validly authorized and issued, fully paid, non-assessable and freely tradeable
shares of Common Stock of the Principal Party (as hereinafter defined), not
subject to any liens, encumbrances, rights of first refusal or other adverse
claims, as shall be equal to the result obtained by (A) multiplying the then
current Purchase Price by the number of one one-hundredths of a share of
Preferred Stock for which a Right was exercisable immediately prior to the first
occurrence of a Section 13 Event (without taking into account any amendment
previously made pursuant to Section 11(a)(ii)) and (B) dividing that product by
50% of the current market price per share of the Common Stock of such Principal
Party (determined pursuant to Section 11(d) hereof) on the date of consummation
of such Section 13 Event; (ii) such Principal Party shall thereafter be liable
for, and shall assume, by virtue of such Section 13 Event, all the obligations
and duties of the Company pursuant to this Agreement; (iii) the term "Company"
shall thereafter be deemed to refer to such Principal Party, it being
specifically intended that the provisions of Section 11 hereof shall apply only
to such Principal Party following the first occurrence of a Section 13 Event;
and (iv) such Principal Party shall take such steps (including, but not limited
to, the reservation of a sufficient number of shares of its Common Stock in
accordance with Section 9 hereof (applying the provisions thereof with respect
to Preferred Stock of the Company to the Common Stock of such Principal Party))
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
possible, in relation to the shares of its Common Stock thereafter deliverable
upon the exercise of the Rights.
(b) "Principal Party" shall mean:
(i) in the case of any transaction described in clause (x) or
(y) of the first sentence of Section 13(a): (A) the Person that is
the issuer of any securities into which Common Shares of the Company
are converted in such merger or consolidation, or, if there is more
than one such issuer of the issuer of Common Stock of which has the
greatest aggregate market value or (B) if no securities are so
issued, the Person that is the other party to such merger or
consolidation, or, if there is more than one such Person, the Person
the Common Stock of which has the greatest aggregate market value
(including, if applicable, the Company if it is the surviving
corporation); and
(ii) in the case of any transaction described in clause (z) of
the first sentence of Section 13(a), the Person that is the party
receiving the greatest portion of the assets or earning power
transferred pursuant to such transaction or transactions or if the
Person receiving the greatest portion of the assets or earning power
cannot be determined, whichever of such Persons which is the issuer
of Common Stock having the greatest aggregate market value;
provided, however, that in any of the cases described in 13(b)(i) or (b)(ii)
above, (1) if the shares of Common Stock of such Person are not at such time and
have not been continuously over the preceding twelve month period registered
under Section 12 of the Exchange Act, and such Person is a direct or indirect
Subsidiary of another Person the shares of Common Stock of which are and have
been so registered, "Principal Party" shall refer to such other Person; (2) in
case such Person is a Subsidiary, directly or indirectly, of more than one
Person, the shares of Common Stock of two or more of which are and have been so
registered, "Principal Party" shall refer to whichever of such Persons is the
issuer of the shares of Common Stock having the greatest aggregate market value;
and (3) in case such Person is owned, directly or indirectly, by a joint venture
formed by two or more Persons that are not owned, directly or indirectly, by the
same Person, the rules set forth in (1) and (2) above shall apply to each of the
chains of ownership having an interest in such joint venture as if such party
were a "Subsidiary" of both or all of such joint ventures and the Principal
Parties in each such chain shall bear the obligations set forth in this Section
13 in the same ratio as their direct or indirect interests in such Person bear
to the total of such interests.
(c) The Company shall not consummate any such consolidation, merger,
sale or transfer unless the Principal Party shall have a sufficient number of
its authorized shares of Common Stock which have not been issued or reserved for
issuance to permit the exercise in full of the Rights in accordance with this
Section 13 and unless prior thereto the Company and such Principal Party shall
have executed and delivered to the Rights Agent a supplemental agreement
providing for the terms set forth in paragraphs (a) and (b) of this Section 13
and that all rights of first refusal or preemptive rights in respect of the
issuance of shares of Common Stock of the Principal Party upon exercise of the
outstanding Rights have been waived and that such transaction shall not result
in a default by the Principal Party under this Agreement, and further providing
that, not later than the effective time of such Section 13 Event, the Principal
Party at its own expense shall:
(i) prepare and file a registration statement under the Act
with respect to the Rights and the securities purchasable upon the
exercise of the Rights on an appropriate form, and cause such
registration statement to become effective as soon as practicable
after such filing and prior to the effective time of such Section 13
Event, and to remain effective (with a prospectus at all times
meeting the requirements of the Act) until the Final Expiration
Date;
(ii) use its best efforts to qualify or register the Rights and
the securities purchasable upon exercise of the Rights under the
blue sky laws of such jurisdictions as may be necessary or
appropriate;
(iii) deliver to holders of the Rights historical financial
statements for the Principal Party which comply in all respects with
the requirements for registration on Form 10 under the Exchange Act;
and
(iv) use its best efforts to list (or continue the listing of)
the Rights and the securities purchasable upon exercise of the
Rights on a national securities exchange or to meet the eligibility
requirement for quotation on NASDAQ.
The provisions of this Section 13 shall similarly apply to
successive mergers or consolidations or sales or other transfers. In the event
that a Section 13 Event shall occur at any time after the occurrence of a Stock
Acquisition Date, the Rights which have not theretofore been exercised pursuant
to Section 11(a)(ii) shall thereafter become exercisable in the manner described
in Section 13(a).
(d) Notwithstanding anything in this Agreement to the contrary, this
Section 13 shall not be applicable to a transaction described in subparagraphs
(x) and (y) of Section 13(a) if: (i) such transaction is consummated with a
Person or Persons who acquired Common Stock pursuant to an Approved Offer (or an
Affiliate of any such Person or Persons) as promptly as reasonably practical
(and in any event within one year) following consummation of such Approved
Offer; (ii) the price per share of Common Stock offered in such transaction is
not less than the price per share of Common Stock paid to all holders of Common
Stock whose shares were purchased pursuant to such Approved Offer; and (iii) the
form of consideration offered in such transaction is the same as the form of
consideration paid pursuant to such Approved Offer. Upon consummation of any
such transaction contemplated by this Section 13(d), all Rights hereunder shall
expire.
(e) In case the Principal Party which is to be a party to a
transaction referred to in this Section 13 has provision in any of its
authorized securities or in its Certificate of Incorporation or By-Laws or other
instrument governing its corporate affairs, which provision would have the
effect of (i) causing such Principal Party to issue, in connection with, or as a
consequence of, the consummation of a transaction referred to in this Section
13, shares of Common Stock of such Principal Party at less than the then current
market price per share (determined pursuant to Section 11(d) hereof) or
securities exercisable for, or convertible into, Common Stock of such Principal
Party at less than such then current market price (other than to holders of
Rights pursuant to this Section 13) or (ii) providing for any special payment,
tax or similar provisions in connection with the issuance of the Common Stock of
such Principal Party pursuant to the provisions of Section 13, then, in such
event, the Company shall not consummate any such transaction unless prior
thereto the Company and such Principal Party shall have executed and delivered
to the Rights Agent a supplemental agreement providing that the provision in
question of such Principal Party shall have been canceled, waived or amended, or
that the authorized securities shall be redeemed, so that the applicable
provision will have no effect in connection with, or as a consequence of, the
consummation of the proposed transaction.
Section 14. Fractional Rights and Fractional Shares. (a) The Company
shall not be required to issue fractions of Rights (except, prior to the
Distribution Date, as provided in Section 11 hereof) 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 of the Rights for any day shall be the
last sale price, regular way, or, in case no such sale takes place on such day,
the average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock Exchange or,
if the Rights are not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated transaction reporting system
with respect to securities listed on the principal national securities exchange
on which the Rights are listed or admitted to trading or, if the Rights are not
listed or admitted to trading on any national securities exchange, the last
quoted price or, if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by NASDAQ or such other
system then in use or, if on any such date the Rights are not quoted by any such
organization, the average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Rights, as selected by the
Board of Directors of the Company. If on any such date the Rights are not quoted
by any such organization and no professional market maker is making such a
market in the Rights, the fair value of the Rights on such date as determined in
good faith by the Board of Directors of the Company shall be used.
(b) Following the occurrence of the Stock Acquisition Date or a
Section 13 Event, the Company shall not be required to issue fractions of shares
of Preferred Stock (other than fractions which are integral multiples of one
one-hundredth) upon exercise of the Rights or to distribute certificates which
evidence fractional shares of Preferred Stock (other than fractions which are
integral multiples of one one-hundredth). Fractions of shares of Preferred Stock
in integral multiples of one one-hundredth of a share of Preferred Stock may, at
the election of the Company, be evidenced by depositary receipts, pursuant to an
appropriate agreement between the Company 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 Preferred Stock represented by such
depositary receipts. In lieu of fractional shares of Preferred Stock that are
not integral multiples of one one-hundredth of a share of Preferred Stock, the
Company shall pay to the registered holders of Right Certificates at the time
such Rights are exercised as herein provided an amount in cash equal to the same
fraction of the current market value of one share of Preferred Stock. For
purposes of this Section 14(b), the current market value of a share of Preferred
Stock shall be the closing price of one share of Preferred Stock (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 thereof expressly waives
any right to receive any fractional Rights or any 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, other than the rights of action vested in the Rights Agent
pursuant to Section 18, are vested in the respective registered holders of the
Right Certificates (and, prior to the Distribution Date, the registered holders
of the Common Stock); and any registered holder of any Right Certificate (or,
prior to the Distribution Date, of the Common Stock), without the consent of the
Rights Agent or of the holder of any other Right Certificate (or, prior to the
Distribution Date, any holder of the Common Stock), may, on his own behalf and
for his own benefit, enforce, and may institute and maintain any suit, action or
proceeding against the Company to enforce, or otherwise act in respect of, his
right to exercise the Rights evidenced by such Right Certificate in the manner
provided in such Right 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 Company and the Rights Agent
and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be transferable
only simultaneously and together with the transfer of Common Stock;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if surrendered at
the principal office or such other office of the Rights Agent designated for
such purpose, duly endorsed or accompanied by a proper instrument of transfer
and with the appropriate forms and certificates fully executed;
(c) subject to Section 6, Section 7(e) and Section 11(a) hereof, the
Company 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
Stock 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 Stock certificate made by anyone
other than the Company or the Rights Agent) for all purposes whatsoever, and
neither the Company nor the Rights Agent shall be affected by any notice to the
contrary; and
(d) notwithstanding anything in this Agreement to the contrary,
neither the Company nor the Rights Agent shall have any liability to any holder
of a Right or other Person as a result of its inability to perform any of its
obligations under this Agreement by reason of any preliminary or permanent
injunction or other order, decree or ruling issued by a court of competent
jurisdiction or by a governmental, regulatory or administrative agency or
commission, or any statute, rule, regulation or executive order promulgated or
enacted by any governmental authority, prohibiting or otherwise restraining
performance of such obligation; provided, however, that the Company must use its
best efforts to have any such injunction, order, decree or ruling lifted,
dissolved or otherwise overturned as soon as possible.
Section 17. Right Certificate Holder Not Deemed a Stockholder. No
holder, as such, of any Right Certificate shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of Preferred Stock or any
other securities of the Company which may at any time be issuable on the
exercise of the Rights represented thereby, nor shall anything contained herein
or in any Right Certificate be construed to confer upon the holder of any Right
Certificate, as such, any of the rights of a stockholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
stockholders (except as provided in Section 25 of this Agreement), or to receive
dividends or other distributions or to exercise any preemptive 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 Company agrees to pay
to the Rights Agent reasonable compensation for all services rendered by it
hereunder and, from time to time, on demand of the Rights Agent, its reasonable
expenses and counsel fees and other disbursements incurred in the administration
and execution of this Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights Agent for, and to
hold it harmless against, any loss, liability or expense, incurred without
negligence, bad faith or willful misconduct on the part of the Rights Agent, for
anything done or omitted by the Rights Agent in connection with the acceptance
and administration of this Agreement, including the costs and expenses of
defending against any claim of liability.
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 shares of Common Stock or for other securities of the Company,
instrument of assignment or transfer, power of attorney, endorsement, affidavit,
letter, notice, direction, consent, certificate, statement, or other paper or
document believed by it to be genuine and to be signed, executed and, where
necessary, verified or acknowledged, by the proper person or persons.
Section 19. Merger or Consolidation or Change of Name of Rights
Agent. Any corporation into which the Rights Agent or any successor Rights Agent
may be merged or with which it may be consolidated, or any corporation resulting
from any merger or consolidation to which the Rights Agent or any successor
Rights Agent shall be a party, or any corporation succeeding to the corporate
trust or stock transfer business of the Rights Agent or any successor Rights
Agent, shall be the successor to the Rights Agent under this Agreement without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, provided 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
Certificate 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 Certificate 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 Certificate shall have the full force provided in the Right Certificate
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
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 undertakes the duties and obligations imposed by this
Agreement upon the following terms and conditions, all of which the Company 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 Company), and the opinion of such counsel shall be full
and complete authorization and protection to the Rights Agent as to any action
taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement
the Rights Agent shall deem it necessary or desirable that any fact or matter
(including, without limitation, the identity of any Acquiring Person or any
Affiliate or Associate thereof) be proved or established by the Company prior to
taking or suffering any action hereunder, such fact or matter (unless other
evidence in respect thereof be herein specifically prescribed) may be deemed to
be conclusively proved and established by a certificate signed by the Chairman
of the Board, the President or any Vice President and by the Treasurer or any
Assistant Treasurer or the Secretary or any Assistant Secretary of the Company
and delivered to the Rights Agent; and such certificate shall be full
authorization to the Rights Agent for any action taken or suffered in good faith
by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its own
negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement or in the Right
Certificates (except its countersignature thereof), or be required to verify the
same, but all such statements and recitals are and shall be deemed to have been
made by the Company only.
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery hereof
(except the due execution hereof by the Rights Agent) or in respect of the
validity or execution of any Right Certificate (except its countersignature
thereof); nor shall it be responsible for any breach by the Company of any
covenant or condition contained in this Agreement or in any Right Certificate;
nor shall it be responsible for any change in the exercisability of the Rights
(including Rights becoming null and void pursuant to Section 11(a)(iii) hereof);
nor shall it be responsible for any adjustment required under the provisions of
Sections 11 or 13 hereof or responsible for the manner, method or amount of any
such adjustment or the ascertaining of the existence of facts that would require
any such adjustment (except with respect to the exercise of Rights evidenced by
Right Certificates after actual notice of any such adjustment); nor shall it by
any act hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any Preferred Stock or other securities to be
issued pursuant to this Agreement or any Right Certificate or as to whether any
Preferred Stock or other securities will, when issued, be validly authorized and
issued, fully paid and nonassessable.
(f) The Company agrees that it will inform the Rights Agent promptly
upon the Company's determination that a Person has become an Acquiring Person
and the Rights Agent will not be responsible for determining the status of a
Person as an Acquiring Person prior to such notification except as such status
may be indicated in the assignment or election to purchase of a Right
Certificate. The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be required
by the Rights Agent for the carrying out or performing by the Rights Agent of
the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board, the President, any Vice President, the Secretary, the
Assistant Secretary or the Treasurer of the Company, and to apply to such
officers for advice or instructions in connection with its duties, and it shall
not be liable for any action taken or suffered to be taken by it in good faith
in accordance with instructions of any such officer. Any application by the
Rights Agent for written instructions from the Company may, at the option of the
Rights Agent, set forth in writing any action proposed to be taken or omitted by
the Rights Agent under this Amended and Restated Rights Agreement and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Rights Agent shall not be liable for any action taken by, or
omission of, the Rights Agent in accordance with a proposal included in any such
application on or after the date specified in such application (which date shall
not be less than five Business Days after the date any officer of the Company
actually receives such application, unless any such officer shall have consented
in writing to an earlier date) unless, prior to taking any such action (or the
effective date in the case of an omission), the Rights Agent shall have received
written instructions in response to such application specifying the action to be
taken or omitted.
(h) The Rights Agent and any stockholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or other
securities of the Company or become pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as though it were not Rights Agent
under this Agreement. Nothing herein shall preclude the Rights Agent from acting
in any other capacity for the Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys or agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any such act, default,
neglect or misconduct, provided reasonable care was exercised in the selection
and continued employment thereof.
(j) If, with respect to any Right Certificate surrendered to the
Rights Agent for exercise or transfer, the certificate attached to the form of
assignment or form of election to purchase, as the case may be, has either not
been completed or indicates an affirmative response to any item therein, the
Rights Agent shall not take any further action with respect to such requested
exercise or transfer without first consulting with the Company.
Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under this
Agreement upon 30 days' notice in writing mailed to the Company and to each
transfer agent of the Common Stock by registered or certified mail, and to the
holders of the Right Certificates by first-class mail. The Company 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 Stock 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
Company shall appoint a successor to the Rights Agent. If the Company shall fail
to make such appointment within a period of 30 days after 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
Company), 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 Company or by such a court,
shall be (i) a corporation, bank or trust company organized and doing business
under the laws of the United States or of any state thereof, in good standing,
having its principal office in the United States of America, which is authorized
under applicable laws to exercise corporate trust or stock transfer powers and
is subject to supervision or examination by federal or state authority and which
has at the time of its appointment as Rights Agent a combined capital and
surplus of at least $50,000,000 or (ii) an Affiliate of a corporation described
in clause (i) of this sentence. After appointment, the successor Rights Agent
shall be vested with the same powers, rights, duties and responsibilities as if
it had been originally named as Rights Agent without further act or deed; but
the predecessor Rights Agent shall, upon payment of its charges, deliver and
transfer to the successor Rights Agent any property at the time held by it
hereunder, and execute and deliver any further assurance, conveyance, act or
deed necessary for the purpose. Not later than the effective date of any such
appointment, the Company shall file notice thereof in writing with the
predecessor Rights Agent and each transfer agent of the Common Stock, and 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. Notwithstanding the foregoing provision, in the event of
resignation, removal or incapacity of the Rights Agent, the Company shall have
the authority to act as the Rights Agent until a successor Rights Agent shall
have assumed the duties of the Rights Agent hereunder.
Section 22. Issuance of New Right Certificates. Notwithstanding any
of the provisions of this Agreement or of the Rights to the contrary, the
Company 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 of
stock or other securities or property purchasable under the Right Certificates
made in accordance with the provisions of this Agreement. In addition, in
connection with the issuance or sale of shares of Common Stock following the
Distribution Date (other than upon exercise or exchange of a Right) and prior to
the Expiration Date, the Company, subject to Section 11(a)(iii) hereof, (a)
shall, with respect to shares of Common Stock so issued or sold pursuant to the
exercise of stock options or under any employee plan or arrangement, or upon the
exercise, conversion or exchange of securities, notes or debentures issued by
the Company to the extent that the terms of such securities do not otherwise
adequately adjust for the issuance of Rights, and (b) may, in any other case, if
deemed necessary or appropriate by the Board of Directors, issue Right
Certificates representing the appropriate number of Rights in connection with
the such issuance or sale; provided, however, that (i) the Company shall not be
obligated to issue any Right Certificate if, and to the extent that, the Company
shall be advised by counsel that such issuance would create a significant risk
of material adverse tax consequences to the Company or to the Person to whom
such Rights Certificate would be issued, and (ii) no such Rights Certificate
shall be issued if, and to the extent that, appropriate adjustment shall
otherwise have been made in lieu of the issuance thereof.
Section 23. Redemption. (a) The Company may, by resolution of its
Board of Directors, at its option, at any time prior to the earlier of (x) the
Stock Acquisition Date and (y) the close of business on the Final Expiration
Date, redeem all but not less than all of the then outstanding Rights at a
redemption price of $.01 per Right, appropriately adjusted to reflect any Common
Stock split, Common Stock dividend or similar transaction occurring after the
date of this Amended and Restated Rights Agreement (such redemption price being
hereinafter referred to as the "Redemption Price"). The Company may, at its
option, pay the Redemption Price in cash, shares of Common Stock (based on the
"current market price", as defined in Section 11(d)(i) hereof, of the Common
Stock at the time of such Board resolution) or any other form of consideration
deemed appropriate by the Board of Directors.
(b) Immediately upon the adoption of an effective resolution of the
Board of Directors of the Company to redeem the Rights in compliance with
Section 23(a) (or upon the subsequent satisfaction of all conditions to such
redemption established by such resolution), evidence of which shall have been
filed with the Rights Agent, and without any further action and without any
notice, the right to exercise the Rights will terminate and the only right
thereafter of the holders of Rights shall be to receive the Redemption Price.
Within ten Business Days after the action of the Board of Directors ordering the
redemption of the Rights (or such subsequent satisfaction of all such
conditions), the Company shall give notice of such redemption to the Rights
Agent and the holders of the then-outstanding Rights by mailing such notice to
all such holders at 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 Stock. Any notice which is mailed in the
manner herein provided shall be deemed given, whether or not the holder receives
the notice. Each such notice of redemption will state the method by which the
payment of the Redemption Price will be made. Neither the Company nor any of its
Affiliates or Associates may redeem, acquire or purchase any Rights at any time
in any manner other than that specifically set forth in this Section 23, and
other than in connection with the repurchase of Common Stock of the Company
prior to the Distribution Date.
(c) In the event that the Board of Directors adopts an effective
resolution to redeem the Rights in compliance with Section 23(a), the Company
may, at its option, discharge all of its obligations with respect to the Rights
by (i) issuing a press release announcing the manner of redemption of the Rights
in accordance with this Agreement and (ii) mailing payment of the Redemption
Price to the registered holders of the Rights at their last addresses as they
appear on the registry books of the Rights Agent or, prior to the Distribution
Date, on the registry books of the transfer agent of the Common Stock, and upon
such action, all outstanding Rights and Right Certificates shall be null and
void without any further action by the Company.
Section 24. Exchange. (a) The Board of Directors of the Company may,
at its option, at any time after the Stock Acquisition Date, 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)(iii)
hereof) for Common Stock (or Common Stock Equivalents) at an exchange ratio of
one share of Common Stock per Right, appropriately adjusted to reflect any stock
split, stock dividend or similar transaction occurring after the date of this
Amended and Restated Rights Agreement (such exchange ratio being hereinafter
referred to as the "Exchange Ratio"). Notwithstanding the foregoing, the Board
of Directors of the Company shall not be empowered to effect such exchange at
any time after any Person (other than the Company, any wholly owned Subsidiary
of the Company, any employee benefit plan of the Company or of any of its wholly
owned Subsidiaries, or any entity holding Common Stock which was organized,
appointed or established by the Company or any of its wholly owned Subsidiaries
for or pursuant to the terms of any such plan), together with all Affiliates and
Associates of such Person, becomes the Beneficial Owner of 50% or more of the
Common Stock then outstanding.
(b) Immediately upon the action of the Board of Directors of the
Company ordering the exchange of any Rights pursuant to and in compliance with
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, which excludes Rights that have become
void pursuant to the provisions of Section 11(a)(iii) hereof, shall be to
receive that number of shares of Common Stock, or Common Stock Equivalents,
equal to the number of such Rights held by such holder multiplied by the
Exchange Ratio. The Company shall promptly file notice of such Board action with
the Rights Agent and give public notice of any such exchange; provided, however,
that the failure to give, or any defect in, such notice shall not affect the
validity of such exchange. The Company shall promptly 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.
(c) In the event that there shall not be sufficient shares of Common
Stock issued but not outstanding or authorized but unissued to permit an
exchange of Rights as contemplated in accordance with this Section 24, the
Company shall take all such action as may be necessary to authorize additional
shares of Common Stock for issuance upon exchange of the Rights.
(d) The Company shall not be required, pursuant to this Section 24,
to issue fractions of shares of Common Stock or to distribute certificates which
evidence fractional shares of Common Stock. In lieu of such fractional shares of
Common Stock, the Company shall pay to the registered holders of the Right
Certificates, with regard to which such fractional shares of Common Stock would
otherwise be issuable, an amount in cash equal to the same fraction of the
current market value of a whole share of Common Stock. For the purposes of this
paragraph (d), the current market value of a whole share of Common Stock shall
be the closing price of a share of Common Stock (as determined pursuant to the
second sentence of Section 11(d)(i) hereof) for the Trading Day immediately
prior to the date of exchange pursuant to this Section 24, and the value of any
Common Stock Equivalent shall be deemed to have the same current market value as
the Common Stock on such date.
Section 25. Notice of Certain Events. In case the Company shall
propose, at any time after the Distribution Date, (a) to pay any dividend
payable in stock of any class to the holders of its Preferred Stock or to make
any other distribution described to the holders of its Preferred Stock (other
than a regular periodic cash dividend), or (b) to offer to the holders of its
Preferred Stock rights, options or warrants to subscribe for or to purchase any
additional Preferred Stock or securities convertible into Preferred Stock, or
(c) to effect any reclassification of its Preferred Stock (other than a
reclassification involving only the subdivision of outstanding Preferred Stock)
or any other event described in Section 11(a)(i) hereof, or (d) to effect any
merger, consolidation or other combination into or with any Person (other than a
Subsidiary of the Company in a transaction that does not violate Section 11(o)
hereof), or to effect any sale or other transfer (or to permit one or more of
its Subsidiaries to effect any sale or other transfer), in one or more
transactions, of more than 50% of the assets or earning power of the Company and
its Subsidiaries (taken as a whole) to any Person or Persons (other than the
Company and/or any of its Subsidiaries in one or more transactions each of which
does not violate Section 11(o) hereof), or (e) to effect the liquidation,
dissolution or winding up of the Company, then, in each such case, the Company
shall give to each holder of a Right, in accordance with Section 26 hereof, a
notice of such proposed action to the extent feasible and file a certificate
with the Rights Agent to that effect, which shall specify the record date for
the purposes of such stock dividend, distribution of rights or Rights, 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 Common Stock and/or Preferred Stock, if
any such date is to be fixed, and such notice shall be so given in the case of
any action covered by clause (a), (b) or (e) above at least twenty days prior to
the record date for determining holders of the Common Stock for purposes of such
action, and in the case of any such other action, at least twenty days prior to
the date of the taking of such proposed action or the date of participation
therein by the holders of Common Stock and/or Preferred Stock, whichever shall
be earlier.
The Company shall, on the Stock Acquisition Date, or as soon as
practicable thereafter, give each holder of a Right, in accordance with Section
26 hereof, a notice of the occurrence of such event, which notice shall describe
the event and the consequences of such event to holders of Rights under Sections
11(a)(ii), (iii) and (iv) hereof. The failure to give notice required by this
Section 25 or any defect therein shall not affect the legality or validity of
the action taken by the Company or the vote upon any such action.
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 Company shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another address is filed in
writing with the Rights Agent) as follows:
Ogden Corporation
Two Pennsylvania Plaza
25th Floor
New York, New York 10021
Attention: Assistant Secretary
Subject to the provisions of Section 21, any notice or demand authorized by this
Agreement to be given or made by the Company or by the holder of any 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 Company) as follows:
The Bank of New York
101 Barclay Street
New York, New York 10286
Attention: Investor Relations
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Right Certificate (or, if prior
to the Distribution Date, to the holder of any certificate for shares of Common
Stock) shall be sufficiently given or made if sent by first-class mail, postage
prepaid, addressed to such holder at the address of such holder as shown on the
registry books of the Company.
Section 27. Directors to Review Rights Agreement. It is understood
that the Independent Directors Committee (as defined below) of the Board shall
review and evaluate this Amended and Restated Rights Agreement in order to
consider whether the maintenance of this Agreement continues to be in the
interests of the Company and its shareholders at least once every two years.
Following each such review, the Independent Directors Committee will communicate
its conclusions to the full Board, including any recommendation in light thereof
as to whether this Rights Agreement should be modified or the Rights should be
redeemed. For purposes of this Section 27, "Independent Directors Committee"
shall mean the Governance Committee of the Board, or such other committee as the
Board may designate from time to time that is comprised of directors of the
Company who are independent of the management of the Company and free from any
relationship that, in the opinion of the Board, would interfere with the
exercise of independent judgment as a member of the Independent Director
Committee.
Section 28. Supplements and Amendments. The Company may, and the
Rights Agent shall, if the Company so directs, from time to time supplement or
amend this Agreement without the approval of any holders of Rights in order (i)
to cure any ambiguity, (ii) to correct or supplement any provision contained
herein which may be defective or inconsistent with any other provisions herein
(provided that any amendment made pursuant to clause (i) or (ii) hereof after a
Stock Acquisition Date shall not materially adversely affect the interests of
the holders of Right Certificates (other than an Acquiring Person or any
Affiliate or Associate thereof)), (iii) prior to a Stock Acquisition Date, to
effect any other change or modification which the Company may deem necessary or
desirable or (iv) after a Stock Acquisition Date, to make any other provisions
in regard to matters or questions arising hereunder which the Company may deem
necessary or desirable and which shall not adversely affect the interests of the
holders of Right Certificates (other than an Acquiring Person or any Affiliate
or Associate thereof). Notwithstanding anything contained in this Agreement to
the contrary, this Agreement may not be amended or supplemented (x) to reinstate
a right of redemption if the Rights are not then redeemable or (y) to decrease
the Redemption Price. Upon the delivery of a certificate from an appropriate
officer of the Company which states that the proposed supplement or amendment
has been approved by the Company's Board of Directors and is in compliance with
the terms of this Section 28, the Rights Agent shall execute such supplement or
amendment; provided, however, that the Rights Agent may, but shall not be
obligated to, enter into any such supplement or amendment that adversely affects
its rights, duties or immunities under this Agreement. Prior to the Distribution
Date, the interests of the holders of Rights shall be deemed to coincide with
the interests of holders of shares of Common Stock (other than an Acquiring
Person or any Affiliate or Associate thereof).
Section 29. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Rights Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Section 30. Benefits of this Agreement. Nothing in this Agreement
shall be construed to give to any person or corporation other than the Company,
the Rights Agent and the registered holders of the Right Certificates (and,
prior to the Distribution Date, of the Common Stock of the Company) any legal or
equitable right, remedy or claim under this Agreement; but this Agreement shall
be for the sole and exclusive benefit of the Company, the Rights Agent and the
registered holders of the Right Certificates (and, prior to the Distribution
Date, of the Common Stock of the Company).
Section 31. Severability. If any term, provision, covenant or
restriction of this Agreement or the Rights is held by a court of competent
jurisdiction or other authority to be invalid, void or unenforceable, the
remainder of this Agreement and the Rights shall remain in full force and effect
and shall in no way be affected, impaired or invalidated; provided, however,
that notwithstanding anything in this Agreement to the contrary, if any such
term, provision, covenant or restriction is held by such court or authority to
be invalid, void or unenforceable and the Board of Directors of the Company
determines in its good faith judgment that severing the invalid language from
this Agreement would adversely affect the purpose or effect of this Agreement,
the right of redemption set forth in Section 23 hereof shall be reinstated and
shall not expire until the close of business on the tenth Business Day following
the date of such determination by the Board of Directors.
Section 32. Determinations and Actions by the Board of Directors,
etc. The Board of Directors of the Company shall have the exclusive power and
authority to administer this Agreement and to exercise all rights and powers
specifically granted to the Board of Directors or to the Company, or as may be
necessary or advisable in the administration of this Agreement, including,
without limitation, the right and power to (i) interpret the provisions of this
Agreement, and (ii) make all determinations deemed necessary or advisable for
the administration of this Agreement (including, without limitation, a
determination to redeem or not to redeem the Rights pursuant to Section 23
hereof or to supplement or amend the Agreement and whether any proposed
supplement or amendment adversely affects the interests of the holders of Right
Certificates and comports with the requirements of Section 28 hereof or to find
or to announce publicly that any Person has become an Acquiring Person). For all
purposes of this Agreement, any calculation of the number of shares of Common
Stock or other securities outstanding at any particular time, including for
purposes of determining the particular percentage of such outstanding shares of
Common Stock or any other securities of which any Person is the Beneficial
Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i)
of the General Rules and Regulations under the Exchange Act as in effect on the
date of this Agreement. All such actions, calculations, interpretations and
determinations (including for purpose of clause (y) below, all omissions with
respect to the foregoing) which are done or made by the Board of Directors of
the Company in good faith, shall (x) be final, conclusive and binding on the
Company, the Rights Agent, the holders of the Rights and all other parties, and
(y) not subject the Board of Directors of the Company or any director to any
liability to the holders of the Rights.
Section 33. 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 Delaware 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 34. 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 35. Descriptive Headings. Descriptive headings of the
several Sections of this Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the date and the year first above written.
Attest: OGDEN CORPORATION
By: /s/ Jeffrey R. Horowitz By: /s/ Scott G. Mackin
------------------------- -------------------------
Title: Title: President and Chief
Executive Officer
Attest: THE BANK OF NEW YORK
By: /s/ Joe Varca
-------------------------
By Title: Vice President
------------------------- ----------------------
Title:
----------------------
<PAGE>
Exhibit A
(Form of Right Certificate)
Certificate No. R- ______________ Rights
NOT EXERCISABLE AFTER OCTOBER 2, 2010 OR EARLIER IF NOTICE OF
REDEMPTION IS GIVEN. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT
THE OPTION OF THE COMPANY, AT $.01 PER RIGHT ON THE TERMS SET
FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES,
RIGHTS 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. [THE RIGHTS REPRESENTED BY THIS
RIGHT CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON
WHO IS, WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR
AN ASSOCIATE OF AN ACQUIRING PERSON (AS THOSE TERMS ARE
DEFINED IN THE RIGHTS AGREEMENT). THIS RIGHT CERTIFICATE AND
THE RIGHTS REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE
CIRCUMSTANCES SPECIFIED IN THE RIGHTS AGREEMENT.]1
Right Certificate
OGDEN CORPORATION
This certifies that _________ , or registered assigns, is the
registered owner of the number of Rights set forth above, each of which entitles
the owner thereof, subject to the terms, provisions and conditions of the
Amended and Restated Rights Agreement dated as of September 28, 2000 (the
"Rights Agreement") between Ogden Corporation, a Delaware corporation (the
"Company"), and The Bank of New York (the "Rights Agent"), to purchase from the
Company at any time after the Distribution Date and prior to 5:00 P.M. (New York
City time) on the Expiration Date (as such terms are defined in the Rights
Agreement) at the principal office or such other office of the Rights Agent
designated for such purpose, or of its successors as Rights Agent, one
one-hundredth of a fully-paid, nonassessable share of Cumulative Participating
Preferred Stock, par value $1.00 per share (the "Preferred Stock"), of the
Company, at a purchase price of $80 per one one-hundredth of a share of
Preferred Stock (the "Purchase Price"), upon presentation and surrender of this
Right Certificate with the appropriate Form of Election to Purchase Shares duly
executed. The number of Rights evidenced by this Right Certificate (and the
number of shares which may be purchased upon exercise hereof) set forth above,
and the Purchase Price set forth above, have been determined as of __________,
___.
------------
1 The portion of the legend in brackets shall be inserted only if applicable
and shall replace the preceding sentence.
As provided in the Rights Agreement, the Purchase Price and the
number of one one-hundredths of a share of Preferred Stock or other securities
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, and in certain circumstances may be exercised to purchase
securities of issuers other than the Company.
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 Company and the holders of the Right Certificates. Copies of
the Rights Agreement are on file at the above mentioned office of the Rights
Agent and are available free of charge upon written request from the Company at:
Ogden Corporation
Two Pennsylvania Plaza
25th Floor
New York, New York 10121
Attention: Assistant Secretary
This Right Certificate, with or without other Right Certificates,
upon surrender at the 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 one one-hundredths
of a share of Preferred Stock as the Rights evidenced by the Right Certificate
or Right Certificates surrendered shall have entitled such holder to purchase.
If this Right Certificate shall be exercised in part, the holder shall be
entitled to receive, upon surrender hereof, another Right Certificate or Right
Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Right Certificate may be redeemed by the Company at its option
at a redemption price of $.01 per Right (payable in cash, shares of Common Stock
or other consideration), appropriately adjusted to reflect any stock split,
stock dividend or similar transaction occurring after the date hereof.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Right Certificate (and the Rights Agreement itself) may be
amended by action of the Company's Board of Directors.
No fractional shares of Preferred Stock will be issued upon the
exercise of any Right or Rights evidenced hereby (other than fractions which are
integral multiples of one one-hundredth, which may, at the election of the
Company, be evidenced by depositary receipts), but in lieu thereof a cash
payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate, as such, shall be entitled to
vote or receive dividends or be deemed for any purpose the holder of Preferred
Stock or of any other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders (except as
provided in the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this 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
Company and its corporate seal. Dated as of __________, ___.
ATTEST: OGDEN CORPORATION
By By
--------------------------- ---------------------------
Title: Title:
----------------------- -----------------------
Countersigned:
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 Company,
with full power of substitution.
DATED: , .
----------------- -----
-------------------------
Signature
Signature Guaranteed:
<PAGE>
Certificate
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) this Right Certificate [ ] is [ ] not being sold, assigned and
transferred by or on behalf of a Person who is or was an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person (as such terms are defined
in the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned,
it [ ] did [ ] did not acquire the Rights evidenced by this Right Certificate
from any Person who is, was or subsequently became an Acquiring Person or an
Affiliate or Associate of an Acquiring Person.
Dated: , .
----------------- ---- ------------------------
Signature
Signature Guaranteed:
NOTICE
The signature of the foregoing Assignment must correspond to the
name as written upon the face of this Right Certificate in every particular,
without alteration or enlargement or any change whatsoever.
<PAGE>
FORM OF ELECTION TO PURCHASE SHARES
(To be executed if holder desires
to exercise the Right Certificate)
To Ogden Corporation:
The undersigned hereby irrevocably elects to exercise __________
Rights represented by this Right Certificate to purchase the Preferred Stock (or
such other securities of the Company or any other person) and requests that
certificates for such Preferred Stock 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:
<PAGE>
Certificate
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) this Rights evidenced by this Right Certificate [ ] are [ ] are
not being exercised by or on behalf of a Person who is or was an Acquiring
Person or an Affiliate or Associate of any such Acquiring Person (as such terms
are defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned,
it [ ] did [ ] did not acquire the Rights evidenced by this Right Certificate
from any Person who is, was or became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated: ,
--------------- ---- -------------------------
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Election to Purchase must correspond
to the name as written upon the face of this Right Certificate in every
particular, without alteration or enlargement or any change whatsoever.
<PAGE>
Exhibit B
OGDEN CORPORATION
SUMMARY OF RIGHTS TO PURCHASE PREFERRED STOCK
On September 28, 2000 (the "Amendment Date"), Ogden Corporation (the
"Company") entered into an Amended and Restated Rights Agreement (the "Rights
Agreement") between the Company and The Bank of New York (the "Rights Agent"),
pursuant to which the terms of the outstanding rights (the "Rights") previously
issued were amended. The Rights are currently evidenced (on the basis of one
right for each outstanding share) by the existing certificates for outstanding
shares of Common Stock of the Company (the "Common Stock") and are not
exercisable and do not trade separately from such shares. This Summary describes
the rights as so amended.
Each Right, when exercisable, will entitle the registered holder to
purchase from the Company one one-hundredth of a share of the Company's
Cumulative Participating Preferred Stock, par value $1.00 per share (the
"Preferred Stock"), at a price of $80 per one one-hundredth of a share (the
"Purchase Price"), subject to adjustment.
Until the close of business on the earliest of (i) the tenth day
after a public announcement that (A) a person or group of affiliated or
associated persons has acquired, or obtained the right to acquire, beneficial
ownership of 15% or more of the outstanding shares of Common Stock of the
Company (other than pursuant to a tender offer for all outstanding shares of
Common Stock at the price and on terms approved by the Board of Directors)
subsequent to October 2, 2000 or (B) a person or group of affiliated or
associated persons who, on October 2, 2000, was the beneficial owner of 15% or
more of the outstanding shares of Common Stock, and who has acquired more than
an additional 1% of the outstanding shares of Common Stock (other than pursuant
to a tender offer for all outstanding shares of Common Stock at the price and on
terms approved by the Board of Directors) (each, an "Acquiring Person"); (ii)
the tenth day (or such later day as may be determined by action of the Board of
Directors of the Company prior to such time as any person becomes an Acquiring
Person) after the date of the commencement of, or the first public announcement
of the intent of any person (other than the Company or any Subsidiary) to
commence (which intention to commence remains in effect for five business days
after such announcement) a tender or an exchange offer by any person (other than
the Company or any of its Subsidiaries) to acquire (when added to any shares as
to which such person is the beneficial owner immediately prior to such
commencement) beneficial ownership of 15% or more of the issued and outstanding
shares of Common Stock; and (iii) the tenth day (or such later day as may be
determined by action of the Board of Directors of the Company prior to such time
as any person becomes an Acquiring Person) after the filing by any Person (other
than the Company or any of its Subsidiaries) of a registration statement under
the Securities Act of 1933, as amended, with respect to a contemplated exchange
offer to acquire (when added to any shares as to which such person is the
beneficial owner immediately prior to such filing) beneficial ownership of 15%
or more of the issued and outstanding shares of Common Stock (the earliest of
such dates being called the "Distribution Date"), the Rights will be evidenced,
with respect to any of the Company's Common Stock certificates outstanding as of
the Record Date, by such Common Stock certificate and this Summary.
The Rights Agreement provides that, until the Distribution Date, the
Rights will be transferred with and only with the Common Stock. New Common Stock
certificates issued after the Record Date upon transfer or new issuance of the
Common Stock will contain a notation incorporating the Rights Agreement by
reference. Until the Distribution Date, the surrender for transfer of any of the
Common Stock certificates outstanding as of the date of the Rights Agreement
(whether or not containing a notation contemplated by the original Rights
Agreement dated September 20, 1990) will also constitute the transfer of the
Rights associated with the Common Stock represented by such certificate and the
number of Rights associated with each share of Common Stock shall be
proportionately adjusted in the event of any dividend in Common Stock on the
Common Stock or subdivision, combination or reclassification of the Common Stock
(except as otherwise provided in the Rights Agreement). 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 Stock
as of the close of business on the Distribution Date and such separate
certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The
Rights will expire on October 2, 2010, unless earlier redeemed by the Company as
described below. A committee of independent directors of the Company will review
the Rights Agreement at least once every two years and recommend to the
Company's Board whether the Plan should be amended or the Rights redeemed.
The Purchase Price payable, and the number of shares of Common Stock
or other securities or property issuable, upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution (i) in the event of
a stock dividend on, or a subdivision, combination or reclassification of the
Preferred Stock or the Common Stock, (ii) upon the grant to holders of Preferred
Stock of certain rights or warrants to subscribe for shares of Preferred Stock
or convertible securities at less than the current market price of the Preferred
Stock or (iii) upon the distribution to holders of Preferred Stock of evidences
of indebtedness or assets (excluding regular periodic cash dividends or
dividends payable in Preferred Stock) or of subscription rights or warrants
(other than those referred to above).
In the event that any person becomes an Acquiring Person, the Rights
Agreement provides that proper provision would be made so that each holder of a
Right, other than the Acquiring Person and certain of its transferees (whose
Rights would thereafter be null and void), would thereafter have the right to
receive upon exercise of a Right, that number of shares of the Common Stock
having a market value of two times the exercise price of the Right. In the event
that, at any time after the Rights become exercisable, the Company is acquired
in a merger or other business combination, proper provision shall be made so
that each holder of a Right, other than the Acquiring Person and certain of its
transferees (whose Rights would thereafter be null and void), shall 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
surviving company (or its parent company or other controlling entity) which at
the time of such transaction would have a market value of two times the exercise
price of the Right.
At any time after the Rights become exercisable and prior to the
time that any person or group becomes the beneficial ownership of 50% or more of
the outstanding Common Stock, the Board of Directors may exchange the Rights
(other than Rights held by any Acquiring Person or its transferees, which would
thereafter be null and void) for Common Stock at a ratio of one share of Common
Stock per Right, appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof.
Preferred Stock purchasable upon exercise of the Rights will not be
redeemable. Each share of Preferred Stock will be entitled to a minimum
preferential quarterly dividend payment of $1 but will be entitled to an
aggregate dividend of 100 times the dividend declared per share of Common Stock.
In the event of liquidation, the holders of the Preferred Stock will be entitled
to a minimum preferential liquidation payment of $40 per share. Each share of
Preferred Stock will have one hundred votes, voting together with the Common
Stock. Finally, in the event of any merger, consolidation or other transaction
in which shares of Common Stock are exchanged, each share of Preferred Stock
will be entitled to receive 100 times the amount received per share of Common
Stock. These rights are protected by customary antidilution provisions.
Because of the nature of the Preferred Stock's dividend and
liquidation rights, the value of the one one-hundredth interest in a share of
Preferred Stock purchasable upon exercise of each Right should approximate the
value of one share of Common Stock.
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 shares (other than fractions that are
integral multiples of one one-hundredth) will be issued and, in lieu thereof, an
adjustment in cash will be made based on the market price of the Preferred Stock
on the last trading date prior to the date of exercise.
At any time prior to the close of business on the date that Rights
holders become entitled to purchase Common Stock of the Company with a market
value of twice the Purchase Price (as described above), the Company may redeem
the Rights in whole, but not in part, at a price of $.01 per Right (payable in
cash, shares of Common Stock or other consideration), appropriately adjusted to
reflect any stock split, stock dividend or similar transaction occurring after
the date hereof (the "Redemption Price"). Immediately upon the action of the
Board of Directors of the Company electing to redeem 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.
Until a Right is exercised, the holder thereof, as such, will have
no rights as a stockholder of the Company, including, without limitation, no
right to vote or to receive dividends.
At any time prior to the time that an Acquiring Person has become
such, the Company may amend the Rights Agreement and the terms of the Rights in
any manner deemed necessary or desirable. Thereafter, the Rights Agreement and
the terms of the Rights may be amended by the Company under certain
circumstances, but not in any manner that adversely affects the interests of the
holders of the Rights (other than an Acquiring Person).
A copy of the Rights Agreement is being filed with the Securities
and Exchange Commission as an Exhibit to a Registration Statement on Form 8-A. A
copy of the Rights Agreement will be available free of charge from the Company.
This summary description of the Rights does not purport to be complete and is
qualified in its entirety by reference to the Rights Agreement, which is
incorporated herein by reference.
