SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF
SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Excel Industries, Inc.
(Exact name of registrant as specified in its charter)
35-1551685
(I.R.S. Employer
Identification No.)
1120 North Main Street 46515-3118
P.O. Box 3118 (Zip Code)
Elkhart, Indiana
(Address of principal executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
Rights to Purchase Preferred Shares New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of Class)
Item 1. Description of Registrant's Securities to be Registered
On December 21, 1995, the Board of Directors of Excel
Industries, Inc. (the "Company") declared a dividend of one Right
for each outstanding common share, no par value, of the Company
(the "Common Shares"), payable on January 22, 1996 to shareholders
of record at the close of business on that date. Each Right
entitles the registered holder to purchase from the Company a unit
(the "Unit") consisting of one one hundredth of a Series A Junior
Participating Preferred Share, stated value $l.00 per share (the
"Preferred Shares"), at a Purchase Price of $50.00 per Unit,
subject to adjustment. The description and terms of the Rights are
set forth in a Rights Agreement dated as of December 21, 1995 (the
"Rights Agreement") between the Company and Chemical Mellon
Shareholder Services, L.L.C., as Rights Agent.
Initially, the Rights will be attached to all certificates
representing outstanding Common Shares, and no separate Rights
Certificates will be distributed. The Rights will separate from
the Common Shares and a "Distribution Date" will occur upon the
earlier of (i) ten days following a public announcement that a
person or group of affiliated or associated persons (an "Acquiring
Person") has acquired, or obtained the right to acquire, beneficial
ownership of 20% or more of the outstanding the Common Shares (the
date of the announcement being the "Shares Acquisition Date"), or
(ii) ten business days (or such later date as may be determined by
the Company's Board of Directors (with the concurrence of a
majority of the Continuing Directors (as defined below)) before the
Distribution Date occurs) following the commencement of a tender
offer or exchange offer that would result in a person's becoming an
Acquiring Person. Until the Distribution Date, (a) the Rights will
be evidenced by the Common Shares certificates (together with a
copy of this Summary of Rights or bearing the notation referred to
below) and will be transferred with and only with such Common Share
certificates, (b) new Common Share certificates issued after
January 22, 1996 will contain a notation incorporating the Rights
Agreement by reference and (c) the surrender for transfer of any
certificate for Common Shares outstanding (with or without a copy
of this Summary of Rights) will also constitute the transfer of the
Rights associated with the Common Shares represented by such
certificate. The Company, its subsidiaries and their employee
benefit plans will not at any time be deemed Acquiring Persons.
The Rights are not exercisable until the Distribution Date and
will expire at the close of business on January 22, 2006, unless
earlier redeemed or exchanged by the Company as described below.
Pursuant to the Rights Agreement, the Company reserves the right to
require prior to the occurrence of a Triggering Event (as defined
below) that, upon any exercise of Rights, a number of Rights be
exercised so that only whole Preferred Shares will be issued.
As soon as practicable after the Distribution Date, Rights
Certificates will be mailed to holders of record of the Common
Shares as of the close of business on the Distribution Date and,
from and after the Distribution Date, the separate Rights
Certificates alone will represent the Rights. All Common Shares
issued prior to the Distribution Date will be issued with Rights.
Common Shares issued after the Distribution Date in connection with
certain employee benefit plans or upon exercise or conversion of
certain securities will be issued with Rights. Except as otherwise
determined by the Board of Directors, no other Common Shares issued
after the Distribution Date will be issued with Rights.
In the event that a Person becomes an Acquiring Person, each
holder of a Right will thereafter have the right to receive, upon
exercise of such Right, a number of Common Shares (or, in certain
circumstances, cash, property or other securities of the Company)
having a Current Market Price (as defined in the Rights Agreement)
equal to two times the exercise price of the Right.
Notwithstanding any of the foregoing, following the occurrence of
any such event, all Rights that are, or (under certain
circumstances specified in the Rights Agreement) were, beneficially
owned by any Acquiring Person (or by certain related parties) will
be null and void in the circumstances set forth in the Rights
Agreement. However, Rights are not exercisable following the
occurrence of any such event until such time as the Rights are no
longer redeemable by the Company as set forth below.
For example, at an exercise price of $50.00 per Right, each
Right not owned by an Acquiring Person (or by certain related
parties) following an event set forth in the preceding paragraph
would entitle its holder to purchase $100.00 worth of the Common
Shares (or other consideration, as noted above), based upon their
Current Market Price, for $50.00. Assuming that the Common Shares
had a Current Market Price of $20.00 per share at such time, the
holder of each valid Right would be entitled to purchase 5 Common
Shares for $50.00.
In the event that, at any time on or after the Shares
Acquisition Date, (i) the Company is acquired in a merger or other
business combination transaction or (ii) 50% or more of the
Company's assets or earning power is sold or transferred, each
holder of a Right (except Rights that previously have been voided
as set forth above) shall thereafter have the right to receive,
upon exercise, a number of common shares of the acquiring company
having a Current Market Price equal to two times the exercise price
of the Right. The events described in this and the two preceding
paragraphs are collectively referred to as "Triggering Events."
The Purchase Price payable, and the number of Units of
Preferred Shares 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
Shares, (ii) if holders of the Preferred Shares are granted certain
rights or warrants to subscribe for Preferred Shares or convertible
securities at less than the current market price of the Preferred
Shares, or (iii) upon the distribution to holders of the Preferred
Shares of evidences of indebtedness or assets (excluding regular
quarterly cash dividends) or of subscription rights or warrants
(other than those referred to above).
The number of outstanding Rights and the number of Units
issuable upon exercise of each Right are also subject to adjustment
in the event of a stock split of the Common Shares or a stock
dividend on the Common Shares payable in Common Shares or
subdivisions, consolidations or combinations of the Common Shares
occurring, in any such case, prior to the Distribution Date.
The Preferred Shares purchasable upon exercise of the Rights
will not be redeemable. Each Preferred Share will be entitled to
a minimum preferential quarterly dividend payment of $1 per share
but will be entitled to an aggregate dividend of 100 times the
dividend declared per Common Share. In the event of liquidation,
the holders of the Preferred Shares will be entitled to a minimum
preferential liquidation payment of $100 per share but will be
entitled to an aggregate payment of 100 times the payment made per
Common Share. Each Preferred Share will have 100 votes, voting
together with the Common Shares. Finally, in the event of any
merger, consolidation or other transaction in which the Common
Shares are exchanged, each Preferred Share will be entitled to
receive 100 times the amount received per Common Share. These
rights are protected by customary antidilution provisions.
Because of the nature of the dividend, liquidation and voting
rights of the Preferred Shares, the value of the one one hundredth
interest in a Preferred Share purchasable upon exercise of each
Right should approximate the value of one Common Share.
With certain exceptions, no adjustment in the Purchase Price
will be required until cumulative adjustments amount to at least 1%
of the Purchase Price. No fractional Units will be issued and, in
lieu thereof, an adjustment in cash will be made based on the
market price of the Preferred Shares on the last trading date prior
to the date of exercise.
At any time until ten days following the Shares Acquisition
Date, the Company may redeem the Rights in whole, but not in part,
at a price of $.01 per Right, payable, at the option of the
Company, in cash, Common Shares or such other consideration as the
Board of Directors may determine. Under certain circumstances set
forth in the Rights Agreement, the decision to redeem the Rights
will require the concurrence of a majority of the Continuing
Directors (as defined below). After the redemption period has
expired, the Company's right of redemption may be reinstated (with
the concurrence of the Continuing Directors) if an Acquiring Person
reduces his beneficial ownership to 20% or less of the outstanding
Common Shares in a transaction or series of transactions not
involving the Company and there are no other Acquiring Persons.
Immediately upon the effectiveness of the action of the Board of
Directors ordering redemption of the Rights, the Rights will
terminate and the only right of the holders of Rights will be to
receive the $.01 redemption price.
The term "Continuing Director" means (i) any member of the
Board of Directors of the Company who was a member of the Board as
of December 21, 1995, and (ii) any person who is subsequently
elected to the Board, if such person is recommended or approved by
a majority of the Continuing Directors then on the Board of
Directors, and such person is not an Acquiring Person or an
affiliate, associate, representative or nominee of an Acquiring
Person.
At any time after a Person becomes an Acquiring Person, the
Company may exchange the Rights (other than Rights owned by an
Acquiring Person or an affiliate or an associate of an Acquiring
Person, which will have become void), in whole or in part, at an
exchange ratio of one Common Share, and/or other equity securities
deemed to have the same value as one Common Share, per Right,
subject to adjustment.
Until a Right is exercised, the holder thereof, as such, will
have no rights as a shareholder of the Company, including, without
limitation, the right to vote or to receive dividends. While the
distribution of the Rights will not be taxable to shareholders or
to the Company, shareholders may, depending upon the circumstances,
recognize taxable income in the event that the Rights become
exercisable for Common Shares (or other consideration) of the
Company or for common shares of the acquiring company as set forth
above or are exchanged as provided in the preceding paragraph.
Other than those provisions relating to the principal economic
terms of the Rights, any of the provisions of the Rights Agreement
may be amended by the Board of Directors (but only with the
concurrence of a majority of the Continuing Directors) of the
Company prior to the Shares Acquisition Date. Thereafter, the
provisions of the Rights Agreement may be amended by the Board of
Directors (but only with the concurrence of a majority of the
Continuing Directors) in order to cure any ambiguity, defect or
inconsistency, to make changes that do not materially adversely
effect the interests of holders of Rights (excluding the interests
of any Acquiring Person and certain related parties), or to shorten
or lengthen any time period under the Rights Agreement; provided,
however, that no amendment to lengthen the time period governing
redemption shall be made at such time as the Rights are not
redeemable.
A copy of the Rights Agreement has been filed with the
Securities and Exchange Commission as an exhibit to this
Registration Statement on Form 8-A. This summary description of
the Rights does not purport to be complete and is qualified in its
entirety by reference to the Rights Agreement.
Item 2. Exhibits
I.1.Rights Agreement dated as of December 21, 1995, between
Excel Industries, Inc. and Chemical Mellon Shareholder Services,
L.L.C., as Rights Agent, which includes as Exhibit A the text of
new Clause (h) of Section 2, Articles VI of the Articles of
Incorporation of Excel Industries, Inc. setting forth the terms of
the Series A Junior Participating Referred Shares, as Exhibit B the
form of Rights Certificate and as Exhibit C the Summary of Rights
to Purchase Shares.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this
Registration Statement to be signed on its behalf by the
undersigned, thereto duly authorized.
EXCEL INDUSTRIES, INC.
Date: January 5, 1996
By: /s/ Joseph A. Robinson
Joseph A. Robinson, Secretary,
Treasurer and Chief Financial
Officer
EXHIBIT INDEX
Exhibit Description Page
Number Number
I.1. Rights Agreement dated as of December 21,
1995, between Excel Industries, Inc. and
Chemical Mellon Shareholder Services,
L.L.C., as Rights Agent, which
includes as Exhibit A the text of new
Clause (h) of Section 2, Articles VI
of the Articles of Incorporation of Excel
Industries, Inc. setting forth the terms
of the Series A Junior Participating
Referred Shares, as Exhibit B the form
of Rights Certificate and as Exhibit C
the Summary of Rights to Purchase Shares.
EXCEL INDUSTRIES, INC.
AND
CHEMICAL MELLON SHAREHOLDER SERVICES L.L.C.
RIGHTS AGENT
RIGHTS AGREEMENT
DATED AS OF December 21, 1995
<PAGE>
Section 1.Certain Definitions . . . . . . . . . . . . . . 1
Section 2.Appointment of Rights Agent . . . . . . . . . . 6
Section 3.Issue of Rights Certificates. . . . . . . . . . 6
Section 4.Form of Rights Certificates . . . . . . . . . . 8
Section 5.Countersignature and Registration . . . . . . . 9
Section 6.Transfer, Split Up, Combination, and Exchange of
Rights Certificates; Mutilated, Destroyed, Lost or Stolen
Rights Certificates . . . . . . . . . . . . . . . . . . 9
Section 7.Exercise of Rights; Purchase Price; Expiration Date
of Rights . . . . . . . . . . . . . . . . . . . . . . . 10
Section 8.Cancellation and Destruction of Rights
Certificates . . . . . . . . . . . . . . . . . . . . . . . 12
Section 9.Reservation and Availability of Capital Shares. 12
Section 10.Preferred Share Record Date. . . . . . . . . . 13
Section 11.Adjustment of Purchase Price . . . . . . . . . 14
Section 12.Certificate of Adjusted Purchase Price or
Number of Shares . . . . . . . . . . . . . . . . . . . . 21
Section 13.Consolidation, Merger or Sale of Transfer of
Assets or Earning Power . . . . . . . . . . . . . . . . 21
Section 14.Fractional Rights and Fractional Shares. . . . 23
Section 15.Rights of Action . . . . . . . . . . . . . . . 24
Section 16.Agreement of Rights Holders. . . . . . . . . . 25
Section 17.Rights Certificate Holder Not Deemed
a Shareholder . . . . . . . . . . . . . . . . . . . . . . 25
Section 18.Concerning the Rights Agent. . . . . . . . . . 26
Section 19.Merger or Consolidation or Change of Name of
Rights Agents . . . . . . . . . . . . . . . . . . . . . 26
Section 20.Duties of Rights Agent . . . . . . . . . . . . 27
Section 21.Change of Rights Agent . . . . . . . . . . . . 28
Section 22.Issuance of New Rights Certificates. . . . . . 29
Section 23.Redemption and Termination . . . . . . . . . . 29
Section 24.Exchange . . . . . . . . . . . . . . . . . . . 31
Section 25.Notice of Certain Events . . . . . . . . . . . 32
Section 26.Notices. . . . . . . . . . . . . . . . . . . . 32
Section 27.Supplements and Amendments . . . . . . . . . . 33
Section 28.Successors . . . . . . . . . . . . . . . . . . 34
Section 29.Determinations and Actions by the
Board of Directors, etc . . . . . . . . . . . . . . . . . 34
Section 30.Benefits of this Agreement . . . . . . . . . . 34
Section 31.Severability . . . . . . . . . . . . . . . . . 34
Section 32.Governing Law. . . . . . . . . . . . . . . . . 35
Section 33.Counterparts . . . . . . . . . . . . . . . . . 35
Section 34.Descriptive Headings . . . . . . . . . . . . . 35
EXHIBITS
Exhibit A: Form of New Clause (h), Section 2, Article VI of the
Amended and Restated Articles of Incorporation of Excel
Industries, Inc.: Designation of Series A Junior
Participating Preferred Shares A-1
Exhibit B: Form of Rights Certificate B-1
Exhibit C: Summary of Rights to Purchase Preferred Shares C-1
RIGHTS AGREEMENT
This Rights Agreement, dated as of December 21, 1995 (the
"Agreement"), between Excel Industries, Inc., an Indiana
corporation (the "Company"), and Chemical Mellon Shareholder
Services L.L.C., a New Jersey limited liability company (the
"Rights Agent"),
W I T N E S S E T H:
WHEREAS, on December 21, 1995 (the "Rights Dividend
Declaration Date"), the Board of Directors of the Company
authorized and declared a dividend of one Right for each common
share, no par value, of the Company (the "Common Shares")
outstanding at the close of business on January 22, 1996 (the
"Record Date"), and has authorized the issuance of one Right (as
such number may hereinafter be adjusted pursuant to the provisions
of this Agreement) for each Common Share of the Company issued
(whether originally issued or delivered from the Company's
treasury) between the Record Date and the earlier of the
Distribution Date (as hereinafter defined) and the expiration or
redemption of the Rights, and, in certain circumstances, after the
Distribution Date, each Right initially representing the right to
purchase one one hundredth of a Series A Junior Participating
Preferred Share of the Company, upon the terms and subject to the
conditions hereinafter set forth (the "Rights");
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as
follows:
Section 1.Certain Definitions. For purposes of this
Agreement, the following terms shall have the meanings indicated:
"Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall
be the Beneficial Owner of twenty percent (20%) or more of the
Common Shares then outstanding, but shall not include any Exempt
Person; provided, however, that if the Board of Directors of the
Company determines in good faith that a Person who would otherwise
be an "Acquiring Person" became such inadvertently (including,
without limitation, because (i) such Person was unaware that it
beneficially owned a percentage of the outstanding Common Shares
that would otherwise cause such Person to be an "Acquiring Person"
or (ii) such Person was aware of the extent of its Beneficial
Ownership of the Common Shares but had no actual knowledge of the
consequences of such Beneficial Ownership under this Agreement) and
without any intention of changing or influencing control of the
Company, and if such Person as promptly as practicable divested or
divests itself of Beneficial Ownership of a sufficient number of
the Common Shares so that such Person would no longer be an
"Acquiring Person," then such Person shall not be deemed to be or
to have become an "Acquiring Person" for any purposes of this
Agreement. Notwithstanding the foregoing, no Person shall become an
"Acquiring Person" as the result of an acquisition of the Common
Shares by the Company which, by reducing the number of shares
outstanding, increases the proportionate number of the Common
Shares beneficially owned by such Person to twenty percent (20%) or
more of the Common Shares then outstanding, provided, however, that
if a Person shall become the Beneficial Owner of twenty percent
(20%) or more of the Common Shares then outstanding by reason of
such share acquisitions by the Company and shall thereafter become
the Beneficial Owner of any additional Common Shares, then such
Person shall be deemed to be an "Acquiring Person" unless upon the
consummation of the acquisition of such additional Common Shares
such Person does not beneficially own twenty percent (20%) or more
of the Common Shares then outstanding.
"Adjustment Shares" shall have the meaning set forth in
Section 11(a)(ii) hereof.
"Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Exchange Act, as in effect on the date of
this Agreement.
A Person shall be deemed the "Beneficial Owner" of, and shall
be deemed to "beneficially own," any securities:
(i) that such Person or any of such Person's Affiliates
or Associates, directly or indirectly, is the "beneficial owner" of
(as determined pursuant to Rule 13d-3 of the General Rules and
Regulations under the Exchange Act, as in effect on the date of
this Agreement) or otherwise has the right to vote or dispose of,
including pursuant to any agreement, arrangement or understanding
(whether or not in writing); provided, however, that a Person shall
not be deemed the "Beneficial Owner" of, or to "beneficially own,"
any security under this subparagraph (i) as a result of an
agreement, arrangement or understanding to vote such security if
such agreement, arrangement or understanding: (A) arises solely
from a revocable proxy given in response to a public proxy or
consent solicitation made pursuant to, and in accordance with, the
applicable provisions of the General Rules and Regulations under
the Exchange Act and (B) is not also then reportable by such Person
on Schedule 13D under the Exchange Act (or any comparable or
successor report);
(ii) that such Person or any of such Person's Affiliates
or Associates, directly or indirectly, has the right or
obligation to acquire (whether such right or obligation is
exercisable or effective immediately or only after the passage
of time) pursuant to any agreement, arrangement or understanding
(whether or not in writing) or upon the exercise of conversion
rights, exchange rights, other rights, warrants or options, or
otherwise; provided, however, that a Person shall not be
deemed the "Beneficial Owner" of, or to "beneficially own," (A)
securities tendered pursuant to a tender or exchange offer made by
such Person or any of such Person's Affiliates or
Associates until such tendered securities are accepted for
purchase or exchange, or (B) securities issuable upon exercise
of Rights at any time prior to the occurrence of a Triggering
Event, or (C) securities issuable upon exercise of Rights from and
after the occurrence of a Triggering Event which Rights were
acquired by such Person or any of such Person's
Affiliates or Associates prior to the Distribution Date or pursuant
to Section 3(a) or Section 22 hereof (the "Original Rights") or
pursuant to Section 11(i) or Section 11(p) hereof in
connection with an adjustment made with respect to any
Original Rights; or
(iii) that are beneficially owned, directly or
indirectly, by any other Person (or any Affiliate or Associate
thereof) with which such Person or any of such Person's Affiliates
or Associates has any agreement, arrangement or understanding
(whether or not in writing) for the purpose of acquiring, holding,
voting (except pursuant to a revocable proxy as described in the
proviso to subparagraph (i) of this definition) or
disposing of any voting securities of the Company;
provided, however, that nothing in this definition shall cause a
Person engaged in business as an underwriter of securities to be
the "Beneficial Owner" of, or to "beneficially own," any securities
acquired through such Person's participation in good faith in a
firm commitment underwriting until the expiration of forty days
after the date of such acquisition.
"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.
"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.
"Closing Price" of a security for any day shall mean the last
sales price, regular way, on such day or, in case no such sale
takes place on such day, the average of the closing bid and asked
prices, regular way, on such day, 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 Shares
Exchange, or, if such security is not listed or admitted to trading
on the New York Shares Exchange, as reported in the principal
consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on
which such security is listed or admitted to trading, or, if such
security is not listed or admitted to trading on any national
securities exchange, the last quoted sales price on such day or, if
not so quoted, the average of the high bid and low asked prices in
the over the counter market on such day, as reported by the Nasdaq
Stock Market or such other self regulatory organization or
registered securities information processor (as such terms are used
under the Exchange Act) that then reports information concerning
such security or, if on such day such security is not quoted by any
such entity, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in such
security selected by the Board of Directors of the Company. If on
such day no market maker is making a market in such security, the
fair value of such security on such day as determined in good faith
by the Board of Directors of the Company shall be used.
"Common Shares" shall mean the common shares, no par value, of
the Company, except that "Common Shares" when used with reference
to shares issued by any Person other than the Company shall mean
the capital shares of such Person with the greatest voting power,
or the equity securities or other equity interest having power to
control or direct the management, of such Person.
"Common Share Equivalents" shall have the meaning set forth in
Section 11(a)(iii) hereof.
"Company" shall mean the Person named as the "Company" in the
preamble of this Agreement until a successor Person shall have
become such or until a Principal Party shall assume, and thereafter
be liable for, all obligations and duties of the Company hereunder,
pursuant to the applicable provisions of this Agreement, and
thereafter "Company" shall mean such successor Person or Principal
Party.
"Continuing Director" shall mean any member of the Board of
Directors of the Company (while such person is a member of such
Board of Directors) who either (i) was a member of such Board of
Directors as of the date hereof or (ii) is not an Acquiring Person,
an Affiliate or Associate of an Acquiring Person, or a
representative or nominee of an Acquiring Person or of any such
Affiliate or Associate, and subsequently became a member of such
Board of Directors, and whose nomination for election or election
thereto was recommended or approved by a majority of the Continuing
Directors then on such Board of Directors.
"Current Market Price" shall have the meaning set forth in
Section 11(d) hereof.
"Current Value" shall have the meaning set forth in Section
11(a)(iii) hereof.
"Distribution Date" shall mean the earliest of (i) the close
of business on the tenth day after the Shares Acquisition Date (or,
if the tenth day after the Shares Acquisition Date occurs before
the Record Date, the close of business on the Record Date) or (ii)
the close of business on the tenth Business Day (or such later date
as may be determined by the Company's Board of Directors (which
determination shall be effective only with the concurrence of a
majority of the Continuing Directors) before the Distribution Date
occurs) after the date that a tender offer or exchange offer by any
Person (other than any Exempt Person) is first published or sent or
given within the meaning of Rule 14d-2(a) of the General Rules and
Regulations under the Exchange Act, as in effect on the date of
this Agreement, if upon consummation thereof, such Person would be
an Acquiring Person. The Board of Directors of the Company may
defer the date set forth in clause (ii) of the preceding sentence
to a specified later date or to an unspecified later date to be
determined by a subsequent action or event.
"Equivalent Preferred Shares" shall have the meaning set forth
in Section 11(b) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Exchange Ratio" shall have the meaning set forth in Section
24 hereof.
"Exempt Person" shall mean the Company, any Subsidiary of the
Company, any employee benefit plan of the Company or of any
Subsidiary of the Company, and any Person organized, appointed or
established by the Company for or pursuant to the terms of any such
plan.
"Expiration Date" shall mean the earlier of (i) the Final
Expiration Date and (ii) the time at which the Rights are redeemed
as provided in Section 23 hereof.
"Final Expiration Date" shall mean the close of business on
January 22, 2006.
"Original Rights" shall have the meaning set forth in the
definition of "Beneficial Owner."
"Person" shall mean any individual, firm, corporation,
partnership, limited liability company, association, trust,
unincorporated organization or other entity.
"Preferred Shares" shall mean Series A Junior Participating
Preferred Shares, stated value $1.00 per share, of the Company
having the rights, powers and preferences set forth in the form of
a new clause (h), Section 2, Article VI of the Articles of
Incorporation of the Company attached hereto as Exhibit A and, to
the extent that there is not a sufficient number of Series A Junior
Participating Preferred Shares authorized to permit the full
exercise of the Rights, any other series of preferred shares,
stated value $1.00 per share, of the Company designated for such
purpose containing terms substantially similar to the terms of the
Series A Junior Participating Preferred Shares.
"Principal Party" shall have the meaning set forth in Section
13(b) hereof.
"Purchase Price" shall have the meaning set forth in Section
4(a) hereof.
"Record Date" shall have the meaning set forth in the recitals
clause at the beginning of this Agreement.
"Redemption Price" shall have the meaning set forth in Section
23(a) hereof.
"Rights" shall have the meaning set forth in the recitals
clause at the beginning of this Agreement.
"Rights Agent" shall mean the Person named as the "Rights
Agent" in the preamble of this Agreement until a successor Rights
Agent shall have become such pursuant to the applicable provisions
hereof, and thereafter "Rights Agent" shall mean such successor
Rights Agent. If at any time there is more than one Person
appointed by the Company as Rights Agent pursuant to the applicable
provisions of this Agreement, "Rights Agent" shall mean and include
each such Person.
"Rights Certificates" shall mean the certificates evidencing
the Rights after the Distribution Date.
"Rights Dividend Declaration Date" shall have the meaning set
forth in the recitals clause at the beginning of this Agreement.
"Section 11(a)(ii) Event" shall mean an event described in
Section 11(a)(ii) hereof.
"Section 11(a)(ii) Trigger Date" shall have the meaning set
forth in Section 11(a)(iii) hereof.
"Section 13 Event" shall mean any event described in clause
(x), (y) or (z) of Section 13(a) hereof.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Spread" shall have the meaning set forth in Section
11(a)(iii) hereof.
"Shares Acquisition Date" shall mean the first date of public
announcement (which, for purposes of this definition, shall
include, without limitation, a report filed pursuant to Section
13(d) of the Exchange Act) by the Company or an Acquiring Person
that an Acquiring Person has become such, which date may occur
prior to the Record Date.
"Subsidiary" shall mean, with reference to any Person, any
corporation or other Person of which an amount of voting securities
sufficient to elect at least a majority of the directors or other
persons performing similar functions is beneficially owned,
directly or in directly, by such Person, or otherwise controlled by
such Person.
"Substitution Period" shall have the meaning set forth in
Section 11(a)(iii) hereof.
"Summary of Rights" shall mean the Summary of Rights to
Purchase Preferred Shares sent pursuant to Section 3(b) hereof.
"Trading Day" with respect to a security shall mean a day on
which the principal national securities exchange on which such
security is listed or admitted to trading is open for the
transaction of business or, if such security is not listed or
admitted to trading on any national securities exchange, a Business
Day.
"Triggering Event" shall mean any Section 11(a)(ii) Event or
any Section 13 Event.
Section 2.Appointment of Rights Agent. The Company hereby
appoints the Rights Agent to act as agent for the Company and the
holders of the Rights (who, in accordance with Section 3 hereof,
shall prior to the Distribution Date also be the holders of the
Common Shares) in accordance with the terms and conditions hereof,
and the Rights Agent hereby accepts such appointment. The Company
may from time to time appoint such Co-Rights Agents as it may deem
necessary or desirable.
Section 3.Issue of Rights Certificates.
(a) Until the 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 Shares registered in
the names of the holders of the Common Shares and not by separate
certificates, and (y) the Rights will be transferable only in
connection with the transfer of the underlying the Common Shares
(including a transfer to the Company). As soon as practicable
after the Distribution Date, the Rights Agent will send by first
class, insured, postage prepaid mail, to each record holder of the
Common Shares as of the close of business on the Distribution Date,
at the address of such holder shown on the records of the Company,
one or more Rights Certificates, evidencing one Right for each
Common Share so held, subject to adjustment as provided herein. In
the event that an adjustment in the number of Rights per Common
Share has been made pursuant to the provisions of this Agreement,
at the time of distribution of the Right Certificates, the Company
shall make the necessary and appropriate rounding adjustments (in
accordance with Section 14(a) hereof) so that Rights Certificates
representing only whole numbers of Rights are distributed and cash
is paid in lieu of any fractional Rights. As of and after the
Distribution Date, the Rights will be evidenced solely by such
Rights Certificates.
(b) As promptly as practicable following the Record Date, the
Company will send a copy of a Summary of Rights to Purchase
Preferred Shares, in substantially the form attached hereto as
Exhibit C, by first class mail, postage prepaid, to each record
holder of the Common Shares as of the close of business on the
Record Date, at the address of such holder shown on the records of
the Company. With respect to certificates for the Common Shares
outstanding as of the Record Date, until the Distribution Date or
the earlier surrender for transfer thereof or the Expiration Date,
the Rights associated with the Common Shares represented by such
certificates shall be evidenced by such certificates for the Common
Shares together with a copy of the Summary of Rights, and the
registered holders of the Common Shares shall also be the
registered holders of the associated Rights. Until the earlier of
the Distribution Date or the Expiration Date, the transfer of any
of the certificates for the Common Shares outstanding on the Record
Date, with or without a copy of the Summary of Rights attached
thereto, shall also constitute the transfer of the Rights
associated with the Common Shares represented by such certificates.
(c) Rights shall be issued in respect of all the Common
Shares that are issued (whether originally issued or from the
Company's treasury) after the Record Date but prior to the earlier
of the Distribution Date or the expiration or redemption of the
Rights or, in certain circumstances provided in Section 22 hereof,
after the Distribution Date. Certificates issued for the Common
Shares that shall so become outstanding or shall be transferred or
exchanged after the Record Date but prior to the earlier of the
Distribution Date or the expiration or redemption of the Rights
shall also be deemed to be certificates for Rights, and shall bear
the following legend:
This certificate also evidences and entitles the holder
hereof to certain Rights as set forth in the Rights Agreement
between Excel Industries, Inc. (the "Company") and Chemical Mellon
Shareholder Services L.L.C. (the "Rights Agent") dated as of
December 21, 1995 as it may from time to time be
supplemented or amended (the "Rights Agreement"), the terms of
which are hereby incorporated herein by reference and a copy of
which is on file at the principal offices of the Company. Under
certain circumstances, as set forth in the Rights Agreement,
such Rights may be redeemed, may be exchanged, may expire or
may be evidenced by separate certificates and will no longer be
evidenced by this certificate. The Company will
mail to the holder of this certificate a copy of the Rights
Agreement, as in effect on the date of mailing, without charge
promptly after receipt of a written request therefor. Under certain
circumstances set forth in the Rights Agreement, Rights issued
to, or held by, any Person who is, was or becomes an Acquiring
Person or any Affiliate or Associate thereof (as such terms are
defined in the Rights Agreement), whether currently held by or on
behalf of such Person or by any subsequent
holder, will become null and void.
With respect to such certificates containing the foregoing
legend, until the earlier of (i) the Distribution Date or (ii) the
expiration or redemption of the Rights, the Rights associated with
the Common Shares represented by such certificates shall be
evidenced by such certificates alone, and registered holders of the
Common Shares shall also be the registered holders of the
associated Rights, and the transfer of any of such certificates
shall also constitute the transfer of the Rights associated with
the Common Shares represented by such certificates.
Section 4.Form of Rights Certificates.
(a) The Rights Certificates (and the forms of election to
purchase and of assignment to be printed on the reverse thereof),
when, as and if issued, shall be substantially in the form set
forth in Exhibit B hereto and may have such marks of identification
or designation and such legends, summaries or endorsements printed
thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Agreement, or as may be
required to comply with any applicable law or with any rule or
regulation made pursuant thereto or with any rule or regulation of
any shares exchange or quotation system on which the Rights may
from time to time be listed or quoted, or to conform to usage.
Subject to the provisions of Section 11 and Section 22 hereof, the
Rights Certificates, whenever issued, 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 Preferred Share as
shall be set forth therein at the price set forth therein (such
exercise price per one hundredth of a share, the "Purchase Price"),
but the amount and type of securities purchasable upon the exercise
of each Right and the Purchase Price thereof shall be subject to
adjustment as provided herein.
Any Rights Certificate issued pursuant to Section 3(a) or
Section 22 hereof that represents Rights beneficially owned by (i)
an Acquiring Person or an Associate or Affiliate of an Acquiring
Person, (ii) a direct or indirect transferee of an Acquiring Person
(or of any such Associate or Affiliate) who becomes a transferee
after the Acquiring Person becomes such or (iii) a direct or
indirect transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person's becoming such and receives
such Rights pursuant to either (A) a transfer (whether or not for
consideration) from the Acquiring Person to holders of equity
interests in such Acquiring Person or to any Person with whom such
Acquiring Person has any continuing agreement, arrangement or
understanding regarding the transferred Rights or (B) a transfer
that a majority of the Continuing Directors has determined is part
of a plan, arrangement or understanding that has as a primary
purpose or effect avoidance of Section 7(e) hereof, and any Rights
Certificate issued pursuant to Section 6 or Section 11 hereof upon
transfer, exchange, replacement or adjustment of any other Rights
Certificate referred to in this sentence, shall contain (to the
extent feasible) the following legend, modified as applicable to
apply to such Person:
The Rights represented by this Rights Certificate are or were
beneficially owned by a Person who was or became an Acquiring
Person or an Affiliate or Associate of an Acquiring Person (as such
terms are defined in the Rights Agreement). Accordingly, this
Rights Certificate and the Rights represented hereby will become
null and void in the circumstances and with the effect specified in
Section 7(e) of such Agreement.
The provisions of Section 7(e) of this Agreement shall be
operative whether or not the foregoing legend is contained on any
such Rights Certificate. The Company shall give notice to the
Rights Agent promptly after it becomes aware of the existence of
any Acquiring Person or any Associate or Affiliate thereof.
Section 5.Countersignature and Registration.
(a) The Rights Certificates shall be executed on behalf of
the Company by its President or any Vice President, either manually
or by facsimile signature, and shall have affixed thereto the
Company's seal or a facsimile thereof, which shall be attested by
the Secretary or an Assistant Secretary of the Company, either
manually or by facsimile signature. The Rights Certificates shall
be 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 any of the Rights Certificates
shall cease to be such officer of the Company before
countersignature by the Rights Agent and issuance and delivery by
the Company, such Rights Certificates, nevertheless, may be
countersigned by the Rights Agent and issued and delivered by the
Company with the same force and effect as though the person who
signed such Rights Certificates had not ceased to be such officer
of the Company; and any Rights Certificate may be signed on behalf
of the Company by any person who, at the actual date of the
execution of such Rights Certificate, shall be a proper officer of
the Company to sign such Rights Certificate, although at the date
of the execution of this Rights Agreement any such person was not
such an officer.
(b) Following the Distribution Date, the Rights Agent will
keep or cause to be kept, at its office or offices designated as
the appropriate place for surrender of Rights Certificates upon
exercise or transfer, books for registration and transfer of the
Rights Certificates issued hereunder. Such books shall show the
names and addresses of the respective holders of the Rights
Certificates, the number of Rights evidenced on its face by each of
the Rights Certificates and the certificate number and the date of
each of the Rights Certificates.
Section 6.Transfer, Split Up, Combination, and Exchange of
Rights Certificates; Mutilated, Destroyed, Lost or Stolen Rights
Certificates.
(a) Subject to the provisions of Section 4(b), Section 7(e),
Section 14 and Section 24 hereof, at any time after the close of
business on the Distribution Date, and at or prior to the close of
business on the Expiration Date, any Rights Certificate or Rights
Certificates may be transferred, split up, combined or exchanged
for another Rights Certificate or Rights Certificates, entitling
the registered holder to purchase a like number of one hundredths
of a Preferred Share (or, following a Triggering Event, the Common
Shares, other securities, cash or other assets, as the case may be)
as the Rights Certificate or Rights Certificates surrendered then
entitled such holder (or former holder in the case of a transfer)
to purchase. Any registered holder desiring to transfer, split up,
combine or exchange any Rights Certificate or Rights Certificates
shall make such request in writing delivered to the Rights Agent,
and shall surrender the Rights Certificate or Rights Certificates
to be transferred, split up, combined or exchanged at the office or
offices of the Rights Agent designated for such purpose. Neither
the Rights Agent nor the Company shall be obligated to take any
action whatsoever with respect to the transfer of any such
surrendered Rights Certificate until the registered holder shall
have completed and signed the certificate contained in the form of
assignment on the reverse side of such Rights Certificate and shall
have provided such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) thereof or of the
Affiliates or Associates thereof as the Company shall reasonably
request. Thereupon the Rights Agent shall, subject to Section
4(b), Section 7(e), Section 14 and Section 24 hereof, countersign
and deliver to the Person entitled thereto a Rights Certificate or
Rights Certificates, as the case may be, as so requested. The
Company may require payment by the holder of a sum sufficient to
cover any tax or governmental charge that may be imposed in
connection with any transfer, split up, combination or exchange of
Rights Certificates.
(b) Upon receipt by the Company and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Rights Certificate, and, in case of
loss, theft or destruction, of indemnity or security reasonably
satisfactory to them, and reimbursement to the Company and the
Rights Agent of all reasonable expenses incidental thereto, and
upon surrender to the Rights Agent and cancellation of the Rights
Certificate if mutilated, the Company will execute and deliver a
new Rights Certificate of like tenor to the Rights Agent for
countersignature and delivery to the registered owner in lieu of
the Rights Certificate so lost, stolen, destroyed or mutilated.
Section 7.Exercise of Rights; Purchase Price; Expiration Date
of Rights.
(a) Subject to Section 7(e) hereof, the registered holder of
any Rights Certificate may exercise the Rights evidenced thereby
(except as otherwise provided herein including, without limitation,
the restrictions on exercisability set forth in Section 9(c),
Section 11(a)(iii) and Section 23(a) hereof) in whole or in part at
any time after the Distribution Date upon surrender of the Rights
Certificate, with the form of election to purchase and the
certificate on the reverse side thereof duly executed, to the
Rights Agent at the office or offices of the Rights Agent
designated for such purpose, together with payment of the aggregate
Purchase Price with respect to the total number of one hundredths
of a Preferred Share (or other securities, cash or other assets, as
the case may be) as to which such surrendered Rights are then
exercisable, at or prior to the earliest of (i) the Expiration Date
and (ii) the time at which all outstanding Rights are exchanged as
provided in Section 24 hereof.
(b) The Purchase Price for each one hundredth of a Preferred
Share pursuant to the exercise of a Right shall initially be
$50.00, and shall be subject to adjustment from time to time as
provided in Sections 11 and 13(a) hereof and shall be payable in
accordance with paragraph (c) below.
(c) Upon receipt of a Rights Certificate representing
exercisable Rights, with the form of election to purchase and the
certificate on the reverse side thereof duly executed, accompanied
by payment, with respect to each Right so exercised, of the
Purchase Price per one one hundredth of a Preferred Share (or other
shares, securities, cash or other assets, as the case may be) to be
purchased as set forth below and an amount equal to any applicable
transfer tax, the Rights Agent shall, subject to Section 20(j)
hereof, thereupon promptly (i)(A) requisition from any transfer
agent of the Preferred Shares (or make available, if the Rights
Agent is the transfer agent for such shares) certificates for the
total number of one hundredths of a Preferred Share to be
purchased, and the Company hereby irrevocably authorizes its
transfer agent to comply with such requests, or (B) if the Company,
in its sole discretion, shall have elected to deposit the total
number of Preferred Shares issuable upon exercise of the Rights
hereunder with a depositary agent, requisition from the depositary
agent depositary receipts representing such number of one
hundredths of a Preferred Share as are to be purchased (in which
case certificates for the Preferred Shares represented by such
receipts shall be deposited by the transfer agent with the
depositary agent) and the Company will direct the depositary agent
to comply with such request, (ii) requisition from the Company the
amount of cash, if any, to be paid in lieu of fractional shares in
accordance with Section 14 hereof, (iii) after receipt of such
certificates or depositary receipts, cause the same to be delivered
to or upon the order of the registered holder of such Rights
Certificate, registered in such name or names as may be designated
by such holder and (iv) after receipt thereof, deliver such cash,
if any, to or upon the order of the registered holder of such
Rights Certificate. The payment of the Purchase Price (as such
amount may be reduced pursuant to Section 11(a)(iii) hereof) may be
made in cash or by certified check, cashiers or official bank check
or bank draft payable to the order of the Company or the Rights
Agent. In the event that the Company is obligated to issue other
securities (including the Common Shares) of the Company, pay cash
and/or distribute other property pursuant to Section 11(a) hereof,
the Company will make all arrangements necessary so that such other
securities, cash and/or other property are available for
distribution by the Rights Agent, if and when appropriate. The
Company reserves the right to require prior to the occurrence of a
Triggering Event that, upon exercise of Rights, a number of Rights
be exercised so that only whole Preferred Shares would be issued.
(d) In case the registered holder of any Rights Certificate
shall exercise less than all the Rights evidenced thereby, a new
Rights Certificate evidencing Rights equivalent to the Rights
remaining unexercised shall be issued by the Rights Agent and
delivered to, or upon the order of, the registered holder of such
Rights Certificate, registered in such name or names as may be
designated by such holder, subject to the provisions of Section 14
hereof.
(e) Notwithstanding anything in this Agreement to the
contrary, from and after the first occurrence of a Section
11(a)(ii) Event, any Rights beneficially owned by (i) an Acquiring
Person or an Associate or Affiliate of an Acquiring Person other
than any such Person that a majority of the Continuing Directors in
good faith determines was not involved in and did not cause or
facilitate, directly or indirectly (including through any change in
the Board of Directors), such Section 11(a)(ii) Event, (ii) a
direct or indirect transferee of such Acquiring Person (or of any
such Associate or Affiliate) who becomes a transferee after the
Acquiring Person becomes such or (iii) a direct or indirect
transferee of such Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee prior to or concurrently with
the Acquiring Person's becoming such and receives such Rights
pursuant to either (A) a transfer (whether or not for
consideration) from such Acquiring Person to holders of equity
interests in such Acquiring Person or to any Person with whom such
Acquiring Person has any continuing agreement, arrangement or
understanding regarding the transferred Rights or (B) a transfer
that a majority of the Continuing Directors has determined is part
of a plan, arrangement or understanding that has as a primary
purpose or effect the avoidance of this Section 7(e), shall become
null and void without any further action and no holder of such
Rights shall have any rights whatsoever with respect to such
Rights, whether under any provision of this Agreement or otherwise.
The Company shall use all reasonable efforts to ensure that the
provisions of this Section 7(e) and Section 4(b) hereof are
complied with, but shall have no liability to any holder of Rights
Certificates or other Person as a result of its failure to make any
determinations with respect to an Acquiring Person or its
Affiliates, Associates or transferees hereunder.
(f) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Company shall be
obligated to undertake any action with respect to a registered
holder upon the occurrence of any purported exercise as set forth
in this Section 7 unless such registered holder shall have (i)
completed and signed the certificate contained in the form of
election to purchase set forth on the reverse side of the Rights
Certificate surrendered for such exercise and (ii) provided such
additional evidence of the identity of the Beneficial Owner (or
former Beneficial Owner) or Affiliates or Associates thereof as the
Company shall reasonably request.
Section 8.Cancellation and Destruction of Rights Certificates.
All Rights Certificates surrendered for the purpose of exercise,
transfer, split up, combination or exchange shall, if surrendered
to the Company or any of its agents, be delivered to the Rights
Agent for cancellation or in canceled form, or, if surrendered to
the Rights Agent, shall be canceled by it, and no Rights
Certificates shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Agreement. The Company
shall deliver to the Rights Agent for cancellation and retirement,
and the Rights Agent shall so cancel and retire, any other Rights
Certificate purchased or acquired by the Company otherwise than
upon the exercise thereof. The Rights Agent shall deliver all
canceled Rights Certificates to the Company, or shall, at the
written request of the Company, destroy such canceled Rights
Certificates, and in such case shall deliver a certificate of
destruction thereof to the Company.
Section 9.Reservation and Availability of Capital Shares.
(a) The Company covenants and agrees that it will cause to be
reserved and kept available out of its authorized and unissued
Preferred Shares (and, following the occurrence of a Triggering
Event, out of its authorized and unissued Common Shares and/or
other securities or out of its authorized and issued shares held in
its treasury), the number of Preferred Shares (and, following the
occurrence of a Triggering Event, the Common Shares and/or other
securities) that, as provided in this Agreement, including Section
11(a)(iii) hereof, will be sufficient to permit the exercise in
full of all outstanding Rights.
(b) So long as the Preferred Shares (and, following the
occurrence of a Triggering Event, the Common Shares and/or other
securities) issuable and deliverable upon the exercise of the
Rights may be listed on any national securities exchange, the
Company shall use its best efforts to cause, from and after such
time as the Rights become exercisable, all shares reserved for such
issuance to be listed on such exchange upon official notice of
issuance upon such exercise.
(c) The Company shall use its best efforts to (i) prepare and
file, as soon as practicable following the first occurrence of a
Section 11(a)(ii) Event or, if applicable, as soon as practicable
following the earliest date after the first occurrence of a Section
11(a)(ii) Event on which the consideration to be delivered by the
Company upon exercise of the Rights has been determined pursuant to
this Agreement (including in accordance with Section 11(a)(iii)
hereof), a registration statement on an appropriate form under the
Securities Act with respect to the securities purchasable upon
exercise of the Rights, (ii) cause such registration statement to
become effective as soon as practicable after such filing, and
(iii) cause such registration statement to remain effective (with
a prospectus at all times meeting the requirements of the
Securities Act) until the earlier of (A) the date as of which the
Rights are no longer exercisable for such securities and (B) the
Expiration Date. The Company will also take such action as may be
appropriate under, or to ensure compliance with, the securities or
"blue sky" laws of the various states in connection with the
exercisability of the Rights. The Company may temporarily suspend,
for a period of time not to exceed 90 days after the date set forth
in clause (i) of the first sentence of this Section 9(c), the
exercisability of the Rights in order to prepare and file such
registration statement and permit it to become effective. Upon any
such suspension, the Company shall issue a public announcement
stating that the exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time as the
suspension is no longer in effect. In addition, if the Company
shall determine that the Securities Act requires an effective
registration statement under the Securities Act following the
Distribution Date, the Company may temporarily suspend the
exercisability of the Rights until such time as such a registration
statement has been declared effective. 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 any required
registration statement shall not have been declared effective.
(d) The Company covenants and agrees that it will take all such
action as may be necessary to ensure that all one hundredths of a
Preferred Share (and, following the occurrence of a Triggering
Event, the Common Shares and/or other securities) delivered upon
exercise of Rights shall, at the time of delivery of the
certificates for such shares (subject to payment of the Purchase
Price), be duly and validly authorized and issued and fully paid
and nonassessable.
(e) The Company further covenants and agrees that it will pay
when due and payable any and all federal and state transfer taxes
and charges that may be payable in respect of the issuance or
delivery of the Rights Certificates and of any certificates for a
number of one hundredths of a Preferred Share (or the Common Shares
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 that may be payable in respect of any transfer or
delivery of Rights Certificates to a Person other than, or the
issuance or delivery of a number of one hundredths of a Preferred
Share (or the Common Shares and/or other securities, as the case
may be) in respect of a name other than that of, the registered
holder of the Rights Certificates evidencing Rights surrendered for
exercise or to issue or deliver any certificates for a number of
one hundredths of a Preferred Share (or the Common Shares and/or
other securities, as the case may be) in a name other than that of
the registered holder upon the exercise of any Rights until such
tax shall have been paid (any such tax being payable by the holder
of such Rights Certificate at the time of surrender) or until it
has been established to the Company's satisfaction that no such tax
is due.
Section 10.Preferred Share Record Date. Each Person in whose
name any certificate for a number of one hundredths of a Preferred
Share (or the Common Shares and/or other securities, as the case
may be) is issued upon the exercise of Rights shall for all
purposes be deemed to have become the holder of record of such
Preferred Shares (fractional or otherwise)(or the Common Shares
and/or other securities, as the case may be) represented thereby
on, and such certificate shall be dated, the date upon which the
Rights Certificate evidencing such Rights was duly surrendered and
payment of the Purchase Price (and all applicable transfer taxes)
was made; provided, however, that if the date of such surrender and
payment is a date upon which the Preferred Shares (or the Common
Shares and/or other securities, as the case may be) transfer books
of the Company are closed, such Person shall be deemed to have
become the record holder of such shares (fractional or otherwise)
on, and such certificate shall be dated, the next succeeding
Business Day on which the Preferred Shares (or the Common Shares
and/or other securities, as the case may be) transfer books of the
Company are open. Prior to the exercise of the Rights evidenced
thereby, the holder of a Rights Certificate, as such, shall not be
entitled to any rights of a shareholder of the Company with respect
to shares for which the Rights shall be exercisable, including,
without limitation, the right to vote, to receive dividends or
other distributions or to exercise any preemptive rights, and shall
not be entitled to receive any notice of any proceedings of the
Company, except as provided herein.
Section 11.Adjustment of Purchase Price. The Purchase Price,
the number and kind of shares or other securities subject to
purchase upon exercise of 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
Rights Dividend Declaration Date (A) declare a dividend on the
Preferred Shares payable in Preferred Shares, (B) subdivide the
outstanding Preferred Shares, (C) combine the outstanding Preferred
Shares into a smaller number of shares or (D) issue any shares
of its capital shares in a reclassification of the Preferred Shares
(including any such reclassification in
connection with a consolidation or merger in which the Company is
the continuing or surviving corporation), except as otherwise
provided in this Section 11(a) and Section 7(e) hereof, the
Purchase Price in effect at the time of the record date for such
dividend or of the effective date of such
subdivision, combination or reclassification, and the number and
kind of Preferred Shares or capital shares, as the case may be,
issuable on such date, shall be proportionately adjusted so that
the holder of any Right exercised after such time shall be entitled
to receive, upon payment of the Purchase Price
then in effect, the aggregate number and kind of Preferred
Shares or capital shares, as the case may be, which, if such Right
had been exercised immediately prior to such date and at a
time when the Preferred Shares transfer books of the Company were
open, he would have owned upon such exercise and been
entitled to receive by virtue of such dividend, subdivision,
combination or reclassification. If an event occurs which would
require an adjustment under both this Section 11(a)(i) and
Section 11(a)(ii) hereof, the adjustment provided for in this
Section 11(a)(i) shall be in addition to, and shall be made prior
to, any adjustment required pursuant to Section
11(a)(ii) hereof.
Subject to Section 24 of this Agreement, in the
event any Person shall become an Acquiring Person, unless the event
causing such Person to become an Acquiring Person is a transaction
set forth in Section 13(a) hereof, then, promptly following the
occurrence of such event, each holder of a Right (except as
provided below and in Section 7(e) hereof) shall thereafter have
the right to receive, upon exercise thereof at the then current
Purchase Price in accordance with the terms of this Agreement, in
lieu of a number of one hundredths of a Preferred Share, such
number of the Common Shares of the Company as shall equal the
result obtained by (x) multiplying the then current Purchase Price
by the then number of one hundredths of a Preferred Share for which
a Right was exercisableimmediately prior to the first occurrence of
a Section 11(a)(ii) Event and (y) dividing that product (which
product, following such first occurrence, shall thereafter be the "Purchase
Price" for each Right and for all purposes of this Agreement) by
50% of the Current Market Price per Common Share on the date
of such first occurrence (such number of shares, the
"Adjustment Shares"); provided that the Purchase Price and the
number of Adjustment Shares shall be further adjusted as
provided in this Agreement to reflect any events occurring
after the date of such first occurrence.
(iii) In the event that the number of the Common Shares
that 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 subparagraph (ii) of this
Section 11(a), the Company shall, to the extent permitted by
applicable law and regulation, (A) determine the excess of (1) the
value of the Adjustment Shares issuable upon the exercise of a
Right (computed using the Current Market Price used to
determine the number of Adjustment Shares) (the "Current
Value") over (2) the Purchase Price (such excess is herein
referred to as the "Spread"), and (B) with respect to each
Right, make adequate provision to substitute for the Adjustment
Shares, upon the exercise of the Rights and payment of the
applicable Purchase Price, (1) cash, (2) a reduction in the
Purchase Price, (3) the Common Shares or other equity
securities of the Company (including, without limitation, preferred
shares, or units of preferred shares, that the Board of
Directors of the Company has deemed to have the same value as the
Common Shares (such preferred shares are herein referred to as the
"Common Share Equivalents")), (4) debt securities of the Company,
(5) other assets or (6) any combination of the foregoing, having an
aggregate value equal to the Current
Value, 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, if the Company shall
not have made adequate provision to deliver
value pursuant to clause (B) above within 30 days following the
later of (x) the first occurrence of a Section 11(a)(ii) Event and
(y) the date on which the Company's right of redemption pursuant
to Section 23(a) expires (the later of (x) and (y) being referred
to herein as the "Section 11(a)(ii) Trigger
Date"), then the Company shall be obligated to deliver, upon the
surrender for exercise of a Right and without requiring payment of
the Purchase Price, the Common Shares (to the extent available)
and then, if necessary, cash, which shares and/or cash have an
aggregate value equal to the Spread. If the Board of Directors of
the Company shall determine in good faith that it is likely that
sufficient additional Common Shares could be authorized for
issuance upon exercise in full of the Rights, the 30 day period
set forth above may be extended to the extent necessary, but not
more than 90 days after the Section
11(a)(ii) Trigger Date, in order that the Company may seek
shareholder approval for the authorization of such additional
shares (such period, as it may be extended, the "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)(iii), the Company (x) shall
provide, subject to Section 7(e) hereof, that such action shall
apply uniformly to all outstanding Rights, and (y) may suspend the
exercisability of the Rights until the expiration of the
Substitution Period in order to seek any authorization of
additional shares and/or to decide the appropriate form of
distribution to be made pursuant to such first sentence and to
determine the value thereof. In the event of any such
suspension, the Company shall issue a public announcement
stating that the exercisability of the Rights has been
temporarily suspended, as well as a public announcement at such
time as the suspension is no longer in effect. For purposes of
this Section 11(a)(iii), the value of the Common Shares
shall be the Current Market Price per Common Share on the
Section 11(a)(ii) Trigger Date and the value of any Common Share
Equivalent shall be deemed to have the same value as the Common
Shares on such date.
(b) In case the Company shall fix a record date for the
issuance of rights, options or warrants to all holders of Preferred
Shares entitling them to subscribe for or purchase (for a period
expiring within 45 calendar days after such record date) Preferred
Shares (or shares having the same rights, privileges and
preferences as the Preferred Shares ("Equivalent Preferred
Shares")) or securities convertible into Preferred Shares or
Equivalent Preferred Shares at a price per Preferred Share or per
Equivalent Preferred Share (or having a conversion price per share,
if a security convertible into Preferred Shares or Equivalent
Preferred Shares) less than the Current Market Price per Preferred
Share on such record date, the Purchase Price to be in effect after
such record date shall be determined by multiplying the Purchase
Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the number of Preferred
Shares outstanding on such record date, plus the number of
Preferred Shares that the aggregate offering price of the total
number of Preferred Shares and/or Equivalent Preferred Shares so to
be offered (and/or the aggregate initial conversion price of the
convertible securities so to be offered) would purchase at such
Current Market Price, and the denominator of which shall be the
number of Preferred Shares outstanding on such record date, plus
the number of additional Preferred Shares 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 by delivery of consideration, part or all of which may be in
a form other than cash, the value of such consideration shall be as
determined in good faith by the Board of Directors of the Company,
whose determination shall be described in a statement filed with
the Rights Agent and shall be binding on the Rights Agent and the
holders of the Rights. Preferred Shares owned by or held for the
account of the Company shall not be deemed outstanding for the
purpose of any such computation. Such adjustment shall be made
successively whenever such a record date is fixed, and in the event
that such rights, options or warrants are not so issued, the
Purchase Price shall be adjusted to be the Purchase Price which
would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a
distribution to all holders of Preferred Shares (including any such
distribution made in connection with a consolidation or merger in
which the Company is the continuing corporation) of evidences of
indebtedness, cash (other than a regular quarterly cash dividend
out of the earnings or retained earnings of the Company), assets
(other than a dividend payable in Preferred Shares, but including
any dividend payable in shares other than Preferred Shares) 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 Shares on such record date, less the fair
market value (as determined in good faith by the Board of Directors
of the Company, whose determination shall be described in a
statement filed with the Rights Agent and shall be conclusive for
all purposes) of the portion of the cash, assets or evidences of
indebtedness so to be distributed or of such subscription rights or
warrants applicable to a Preferred Share and the denominator of
which shall be such Current Market Price per share of Preferred
Shares. Such adjustments shall be made successively whenever such
a record date is fixed, and in the event that such distribution is
not so made, the Purchase Price shall be adjusted to be the
Purchase Price which would have been in effect if such record date
had not been fixed.
(d) (i) For the purpose of any computation hereunder, other
than computations made pursuant to Section 11(a)(iii) hereof, the
"Current Market Price" per Common Share of a Person on any date
shall be deemed to be the average of the daily Closing Prices per
share of such Common Shares for the 30 consecutive Trading Days
immediately prior to such date, and for purposes of
computations made pursuant to Section 11(a)(iii) hereof, the
"Current Market Price" per Common Share on any date shall be deemed
to be the average of the daily Closing Prices per share of such
Common Shares for the 10 consecutive Trading Days
immediately following such date; provided, however, that in the
event that the Current Market Price per Common Share is
determined during a period following the announcement of (A) a
dividend or distribution on such Common Shares other than a regular
quarterly cash dividend or the dividend of the Rights, or (B) any
subdivision, combination or reclassification of such Common
Shares, and the ex dividend date for such dividend or distribution,
or the record date for such subdivision,
combination or reclassification, shall not have occurred prior to
the commencement of the requisite 30 Trading Day or 10
Trading Day period, as set forth above, then, and in each such
case, the Current Market Price shall be properly adjusted to take
into account ex dividend trading. If the Common Shares are not
publicly held or not so listed or traded, "Current
Market Price" per share shall mean the fair value per share as
determined in good faith by the Board of Directors of the Company,
whose determination shall be described in a statement filed with
the Rights Agent.
(ii) For the purpose of any computation hereunder, the
"Current Market Price" per Preferred Share (or one hundredth of a
share) shall be determined in the same manner as set
forth above for the Common Shares in clause (i) of this
Section 11(d) (other than the last sentence thereof). If the
Current Market Price per Preferred Share (or one hundredth of a
share) cannot be determined in the manner provided above or if the
Preferred Shares are not publicly held or listed or
traded in a manner described in clause (i) of this Section 11(d),
the "Current Market Price" per Preferred Share shall be
conclusively deemed to be an amount equal to 100 (as such
number may be appropriately adjusted for such events as stock
splits, stock dividends and recapitalization with respect to the
Common Shares occurring after the date of this Agreement)
multiplied by the Current Market Price per Common Share. If
neither the Common Shares nor the Preferred Shares are
publicly held or so listed or traded, Current Market Price per
Preferred Share shall mean the fair 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. For all purposes of this Agreement, the Current
Market Price of one hundredth of a Preferred Share shall be equal
to the Current Market Price of one Preferred Share divided by 100.
(e) Anything herein to the contrary notwithstanding, no
adjustment in the Purchase Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in
the Purchase Price; provided, however, that any adjustments that by
reason of this Section 11(e) are not required to be made shall be
carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 11 shall be made
to the nearest cent or to the nearest ten thousandth of a Common
Share or other share or one millionth of a Preferred Share, as the
case may be. Notwithstanding the first sentence of this Section
11(e), any adjustment required by this Section 11 shall be made no
later than the earlier of (i) three years from the date of the
transaction which mandates such adjustment or (ii) the Expiration
Date.
(f) If as a result of an adjustment made pursuant to Section
11(a) or Section 13(a) hereof, the holder of any Right thereafter
exercised shall become entitled to receive any capital shares other
than Preferred Shares, thereafter the number of such other shares
so receivable upon exercise of any Right and the Purchase Price
thereof shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Preferred Shares contained in
Sections 11(a), (b), (c), (e), (f), (g), (h), (i), (j), (k) and (m)
hereof, and the provisions of Sections 7, 9, 10, 13 and 14 hereof
with respect to the Preferred Shares shall apply on like terms to
any such other shares.
(g) All Rights originally issued by the Company subsequent to
any adjustment made to the Purchase Price hereunder shall evidence
the right to purchase, at the adjusted Purchase Price, the number
of one hundredths of a Preferred Share purchasable from time to
time hereunder upon exercise of the Rights, all subject to further
adjustment as provided herein.
(h) Unless the Company shall have exercised its election as
provided in Section 11(i), upon each adjustment of the Purchase
Price as a result of the calculations made in Sections 11(b) and
(c), each Right outstanding immediately prior to the making of such
adjustment shall thereafter evidence the right to purchase, at the
adjusted Purchase Price, that number of one hundredths of a
Preferred Share (calculated to the nearest one millionth) obtained
by (i) multiplying (x) the number of one hundredths of a Preferred
Share covered by a Right immediately prior to this adjustment by
(y) the Purchase Price in effect immediately prior to such
adjustment of the Purchase Price, and (ii) dividing the product so
obtained by the Purchase Price in effect immediately after such
adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of Rights, in
lieu of any adjustment in the number of one hundredths of a
Preferred Share purchasable upon the exercise of a Right. Each of
the Rights outstanding after the adjustment in the number of Rights
shall be exercisable for the number of one hundredths of a
Preferred Share for which a Right was exercisable immediately prior
to such adjustment. Each Right held of record prior to such
adjustment of the number of Rights shall become that number of
Rights (calculated to the nearest ten thousandth) obtained by
dividing the Purchase Price in effect immediately prior to
adjustment of the Purchase Price by the Purchase Price in effect
immediately after adjustment of the Purchase Price. The Company
shall make a public announcement of its election to adjust the
number of Rights, indicating the record date for the adjustment,
and, if known at the time, the amount of the adjustment to be made.
This record date may be the date on which the Purchase Price is
adjusted or any day thereafter, but, if the Rights Certificates
have been issued, shall be at least 10 days later than the date of
the public announcement. If Rights Certificates have been issued,
upon each adjustment of the number of Rights pursuant to this
Section 11(i), the Company shall, as promptly as practicable, cause
to be distributed to holders of record of Rights Certificates on
such record date Rights Certificates evidencing, subject to Section
14 hereof, the additional Rights to which such holders shall be
entitled as a result of such adjustment, or, at the option of the
Company, shall cause to be distributed to such holders of record in
substitution and replacement for the Rights Certificates held by
such holders prior to the date of adjustment, and upon surrender
thereof, if required by the Company, new Rights Certificates
evidencing all the Rights to which such holders shall be entitled
after such adjustment. Rights Certificates so to be distributed
shall be issued, executed and countersigned in the manner provided
for herein (and may bear, at the option of the Company, the
adjusted Purchase Price) and shall be registered in the names of
the holders of record of Rights Certificates on the record date
specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase
Price or the number of one hundredths of a Preferred Share issuable
upon the exercise of the Rights, the Rights Certificates
theretofore and thereafter issued may continue to express the
Purchase Price per one hundredth of a share and the number of one
hundredths of a share that were expressed in the initial Rights
Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below the then stated value, if any, of
the number of one hundredths of a Preferred Share or of the number
of the Common Shares or other securities issuable upon exercise of
the Rights, the Company shall take any corporate action that may,
in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue fully paid and nonassessable
such number of one one hundredths of a Preferred Share or such
number of the Common Shares or other securities at such adjusted
Purchase Price.
(l) In any case in which this Section 11 shall require that
an adjustment in the Purchase Price be made effective as of a
record date for a specified event, the Company may elect to defer
until the occurrence of such event the issuance to the holder of
any Right exercised after such record date the number of one one
hundredths of a Preferred Share and other capital shares or
securities of the Company, if any, issuable upon such exercise over
and above the number of one one hundredths of a Preferred Share and
other capital shares 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
(fractional or otherwise) or securities upon the occurrence of the
event requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Purchase Price, in addition to those adjustments
expressly required by this Section 11, as and to the extent that in
their good faith judgment the Board of Directors of the Company
shall determine to be advisable in order that any (i) consolidation
or subdivision of the Preferred Shares, (ii) issuance wholly for
cash of any Preferred Shares at less than the current market price,
(iii) issuance wholly for cash of Preferred Shares or securities
that by their terms are convertible into or exchangeable for
Preferred Shares, (iv) shares dividends or (v) issuance of rights,
options or warrants referred to in this Section 11 hereafter made
by the Company to holders of its Preferred Shares shall not be
taxable to such shareholders.
(n) The Company covenants and agrees that it shall not, at
any time after the Distribution Date, (i) consolidate with any
other Person (other than a Subsidiary of the Company in a
transaction that complies with Section 11(o) hereof), (ii) merge
with or into any other Person (other than a Subsidiary of the
Company in a transaction that complies with Section 11(o) hereof)
or (iii) sell, lease or transfer (or permit any Subsidiary to sell
or transfer), in one transaction or a series of related
transactions, assets or earning power aggregating more than 50% of
the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to any other Person or Persons (other than the
Company and/or any of its Subsidiaries in one or more transactions
each of which complies with Section 11(o) hereof), if (x) at the
time of or immediately after such consolidation, merger, sale,
transfer or transaction there are any rights, warrants or other
instruments or securities of the Company or any other Person
outstanding or agreements in effect that would substantially
diminish or otherwise eliminate the benefits intended to be
afforded by the Rights, (y) prior to, simultaneously with or
immediately after such consolidation, merger, sale, transfer or
transaction, the shareholders or other equity owners 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
or Associates, or (z) the form or nature of organization of the
Principal Party would preclude or limit the exercise of Rights or
otherwise diminish substantially or eliminate the benefits intended
to be afforded by the Rights.
(o) The Company covenants and agrees that, after the
Distribution Date, it will not, except as permitted by Section 23
or Section 27 hereof, take (or permit any Subsidiary to take) any
action if the purpose of such action is to, or if at the time such
action is taken it is reasonably foreseeable that such action will,
diminish substantially or eliminate the benefits intended to be
afforded by the Rights.
(p) Anything in this Agreement to the contrary
notwithstanding, in the event that the Company shall at any time
after the Rights Dividend Declaration Date and prior to the
Distribution Date (i) declare a dividend on the outstanding the
Common Shares payable in the Common Shares, (ii) subdivide the
outstanding the Common Shares, (iii) combine the outstanding Common
Shares into a smaller number of shares or (iv) otherwise reclassify
the outstanding Common Shares, the number of Rights associated with
each Common Share then outstanding, or issued or delivered
thereafter but prior to the Distribution Date, shall be
proportionately adjusted so that the number of Rights thereafter
associated with each Common Share following any such event shall
equal the result obtained by multiplying the number of Rights
associated with each Common Share immediately prior to such event
by a fraction (the "Adjustment Fraction") the numerator of which
shall be the total number of the Common Shares outstanding
immediately prior to the occurrence of the event and the
denominator of which shall be the total number of the Common Shares
outstanding immediately following the occurrence of such event. In
lieu of such adjustment in the number of Rights associated with one
Common Share, the Company may elect to adjust the number of one one
hundredths of a Preferred Share purchasable upon the exercise of
one Right and the Purchase Price. If the Company makes such
election, the number of Rights associated with one Common Share
shall remain unchanged, and the number of one one hundredths of a
Preferred Share purchasable upon exercise of one Right and the
Purchase Price shall be proportionately adjusted so that (i) the
number of one one hundredths of a Preferred Share purchasable upon
exercise of a Right following such adjustment shall equal the
product of the number of one one hundredths of a Preferred Share
purchasable upon exercise of a Right immediately prior to such
adjustment multiplied by the Adjustment Fraction and (ii) the
Purchase Price following such adjustment shall equal the product of
the Purchase Price immediately prior to such adjustment multiplied
by the Adjustment Fraction.
Section 12.Certificate of Adjusted Purchase Price or Number of
Shares. Whenever an adjustment is made as provided in Section 11
or Section 13 hereof, the Company shall (a) promptly prepare a
certificate setting forth such adjustment and a brief statement of
the facts accounting for such adjustment, (b) promptly file with
the Rights Agent, and with each transfer agent for the Preferred
Shares and the Common Shares, a copy of such certificate and (c)
mail a brief summary thereof to each holder of a Rights Certificate
(or, if prior to the Distribution Date, to each holder of a
certificate representing the Common Shares) in accordance with
Section 26 hereof. The Rights Agent shall be fully protected in
relying on any such certificate and on any adjustment therein
contained.
Section 13.Consolidation, Merger or Sale of Transfer of Assets
or Earning Power.
(a) In the event that, on or after the Shares Acquisition
Date, directly or indirectly, (x) the Company shall consolidate
with, or merge with and into, any other Person (other than a
Subsidiary of the Company in a transaction that complies with
Section 11(o) hereof), and the Company shall not be the continuing
or surviving corporation of such consolidation or merger, (y) any
Person (other than a Subsidiary of the Company in a transaction
that complies with Section 11(o) hereof) shall consolidate with, or
merge with or into, the Company, and the Company shall be the
continuing or surviving corporation of such consolidation or merger
and, in connection with such consolidation or merger, all or part
of the outstanding Common Shares shall be changed into or exchanged
for shares or other securities of the Company or any other Person
or cash or any other property, or (z) the Company shall sell, lease
or otherwise transfer (or one or more of its Subsidiaries shall
sell, lease or otherwise transfer), in one transaction or a series
of related transactions, assets or earning power aggregating more
than 50% of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any Person or Persons (other
than the Company or any Subsidiary of the Company or any
combination thereof in one or more transactions each of which
complies with Section 11(o) hereof), then, and in each such case,
proper provision shall be made so that: (i) on and after the
Distribution Date, each holder of a Right, except as provided in
Section 7(e) hereof, shall thereafter have the right to receive,
upon the exercise thereof at the then current Purchase Price in
accordance with the terms of this Agreement, such number of validly
authorized and issued, fully paid, nonassessable and freely
tradeable the Common Shares of the Principal Party (as such term is
hereinafter defined), not subject to any liens, encumbrances,
rights of first refusal or other adverse claims, as shall be equal
to the result obtained by (1) multiplying the then current Purchase
Price by the number of one one hundredths of a Preferred Share for
which a Right was exercisable immediately prior to the first
occurrence of a Section 13 Event (or, if a Section 11(a)(ii) Event
has occurred prior to the first occurrence of a Section 13 Event,
multiplying the number of such one one hundredths of a Preferred
Share for which a Right was exercisable immediately prior to the
first occurrence of a Section 11(a)(ii) Event by the Purchase Price
in effect immediately prior to such first occurrence), and dividing
that product (which, following the first occurrence of a Section 13
Event, shall be the Purchase Price for each Right and for all
purposes of this Agreement) by (2) 50% of the Current Market Price
per Common Share of such Principal Party on the date of
consummation of such Section 13 Event; (ii) such Principal Party
shall thereafter be liable for, and shall assume, by virtue of such
Section 13 Event, all the obligations and duties of the Company
pursuant to this Agreement; (iii) the term "Company" shall
thereafter be deemed to refer to such Principal Party, it being
specifically intended that the provisions of Section 11 hereof
shall apply only to such Principal Party following the first
occurrence of a Section 13 Event; (iv) such Principal Party shall
take such steps (including, but not limited to, the reservation of
a sufficient number of shares of its Common Shares) in connection
with the consummation of any such transaction as may be necessary
to assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be, in relation to its
Common Shares thereafter deliverable upon the exercise of the
Rights; and (v) the provisions of Section 11(a)(ii) hereof shall be
of no effect following the first occurrence of any Section 13
Event.
(b) "Principal Party" shall mean:
(i) in the case of any transaction described in clause
(x) or (y) of the first sentence of Section 13(a), (A) the
Person that is the issuer of any securities into which the
Common Shares of the Company are converted in such merger or
consolidation, or, if there is more than one such issuer, the
issuer the Common Shares of which have the greatest aggregate
market value, or (B) if no securities are so issued, (x) the Person
that survives such consolidation or is the other party to the
merger and survives such merger, or, if there is more than one such
Person, the Person the Common Shares of which have the
greatest aggregate market value or (y) if the Person that is the
other party to the merger does not survive the merger, the Person
that does survive the merger (including the Company if it
survives); 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 each Person that is a party to such
transaction or transactions receives the same portion of the assets
or earning power so transferred, or if the Person
receiving the greatest portion of the assets or earning power
cannot be determined, the Person the Common Shares of which
have the greatest aggregate market value;
provided, however, that in any such case, if the Common Shares 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 if (1) such Person is a direct or indirect
Subsidiary of another Person the Common Shares of which are and
have been so registered, "Principal Party" shall refer to such
other Person; (2) such Person is a Subsidiary, directly or
indirectly, of more than one Person, the Common Shares of all of
which are and have been so registered, "Principal Party" shall
refer to whichever of such Persons is the issuer of the Common
Shares having the greatest aggregate market value; and (3) 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 venturers 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 Section 13 Event
unless each Principal Party (or Person that may become a Principal
Party as a result of such Section 13 Event) shall have a sufficient
number of its the Common Shares authorized that 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 each such Principal Party shall have
executed and delivered to the Rights Agent a supplemental agreement
providing for the terms set forth in paragraphs (a) and (b) of this
Section 13 and further providing that, as soon as practicable after
the date of such Section 13 Event, the Principal Party at its own
expense will
(i) prepare and file a registration statement under the
Securities Act with respect to the Rights and the securities
purchasable upon exercise of the Rights on an appropriate
form, and will use its best efforts to cause such registration
statement to (A) become effective as soon as practicable after such
filing and (B) remain effective (with a prospectus at all times
meeting the requirements of the Securities Act) until the
Expiration Date;
(ii) use its best efforts to qualify or register the
Rights and the securities purchasable upon exercise of the
Rights under the "blue sky" laws of such jurisdictions as may be
necessary or appropriate;
(iii) use its best efforts, if the Common Shares of the
Principal Party are or shall become listed on a national
securities exchange, to list (or continue the listing of) the
Rights and the securities purchasable upon exercise of the
Rights on such securities exchange and, if the Common Shares of the
Principal Party are not listed on a national securities
exchange, to cause the Rights and the securities purchasable upon
exercise of the Rights to be reported by the Nasdaq Stock Market or
such other transaction reporting system then in use; and
(iv) deliver to holders of the Rights historical
financial statements for the Principal Party and each of its
Affiliates that comply in all respects with the requirements for
registration on Form 10 under the Exchange Act.
The provisions of this Section 13 shall similarly apply to
successive mergers or consolidations or sales or other transfers.
in the event that a Section 13 Event shall occur at any time after
the occurrence of a Section 11(a)(ii) Event, the Rights that have
not theretofore been exercised shall thereafter become exercisable
in the manner described in Section 13(a).
Section 14.Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of
Rights, except prior to the Distribution Date as provided in
Section 11(p) hereof, or to distribute Rights Certificates or scrip
evidencing fractional Rights. In lieu of such fractional Rights,
there shall be paid to the registered holders of the Rights
Certificates with regard to which such fractional Rights would
otherwise be issuable, an amount in cash equal to the same fraction
of the Closing Price of one Right for the Trading Day immediately
prior to the date on which such fractional Rights would have been
otherwise issuable.
(b) The Company shall not be required to issue fractions of
Preferred Shares (other than, except as provided in Section 7(c)
hereof, fractions that are integral multiples of one one hundredth
of a Preferred Share) upon exercise of the Rights or to distribute
certificates or scrip evidencing fractional Preferred Shares (other
than, except as provided in Section 7(c) hereof, fractions that are
integral multiples of one one hundredth of a Preferred Share).
Fractions of Preferred Shares in integral multiples of one one
hundredth of a Preferred Share may, at the election of the Company
in its sole discretion, 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 Shares represented by such
depositary receipts. In lieu of fractional Preferred Shares that
are not integral multiples of one one hundredth of a Preferred
Share, the Company may pay to the registered holders of Rights
Certificates at the time such Rights are exercised as herein
provided an amount in cash equal to the same fraction of one one
hundredth of the Closing Price of a Preferred Share for the Trading
Day immediately prior to the date of such exercise.
(c) Following the occurrence of a Triggering Event, the
Company shall not be required to issue fractions of the Common
Shares upon exercise of the Rights or to distribute certificates or
scrip evidencing fractional Common Shares. In lieu of fractional
Common Shares, the Company may pay to the registered holders of
Rights Certificates at the time such Rights are exercised as herein
provided an amount in cash equal to the same fraction of the
Closing Price of one Common Share for the Trading Day immediately
prior to the date of such exercise.
(d) The holder of a Right by the acceptance of the Right
expressly waives his right to receive any fractional Rights or any
fractional shares upon exercise of a Right, except as permitted by
this Section 14.
Section 15.Rights of Action. All rights of action in respect
of this Agreement, other than rights of action vested in the Rights
Agent pursuant to Section 18 hereof, are vested in the respective
registered holders of the Rights Certificates (and, prior to the
Distribution Date, the registered holders of the Common Shares);
and any registered holder of any Rights Certificate (or, prior to
the Distribution Date, of the Common Shares), without the consent
of the Rights Agent or of the holder of any other Rights
Certificate (or, prior to the Distribution Date, of the Common
Shares), may, in his own behalf and for his own benefit, enforce,
and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise act in respect of, his
right to exercise the Rights evidenced by such Rights Certificate
in the manner provided in such Rights Certificate and in this
Agreement. Without limiting the foregoing or any remedies
available to the holders of Rights, it is specifically acknowledged
that the holders of Rights would not have an adequate remedy at law
for any breach of this Agreement and shall be entitled to specific
performance of the obligations hereunder and injunctive relief
against actual or threatened violations of the obligations
hereunder of any Person subject to this Agreement. After a
Triggering Event, holders of Rights shall be entitled to recover
the reasonable costs and expenses, including attorneys' fees,
incurred by them in any action to enforce the provisions of this
Agreement.
Section 16.Agreement of Rights Holders. Every holder of a
Right by accepting the same consents and agrees with the Company
and the Rights Agent and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will not be
evidenced by Rights Certificates and will be transferable only in
connection with the transfer of the Common Shares;
(b) after the Distribution Date, the Rights Certificates will
be transferable only on the registry books of the Rights Agent if
surrendered at the principal office or offices of the Rights Agent
designated for such purposes, duly endorsed or accompanied by a
proper instrument of transfer and with the form of assignment set
forth on the reverse side thereof and the certificate contained
therein duly completed and fully executed;
(c) subject to Section 6(a) and Section 7(f) hereof, the
Company and the Rights Agent may deem and treat the Person in whose
name a Rights Certificate (or, prior to the Distribution Date, the
associated the Common Shares certificate) is registered as the
absolute owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing on the
Rights Certificates or the associated the Common Shares certificate
made by anyone other than the Company or the Rights Agent) for all
purposes whatsoever, and neither the Company nor the Rights Agent,
subject to the last sentence of Section 7(e) hereof, shall be
affected by any notice to the contrary; and
(d) notwithstanding anything in this Agreement to the
contrary, neither the Company nor the Rights Agent shall have any
liability to any holder of a Right or other Person as a result of
its inability to perform any of its obligations under this
Agreement by reason of any preliminary or permanent injunction or
other order, decree or ruling issued by a court of competent
jurisdiction or by a governmental, regulatory or administrative
agency or commission, or any statute, rule, regulation or executive
order promulgated or enacted by any governmental authority,
prohibiting or otherwise restraining performance of such
obligation; provided, however, the Company must use its best
efforts to have any such order, decree or ruling lifted or
otherwise overturned as soon as possible.
Section 17.Rights Certificate Holder Not Deemed a Shareholder.
No holder, as such, of any Rights Certificate shall be entitled to
vote, receive dividends or be deemed for any purpose the holder of
the number of one one hundredths of a Preferred Share or any other
securities of the Company that may at any time be issuable upon the
exercise of the Rights represented thereby, nor shall anything
contained herein or in any Rights Certificate be construed to
confer upon the holder of any Rights Certificate, as such, any of
the rights of a shareholder of the Company or any right to vote for
the election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold consent
to any corporate action, or to receive notice of meetings or other
actions affecting shareholders (except as provided in Section 25
hereof), or to receive dividends or subscription rights, or
otherwise, until the Right or Rights evidenced by such Rights
Certificate shall have been exercised in accordance with the
provisions hereof.
Section 18.Concerning the Rights Agent.
(a) The Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from
time to time, on demand of the Rights Agent, its reasonable
expenses and counsel fees and 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 to be done by the Rights Agent in
connection with the acceptance and administration of this
Agreement, including the costs and expenses of defending against
any claim of liability in the premises.
(b) The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or
omitted by it in connection with its administration of this
Agreement in reliance upon any Rights Certificate or Common Shares
certificate 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, guaranteed, verified or
acknowledged, by the proper Person or Persons.
Section 19.Merger or Consolidation or Change of Name of Rights
Agents.
(a) Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or
consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any corporation succeeding to the
corporate trust or shares 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 Rights
Certificates shall have been countersigned but not delivered, any
such successor Rights Agent may adopt the countersignature of a
predecessor Rights Agent and deliver such Rights Certificates so
countersigned; and in case at that time any of the Rights
Certificates shall not have been countersigned, any successor
Rights Agent may countersign such Rights Certificates either in the
name of the predecessor or in the name of the successor Rights
Agent; and in all such cases such Rights Certificates shall have
the full force provided in the Rights Certificates and in this
Agreement.
(b) In case at any time the name of the Rights Agent shall be
changed and at such time any of the Rights Certificates shall have
been countersigned but not delivered, the Rights Agent may adopt
the countersignature under its prior name and deliver such Rights
Certificates so countersigned; and in case at that time any of the
Rights Certificates shall not have been countersigned, the Rights
Agent may countersign such Rights Certificates either in its prior
name or in its changed name; and in all such cases such Rights
Certificates shall have the full force provided in the Rights
Certificates and in this Agreement.
Section 20.Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations imposed by this Agreement
upon the following terms and conditions, by all of which the
Company and the holders of Rights Certificates, by their acceptance
thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may
be legal counsel for the Company), and the opinion of such counsel
shall be full and complete authorization and protection to the
Rights Agent as to any action taken or omitted by it in good faith
and in accordance with such opinion.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent shall deem it necessary or desirable
that any fact or matter be proved or established by the Company
prior to taking or suffering any action hereunder, such fact or
matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved
and established by a certificate signed by the President, any Vice
President, the Treasurer, any Assistant Treasurer, the Secretary or
any Assistant Secretary of the Company and delivered to the Rights
Agent; and such certificate shall be full authorization to the
Rights Agent for any action taken or suffered in good faith by it
under the provisions of this Agreement in reliance upon such
certificate.
(c) The Rights Agent shall be liable hereunder only for its
own negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of
any of the statements of fact or recitals contained in this
Agreement or in the Rights Certificates (except its
countersignature thereof) or be required to verify the same (except
as to its countersignature on such Rights Certificates), but all
such statements and recitals are and shall be deemed to have been
made by the Company only.
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and
delivery hereof (except the due execution hereof by the Rights
Agent) or in respect of the validity or execution of any Rights
Certificate (except its countersignature thereof); nor shall it be
responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Rights Certificate;
nor shall it be responsible for any adjustment required under the
provisions of Section 11 or Section 13 hereof or responsible for
the manner, method or amount of any such adjustment or the
ascertaining of the existence of facts that would require any such
adjustment (except with respect to the exercise of Rights evidenced
by Rights Certificates after 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 Shares or the Common Shares or other securities to
be issued pursuant to this Agreement or any Rights Certificate or
as to whether any Preferred Shares or the Common Shares or other
securities will, when so issued, be validly authorized and issued,
fully paid and nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by the
Rights Agent for the carrying out or performing by the Rights Agent
of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties
hereunder from the President, any Vice President, the Secretary,
any Assistant Secretary, the Treasurer or any Assistant Treasurer
of the Company, and to apply to such officers for advice or
instructions in connection with its duties, and it shall not be
liable for any action taken or suffered to be taken by it in good
faith in accordance with instructions of any such officer.
(h) The Rights Agent and any shareholder, director, officer
or employee of the Rights Agent may buy, sell or deal in any of the
Rights or other securities of the 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 the 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 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 Rights 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 clause 1 and/or 2 thereof, the Rights Agent
shall not take any further action with respect to such requested
exercise or transfer without first consulting with the Company.
Section 21.Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties
under this Agreement upon 30 days' notice in writing mailed to the
Company, and to each transfer agent of the Common Shares and the
Preferred Shares, by registered or certified mail, and to the
holders, if any, of the Rights Certificates by first class mail.
The Company may remove the Rights Agent or any successor Rights
Agent (with or without cause) upon 30 days' notice in writing,
mailed to the Rights Agent or successor Rights Agent, as the case
may be, and to each transfer agent of the Common Shares and the
Preferred Shares, by registered or certified mail, and to the
holders of the Rights Certificates by first class mail. If the
Rights Agent shall resign or be removed or shall otherwise become
incapable of acting, the Company shall appoint a successor to the
Rights Agent. Notwithstanding the foregoing provisions of this
Section 21, in no event shall the resignation or removal of a
Rights Agent be effective until a successor Rights Agent shall have
been appointed and have accepted such appointment. If the Company
shall fail to make such appointment within a period of 30 days
after giving notice of such removal or after it has been notified
in writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the holder of a Rights Certificate
(who shall, with such notice, submit his Rights Certificate for
inspection by the Company), then the Rights Agent or the registered
holder of any Rights Certificate may apply to any court of
competent jurisdiction for the appointment of a new Rights Agent.
Any successor Rights Agent, whether appointed by the Company or by
such a court, shall be (a) a legal business entity organized and
doing business under the laws of the United States or of any state
of the United States, in good standing, which is authorized to
conduct a stock transfer or corporate trust business 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 $25,000,000 or (b) an Affiliate of
a corporation described in clause (a) of this sentence. After
appointment, the successor Rights Agent shall be vested with the
same powers, rights, duties and responsibilities as if it had been
originally named as Rights Agent without further act or deed; but
the predecessor Rights Agent shall deliver and 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 Shares and the Preferred Shares,
and mail a notice thereof in writing to the registered holders of
the Rights Certificates. Failure to give any notice provided for
in this Section 21, however, or any defect therein, shall not
affect the legality or validity of the resignation or removal of
the Rights Agent or the appointment of the successor Rights Agent,
as the case may be.
Section 22.Issuance of New Rights Certificates.
Notwithstanding any of the provisions of this Agreement or of the
Rights to the contrary, the Company may, at its option, issue new
Rights Certificates evidencing Rights in such form as may be
approved by its Board of Directors to reflect any adjustment or
change in the Purchase Price and the number or kind or class of
shares or other securities or property purchasable under the Rights
Certificates made in accordance with the provisions of this
Agreement. In addition, in connection with the issuance or sale of
the Common Shares following the Distribution Date and prior to the
expiration or redemption of the Rights, the Company (a) shall, with
respect to the Common Shares so issued or sold pursuant to the
exercise of shares options or under any employee plan or
arrangement granted or awarded on or prior to the Distribution
Date, or upon the exercise, conversion or exchange of securities
issued by the Company on or prior to the Distribution Date, and (b)
may, in any other case, if deemed necessary or appropriate by the
Board of Directors of the Company, issue Rights Certificates
representing the appropriate number of Rights in connection with
such issuance or sale; provided, however, that (i) no such Rights
Certificate shall be issued if, and to the extent that, the Company
shall be advised by counsel that such issuance would create a
significant risk of material adverse tax consequences to the
Company or the Person to whom such Rights Certificate would be
issued, and (ii) no such Rights Certificate shall be issued if, and
to the extent that, appropriate adjustment shall otherwise have
been made in lieu of the issuance thereof.
Section 23.Redemption and Termination.
(a) The Board of Directors of the Company may, at its option,
at any time prior to the earlier of (i) the close of business on
the tenth day following the Shares Acquisition Date (or, if the
Shares Acquisition Date shall have occurred prior to the Record
Date, the close of business on the tenth day following the Record
Date) as such period may be extended (subject to the provisions of
Section 27 hereof) or shortened in the discretion of the Board of
Directors (the "Redemption Period") and (ii) the Final Expiration
Date, cause the Company to redeem all but not less than all the
then outstanding Rights at a redemption price of $.01 per Right, as
such amount may be appropriately adjusted to reflect any stock
split, stock dividend or similar transaction occurring after the
date hereof (such redemption price being hereinafter referred to as
the "Redemption Price"); provided, however, that, if the Board of
Directors authorizes redemption of the Rights or a change in the
Redemption Period in either of the circumstances set forth in
clauses (i) and (ii) below, then there must be Continuing Directors
then in office and such authorization shall require the concurrence
of a majority of such Continuing Directors: (i) such authorization
occurs on or after the time a Person becomes an Acquiring Person,
or (ii) such authorization occurs on or after the date of a change
(resulting from a proxy or consent solicitation or form a vote or
written consent (s)) in a majority of the directors in office at
the commencement of such solicitation, or prior to such vote or
consent(s) if any Person who is a participant in such solicitation,
vote or consent(s) has stated (or, if a majority of the directors
in office at the commencement of such solicitation or prior to such
vote or consent(s) has determine in good faith) the such Person (or
any of its Affiliates or Associates) intends to take, or may
consider taking, any action which would result in such Person
becoming an Acquiring Person or which would cause the occurrence of
a Triggering Event unless, concurrently with such a proxy or
consent solicitation or such vote or consent(s), effected in
compliance with applicable law and regulations, such Person (or one
or more of its Affiliates or Associates) is making a cash tender
offer pursuant to a Schedule 14D-1 (or any successor form) filed
with the Securities and Exchange Commission for all outstanding
Common Shares not beneficially owned by such Person (or by its
Affiliates or Associates) in compliance with Section 11(a)(ii).
If, following the occurrence of Shares Acquisition Date and
following the expiration of the Company's right of redemption
hereunder (i) a Person who is an Acquiring Person shall have
transferred or other wise disposed of a number of Common Shares in
one transaction or series of transactions, not directly or
indirectly involving the Company or any of its Subsidiaries, which
did not result in the occurrence of a Triggering Event such that
such Person is thereafter a Beneficial Owner of 20% or less of the
outstanding Common Shares, (ii) there are no other Persons,
immediately following the occurrence of the event described in
clause (i), who are Acquiring Persons, and (iii) the Board of
Directors (with the concurrence of a majority of the Continuing
Directors) shall so approve, then the Company's right of redemption
shall be reinstated and thereafter be subject to the provisions of
this Section 23. Notwithstanding anything contained in this
Agreement to the contrary, the Rights shall not be exercisable
after the first occurrence of a Section 11(a)(ii) Event or Section
13 Event until such time as the Company's right of redemption
hereunder has expired. The Company may, at its option, pay the
Redemption Price in cash, Common Shares (based on the Current
Market Price of the Common Shares at the time of redemption) or any
other form of consideration deemed appropriate by the Board of
Directors.
(b) Immediately upon the effectiveness of the action of the
Board of Directors of the Company ordering the redemption of the
Rights (which action may be conditioned on the occurrence of one or
more events or on the existence of one or more facts or may be
effective at some future time), evidence of which shall have been
filed with the Rights Agent and without any further action and
without any notice, the right to exercise the Rights will terminate
and the only right thereafter of the holders of Rights shall be to
receive the Redemption Price for each Right so held. Promptly after
the effectiveness of the action of the Board of Directors ordering
the redemption of the Rights, the Company shall give notice of such
redemption to the Rights Agent and the holders of the then
outstanding Rights by mailing such notice to all such holders at
each holder's last address as it appears upon the registry books of
the Rights Agent or, prior to the Distribution Date, on the
registry books of the Company for the Common Shares. Any notice
that is mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. Each such notice of
redemption shall state the method by which the payment of the
Redemption Price will be made.
Section 24.Exchange.
The Board of Directors of the Company may, at its option,
at any time and from time to time after the first occurrence of a
Section 11(a)(ii) Event, exchange all or part of the then
outstanding and exercisable Rights (which shall not include Rights
that have become void pursuant to the provisions of Section 7(e)
hereof) for Common Shares or Common Share Equivalents or any
combination thereof, at an exchange ratio of one Common Share, or
such number of Common Share Equivalents or units representing
fractions thereof as would be deemed to have the same value as one
Common Share, per Right, appropriately adjusted to reflect any
stock split, stock dividend or similar transaction occurring after
the Rights Dividend Declaration Date (such exchange ratio being
hereinafter referred to as the "Exchange Ratio").
(b) Immediately upon the action of the Board of Directors of
the Company ordering the exchange of any Rights pursuant to and in
accordance 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 shall be to receive that number of Common Shares and/or
Common Share Equivalents equal to the number of such Rights held by
such holder multiplied by the Exchange Ratio. The Company shall
promptly give public notice of any such exchange; provided,
however, that the failure to give, or any defect in, such notice
shall not affect the validity of such exchange. The Company
promptly shall mail a notice of any such exchange to all of the
holders of such Rights at their last addresses as they appear upon
the registry books of the Rights Agent. Any notice which is mailed
in the manner herein provided shall be deemed given, whether or not
the holder receives the notice. Each such notice of exchange will
state the method by which the exchange of Common Shares and/or
Common Share Equivalents for Rights will be effected and, in the
event of any partial exchange, the number of Rights that will be
exchanged. Any partial exchange shall be effected pro rata based
on the number of Rights (other than Rights which have become void
pursuant to the provisions of Section 7(e) hereof) held by each
holder of Rights.
(c) In the event that the number of Common Shares that 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 an exchange of
Rights as contemplated in accordance with this Section 24, the
Company may, at its option, take all such action as may be
necessary to authorize additional Common Shares for issuance upon
exchange of the Rights.
(d) The Company shall not be required to issue fractions of
Common Shares or to distribute certificates or scrip evidencing
fractional Common Shares. In lieu of such fractional Common
Shares, the Company shall pay to the registered holders of Rights
with regard to which such fractional Common Shares would otherwise
be issuable an amount in cash equal to the same fraction of the
value of a whole Common Share. For purposes of this Section 24, the
value of a whole Common Share shall be the Closing Price per Common
Share for the Trading Day immediately prior to the date of exchange
pursuant to this Section 24, and the value of any Common Share
Equivalent shall be deemed to have the same value as a Common Share
on such date.
Section 25.Notice of Certain Events.
(a) In case the Company shall propose, at any time after the
Distribution Date, (i) to pay any dividend payable in shares of any
class to the holders of Preferred Shares or to make any other
distribution to the holders of Preferred Shares (other than a
regular quarterly cash dividend out of earnings or retained
earnings of the Company), or (ii) to offer to the holders of
Preferred Shares rights or warrants to subscribe for or to purchase
any additional Preferred Shares or shares of shares of any class or
any other securities, rights or options, or (iii) to effect any
reclassification of its Preferred Shares (other than a
reclassification involving only the subdivision of outstanding
Preferred Shares), or (iv) to effect any consolidation or merger
into or with any other Person (other than a Subsidiary of the
Company in a transaction which complies with Section 11(o) hereof),
or to effect any sale or other transfer (or to permit one or more
of its Subsidiaries to effect any sale or other transfer), in one
transaction or a series of related transactions, of more than 50%
of the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to any other Person or Persons (other than the
Company and/or any of its Subsidiaries in one or more transactions
each of which complies with Section 11(o) hereof, or (v) to effect
the liquidation, dissolution or winding up of the Company, then, in
each such case, the Company shall give to each holder of record of
a Rights Certificate, to the extent feasible and in accordance with
Section 26 hereof, a notice of such proposed action, which shall
specify the record date for the purposes of such stock dividend,
distribution of rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution or winding up is to take place and the
date of participation therein by the holders of the Preferred
Shares, if any such date is to be fixed, and such notice shall be
so given in the case of any action covered by clause (i) or (ii)
above at least 20 days prior to the record date for determining
holders of the Preferred Shares for purposes of such action, and in
the case of any such other action, at least 20 days prior to the
date of the taking of such proposed action or the date of
participation therein by the holders of the Preferred Shares,
whichever shall be the earlier. 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.
(b) In case any Section 11(a)(ii) Event shall occur, then (i)
the Company shall as soon as practicable thereafter give to each
holder of a Rights Certificate, to the extent feasible and in
accordance with Section 26 hereof, a notice of the occurrence of
such event, which shall specify the event and the consequences of
the event to holders of Rights under Section 11(a)(ii) hereof, and
(ii) all references in the preceding paragraph to Preferred Shares
shall be deemed thereafter to refer to the Common Shares and/or, if
appropriate, other securities.
Section 26.Notices. Notices or demands authorized by this
Agreement to be given or made by the Rights Agent or by the holder
of any Rights Certificate to or on the Company shall be
sufficiently given or made if sent by first class mail, postage
prepaid, addressed (until another address is filed in writing with
the Rights Agent) as follows:
Excel Industries, Inc.
1120 North Main Street
P.O. Box 3118
Elkhart, Indiana 46515-3118
Attention: Secretary
Subject to the provisions of Section 21, any notice or demand
authorized by this Agreement to be given or made by the Company or
by the holder of any Rights Certificate to or on the Rights Agent
shall be sufficiently given or made if sent by first class mail,
postage prepaid, addressed (until another address is filed in
writing with the Company) as follows:
Chemical Mellon Shareholder Services L.L.C.
85 Challenger Road
Overpeck Center
Ridgefield Park, New Jersey 07660
Attention: Stock Transfer Administration
Notices or demands authorized by this Agreement to be given or
made by the Company or the Rights Agent to the holder of any Rights
Certificate (or, if prior to the Distribution Date, to the holder
of certificates representing Common Shares) shall be sufficiently
given or made if sent by first class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on
the registry books of the Company.
Section 27.Supplements and Amendments. Prior to the Shares
Acquisition Date and subject to the penultimate sentence of this
Section 27, the Company may, by resolution of its Board of
Directors (which resolution shall be effective only with the
concurrence of a majority of the Continuing Directors), in its sole
and absolute discretion and the Rights Agent shall, if the Company
so directs, supplement or amend any provision of this Agreement in
any respect without the approval of any holders of certificates
representing the Common Shares. From and after the Shares
Acquisition Date and subject to the penultimate sentence of this
Section 27, the Company may, by resolution of its Board of
Directors (which resolution shall be effective only with the
concurrence of a majority of the Continuing Directors), and the
Rights Agent shall, if the Company so directs, supplement or amend
this Agreement without the approval of any holders of Rights
Certificates in order (i) to cure any ambiguity, (ii) to correct or
supplement any provision contained herein that may be defective or
inconsistent with any other provisions herein, (iii) to shorten or
lengthen any time period hereunder or (iv) to change or supplement
the provisions hereunder in any manner that the Company may deem
necessary or desirable and that shall not materially adversely
affect the interests of the holders of Rights Certificates (other
than an Acquiring Person or an Affiliate or Associate of an
Acquiring Person or a transferee of any of such Persons); provided,
that this Agreement may not be supplemented or amended to lengthen,
pursuant to clause (iii) of this sentence, (A) a time period
relating to when the Rights may be redeemed at such time as the
Rights are not then redeemable or (B) any other time period unless
such lengthening is for the purpose of protecting, enhancing or
clarifying the rights of, and/or the benefits to, the holders of
Rights (other than any Acquiring Person and its Affiliates and
Associates or a transferee of any of such Persons). Upon the
delivery of a certificate from an appropriate officer of the
Company which states that the proposed supplement or amendment is
in compliance with the terms of this Section 27, the Rights Agent
shall execute such supplement or amendment; provided, however, that
the Rights Agent may, but shall not be obligated to, enter into any
such supplement or amendment that affects the Rights Agent's own
rights, duties or immunities under this Agreement. Notwithstanding
anything contained in this Agreement to the contrary, no supplement
or amendment shall be made that decreases the Redemption Price,
shortens the Final Expiration Date, increases the initial Purchase
Price or decreases the number of one one hundredths of a Preferred
Share for which a Right is initially exercisable. Prior to the
Distribution Date, the interests of the holders of Rights shall be
deemed coincident with the interests of the holders of the Common
Shares.
Section 28.Successors. All the covenants and provisions of
this Agreement by or for the benefit of the Company or the Rights
Agent shall bind and inure to the benefit of their respective
successors and assigns hereunder.
Section 29.Determinations and Actions by the Board of
Directors, etc. For all purposes of this Agreement, any
calculation of the number of Common Shares outstanding at any
particular time, including for purposes of determining the
particular percentage of such outstanding Common Shares 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
hereof. 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 of the Company (with, where specifically provided for
herein, the concurrence of the Continuing Directors) or to the
Company, or as may be necessary or advisable in the administration
of this Agreement, including, without limitation, the right and
power to (i) interpret the provisions of this Agreement and (ii)
make all determinations deemed necessary or advisable for the
administration of this Agreement (including, without limitation, a
determination to redeem or not redeem the Rights or to amend this
Agreement). All such actions, calculations, interpretations and
determinations (including, for purposes of clause (y) below, all
omissions with respect to the foregoing) that are done or made by
the Board of Directors of the Company (with, where specifically
provided for herein, the concurrence of the Continuing Directors)
in good faith, shall (x) be final, conclusive and binding on the
Company, the Rights Agent, the holders of the Rights, as such, and
all other parties, and (y) not subject the Board of Directors to
any liability to the holders of the Rights.
Section 30.Benefits of this Agreement. Nothing in this
Agreement shall be construed to give to any Person other than the
Company, the Rights Agent and the registered holders of the Rights
Certificates (and, prior to the Distribution Date, registered
holders of the Common Shares) any legal or equitable right, remedy
or claim under this Agreement; but this Agreement shall be for the
sole and exclusive benefit of the Company, the Rights Agent and the
registered holders of the Rights Certificates (and, prior to the
Distribution Date, registered holders of the Common Shares).
Section 31.Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated;
provided, however, that notwithstanding anything in this Agreement
to the contrary, if any such term, provision, covenant or
restriction is held by such court or authority to be invalid, void
or unenforceable and the Board of Directors of the Company
determines in its good faith judgment that severing the invalid
language from this Agreement would adversely affect the purpose or
effect of this Agreement, the right of redemption set forth in
Section 23 hereof shall be reinstated and shall not expire until
the close of business on the tenth day following the date of such
determination by the Board of Directors of the Company.
Section 32.Governing Law. This Agreement, each right and each
rights certificate issued hereunder shall be deemed to be a
contract made under the laws of the State of Indiana and for all
purposes shall be governed by and construed in accordance with the
laws of such state applicable to contracts made and to be performed
entirely within such state.
Section 33.Counterparts. This Agreement may be executed in
any number of counterparts and each of such counterparts shall for
all purposes be deemed to be an original, and all such counterparts
shall together constitute but one and the same instrument.
Section 34.Descriptive Headings. Descriptive headings of the
several Sections of this Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of
any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above
written.
EXCEL INDUSTRIES, INC.
____________________________________
Name
____________________________________
Title<PAGE>
CHEMICAL MELLON SHAREHOLDER
SERVICES L.L.C.
____________________________________
Name
____________________________________
Title
<PAGE>
EXHIBIT A
CLAUSE (h), SECTION 2, ARTICLE VI
OF
THE ARTICLES OF INCORPORATION
OF
EXCEL INDUSTRIES, INC.
Clause (h).Designation of Series A Junior Participating
Preferred Shares.
(i) Designation and Amount. There shall be a series of
shares of preferred stock that shall be designated as "Series A
Junior Participating Preferred Shares," and the number of shares
constituting such series shall be 200,000.
(ii) Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of
any shares of any series of shares of preferred stock ranking prior
and superior to the Series A Junior Participating Preferred Shares
with respect to dividends, the holders of shares of Series A Junior
Participating Preferred Shares, in preference to the holders of
shares of any class or series of shares of the Corporation ranking
junior to the Series A Junior Participating Preferred Shares, shall
be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the 15th day of January, April, July
and October in each year (each such date being referred to herein
as a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share
or fraction of a share of Series A Junior Participating Preferred
Shares, in an amount per share (rounded to the nearest cent) equal
to the greater of (a) $1.00 or (b) subject to the provision for
adjustment hereinafter set forth, the Adjustment Number (as defined
below) times the aggregate per share amount of all cash dividends,
and the Adjustment Number times the aggregate per share amount
(payable in kind) of all non-cash dividends or other distributions
other than a dividend payable in shares of common stock or a
subdivision of the outstanding the shares of common stock (by
reclassification or otherwise), declared on the shares of common
stock of the Corporation (the "Common Shares") since the
immediately preceding Quarterly Dividend Payment Date, or, with
respect to the first Quarterly Dividend Payment Date, since the
first issuance of any share or fraction of a share of Series A
Junior Participating Preferred Shares. The "Adjustment Number"
shall initially be 100. In the event the Corporation shall at any
time after December 21, 1995 (the "Rights Declaration Date") (i)
declare any dividend on Common Shares payable in Common Shares,
(ii) subdivide the outstanding Common Shares or (iii) combine the
outstanding Common Shares into a smaller number of shares, then in
each such case the Adjustment Number in effect immediately prior to
such event shall be adjusted by multiplying such Adjustment Number
by a fraction the numerator of which is the number of Common Shares
outstanding immediately after such event and the denominator of
which is the number of Common Shares that were outstanding
immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution
on the Series A Junior Participating Preferred Shares as provided
in paragraph (A) above immediately after it declares a dividend or
distribution on the Common Shares (other than a dividend payable in
Common Shares); provided that, in the event no dividend or
distribution shall have been declared on the Common Shares during
the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $1.00 per
share on the Series A Junior Participating Preferred Shares shall
nevertheless be payable on such subsequent Quarterly Dividend
Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding Series A Junior Participating Preferred Shares from the
Quarterly Dividend Payment Date next preceding the date of issue of
such Series A Junior Participating Preferred Shares, unless the
date of issue of such shares is prior to the record date for the
first Quarterly Dividend Payment Date, in which case dividends on
such shares shall begin to accrue from the date of issue of such
shares, or unless the date of issue is a Quarterly Dividend Payment
Date or is a date after the record date for the determination of
holders of Series A Junior Participating Preferred Shares entitled
to receive a quarterly dividend and before such Quarterly Dividend
Payment Date, in either of which events such dividends shall begin
to accrue and be cumulative from such Quarterly Dividend Payment
Date. Accrued but unpaid dividends shall not bear interest.
Dividends paid on the Series A Junior Participating Preferred
Shares in an amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be allocated pro
rata on a share by share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the
determination of holders of Series A Junior Participating Preferred
Shares entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be no more than 30 days
prior to the date fixed for the payment thereof.
(iii)Voting Rights. The holders of Series A Junior
Participating Preferred Shares shall have the following voting
rights:
(A) Each Series A Junior Participating Preferred Share shall
entitle the holder thereof to a number of votes equal to the
Adjustment Number on all matters submitted to a vote of the
shareholders of the Corporation.
(B) Except as otherwise provided herein or by law, the holders
of Series A Junior Participating Preferred Shares and the holders
of the Common Shares shall vote together as one class on all
matters submitted to a vote of shareholders of the Corporation.
(C) Except as set forth herein or as provided by law, holders
of Series A Junior Participating Preferred Shares shall have no
special voting rights and their consent shall not be required
(except to the extent they are entitled to vote with holders of the
Common Shares as set forth herein) for taking any corporate action.
(iv) Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Junior Participating
Preferred Shares as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on Series A Junior
Participating Preferred Shares outstanding shall have been paid in
full, the Corporation shall not
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for
consideration any shares ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to
the Series A Junior Participating Preferred Shares;
(ii) declare or pay dividends on or make any other
distributions on any shares ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series A Junior Participating Preferred Shares, except
dividends paid ratably on the Series A Junior Participating
Preferred Shares and all such parity shares on which dividends are
payable or in arrears in proportion to the total amounts to which
the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration any shares ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series A Junior Participating Preferred Shares, provided that
the Corporation may at any time redeem, purchase or otherwise
acquire any such parity shares in exchange for any shares of the
Corporation ranking junior (both as to dividends and upon
dissolution, liquidation or winding up) to the Series A Junior
Participating Preferred Shares; or
(iv) purchase or otherwise acquire for consideration any
shares of Series A Junior Participating Preferred Shares, or any
shares ranking on a parity with the Series A Junior
Participating Preferred Shares, except in accordance with a
purchase offer made in writing or by publication (as determined by
the Board of Directors) to all holders of such shares upon
such terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and
preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable treatment
among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any
shares of the Corporation unless the Corporation could, under
paragraph (A) of this Section 4, purchase or otherwise acquire such
shares at such time and in such manner.
(v) Reacquired Shares. Any Series A Junior Participating
Preferred Shares purchased or otherwise acquired by the Corporation
in any manner whatsoever shall be retired and canceled promptly
after the acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued shares of preferred
stock and may be reissued as part of a new series of shares of
preferred stock.
(vi) Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation (voluntary or otherwise), dissolution
or winding up of the Corporation, no distribution shall be made to
the holders of shares ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series A Junior
Participating Preferred Shares unless, prior thereto, the holders
of Series A Junior Participating Preferred Shares shall have
received $100 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to
the date of such payment (the "Series A Liquidation Preference").
Following the payment of the full amount of the Series A
Liquidation Preference, no additional distributions shall be made
to the holders of Series A Junior Participating Preferred Shares
unless, prior thereto, the holders of Common Shares shall have
received an amount per share (the "Common Adjustment") equal to the
quotient obtained by dividing (i) the Series A Liquidation
Preference by (ii) the Adjustment Number. Following the payment of
the full amount of the Series A Liquidation Preference and the
Common Adjustment in respect of all outstanding shares of Series A
Junior Participating Preferred Shares and the Common Shares,
respectively, holders of Series A Junior Participating Preferred
Shares and holders of the Common Shares shall receive their ratable
and proportionate share of the remaining assets to be distributed
in the ratio of the Adjustment Number to 1 with respect to such
Preferred Shares and the Common Shares, on a per share basis,
respectively.
(B) In the event, however, that there are not sufficient
assets available to permit payment in full of the Series A
Liquidation Preference and the liquidation preferences of all other
series of shares of preferred stock, if any, that rank on a parity
with the Series A Junior Participating Preferred Shares, then such
remaining assets shall be distributed ratably to the holders of
such parity shares in proportion to their respective liquidation
preferences. In the event, however, that there are not sufficient
assets available to permit payment in full of the Common
Adjustment, then such remaining assets shall be distributed ratably
to the holders of the Common Shares.
(vii)Consolidation, Merger, etc. In case the Corporation shall
enter into any consolidation, merger, combination or other
transaction in which the Common Shares are exchanged for or changed
into other shares or securities, cash and/or any other property,
then in any such case the Series A Junior Participating Preferred
Shares shall at the same time be similarly exchanged or changed in
an amount per share equal to the Adjustment Number times the
aggregate amount of shares, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for
which each Common Share is changed or exchanged.
(viii)No Redemption. The Series A Junior Participating
Preferred Shares shall not be redeemable. Notwithstanding the
foregoing sentence of this Section, the Corporation may acquire
Series A Junior Participating Preferred Shares in any other manner
permitted by law, and these Amended and Restated Articles of
Incorporation.
(ix) Ranking. The Series A Junior Participating Preferred
Shares shall rank junior to all other series of the Corporation's
preferred stock as to the payment of dividends and the distribution
of assets, unless the terms of any such series shall provide
otherwise.
(x) Amendment. At any time that any Series A Junior
Participating Preferred Shares are outstanding, these Articles of
Incorporation shall not be amended in any manner which would
materially alter or change the powers, preferences or special
rights of the Series A Junior Participating Preferred Shares so as
to affect them adversely without the affirmative vote of the
holders of a majority or more of the outstanding Series A Junior
Participating Preferred Shares, voting separately as a class.
(xi) Fractional Shares. Series A Junior Participating Preferred
Shares may be issued in fractions of a share that shall entitle the
holder, in proportion to such holder's fractional shares, to
exercise voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights of
holders of Series A Junior Participating Preferred Shares.
<PAGE>
EXHIBIT B
Form of Rights Certificate
Certificate No. P Rights
NOT EXERCISABLE AFTER January 22, 2006 OR EARLIER IF REDEEMED OR
EXCHANGED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT
THE OPTION OF THE COMPANY, AT $.01 PER RIGHT ON THE TERMS SET FORTH
IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS
BENEFICIALLY OWNED BY AN ACQUIRING PERSON OR AN AFFILIATE OR
ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE
RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS WILL
BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS RIGHTS
CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR
BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN
ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS
AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS
REPRESENTED HEREBY WILL BECOME NULL AND VOID IN THE CIRCUMSTANCES
AND WITH THE EFFECT SPECIFIED IN SECTION 7(e) OF SUCH AGREEMENT.]
RIGHTS CERTIFICATE
EXCEL INDUSTRIES, INC.
This certifies that _____________________, or registered
assigns, is the registered owner of the number of Rights set forth
above, each of which entitles the owner thereof, subject to the
terms, provisions and conditions of the Rights Agreement, dated as
of December 21, 1995 as it may from time to time be supplemented or
amended (the "Rights Agreement"), between Excel Industries, Inc.,
an Indiana corporation (the "Company"), and Chemical Mellon
Shareholder Services L.L.C., a New Jersey limited liability company
(the "Rights Agent"), to purchase from the Company at any time
prior to 5:00 p.m. (New York City time) on January 22, 2006 at the
office or offices of the Rights Agent designated for such purpose,
or its successor as Rights Agent, one hundredth of a fully paid,
nonassessable Series A Junior Participating Preferred Share (the
"Preferred Shares") of the Company, at a purchase price of $50.00
per one one hundredth of a share (the "Purchase Price"), upon
presentation and surrender of this Rights Certificate with the Form
of Election to Purchase and related Certificate set forth on the
reverse hereof duly executed. The Purchase Price may be paid in
cash or by certified check, cashiers or official bank check or bank
draft payable to the order of the Company or the Rights Agent. The
number of Rights evidenced by this Rights Certificate (and the
number of shares which may be purchased upon exercise thereof) set
forth above, and the Purchase Price per share set forth above, are
the number and Purchase Price as of ______________, 199___, based
on the Preferred Shares as constituted at such date. The Company
reserves the right to require prior to the occurrence of a
Triggering Event (as such term is defined in the Rights Agreement)
that a number of Rights be exercised so that only whole Preferred
Shares will be issued.
From and after the occurrence of a Section 11(a)(ii) Event (as
such term is defined in the Rights Agreement), if the Rights
evidenced by this Rights Certificate are beneficially owned by (i)
an Acquiring Person or an Affiliate or Associate of an Acquiring
Person (as such terms are defined in the Rights Agreement), (ii) a
direct or indirect transferee of any such Acquiring Person,
Associate or Affiliate, or (iii) under certain circumstances
specified in the Rights Agreement, a direct or indirect transferee
of a person who, concurrently with or after such transfer, became
an Acquiring Person or an Affiliate or Associate of an Acquiring
Person, such Rights shall become null and void in the circumstances
set forth in the Rights Agreement, and no holder hereof shall have
any rights whatsoever with respect to such Rights from and after
the occurrence of such Section 11(a)(ii) Event.
As provided in the Rights Agreement, the Purchase Price and
the number and kind of Preferred Shares or other securities that
may be purchased upon the exercise of the Rights evidenced by this
Rights Certificate are subject to modification and adjustment upon
the happening of certain events, including Triggering Events.
This Rights Certificate is subject to all of the terms, provision
and conditions of the Rights Agreement, which terms, provisions and
conditions are hereby incorporated herein by reference and made a
part hereof and to which Rights Agreement reference is hereby made
for a full description of the rights, limitations of rights,
obligations, duties and immunities hereunder of the Rights Agent,
the Company and the holders of the Rights Certificates, which
limitations of rights include the temporary suspension of the
exercisability of such Rights under the specific circumstances set
forth in the Rights Agreement. Copies of the Rights Agreement are
on file at the above mentioned office of the Rights Agent and are
also available upon written request to the Company.
This Rights Certificate, with or without other Rights
Certificates, upon surrender at the principal office or offices of
the Rights Agent designated for such purpose, may be exchanged for
another Rights Certificate or Rights Certificates of like tenor and
date evidencing Rights entitling the holder to purchase a like
aggregate number of one one hundredths of a Preferred Share as the
Rights evidenced by the Rights Certificate or Rights Certificates
surrendered shall have entitled such holder to purchase. If this
Rights Certificate shall be exercised in part, the holder shall be
entitled to receive upon surrender hereof another Rights
Certificate or Rights Certificates for the number of whole Rights
not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate (i) may be redeemed by the Company at
its option at a redemption price of $.01 per Right, payable, at the
election of the Company, in cash or the Common Shares or such other
consideration as the Board of Directors may determine, at any time
prior to the earlier of the close of business on (a) the tenth day
following the Shares Acquisition Date (as defined in the Rights
Agreement) (as such time period may be extended or shortened
pursuant to the Rights Agreement) and (b) the Expiration Date (as
such term is defined in the Rights Agreement) or (ii) may be
exchanged in whole or in part for common shares, no par value, of
the Company (the "Common Shares") and/or other equity securities of
the Company deemed to have the same value as the Common Shares.
Under certain circumstances set forth in the Rights Agreement, the
decision to redeem (or to change such time period) shall require
the concurrence of a majority of the Continuing Directors (as
defined in the Rights Agreement). After the expiration of the
redemption period, the Company's right of redemption may be
reinstated if an Acquiring Person reduces his beneficial ownership
to 20% or less of the outstanding Common Shares in a transaction or
series of transactions not involving the Company, and such
reinstatement is approved by the Company's Board of Directors (with
the concurrence of a majority of the Continuing Directors).
No fractional Preferred Shares will be issued upon the exercise of
any Right or Rights evidenced hereby (other than, except as set
forth above, fractions that are integral multiples of one one
hundredth of a Preferred Share, which may, at the election of the
Company, be evidenced by depositary receipts), but in lieu thereof,
cash payment will be made, as provided in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any purpose
the holder of Preferred Shares or of any other securities of the
Company that may at any time be issuable on the exercise hereof,
nor shall anything contained in the Rights Agreement or herein be
construed to confer upon the holder hereof, as such, any of the
rights of a shareholder of the Company or any right to vote for the
election of directors or upon any matter submitted to shareholders
at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions
affecting shareholders (except as provided in the Rights
Agreement), or to receive dividends or subscription rights, or
otherwise, until the Right or Rights evidenced by this Rights
Certificate shall have been exercised as provided in the Rights
Agreement.
This Rights Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Rights
Agent.
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal.
Dated as of the ______ day of ______________, ______.
EXCEL INDUSTRIES, INC.
____________________________________
President<PAGE>
____________________________________
Secretary
<PAGE>
Form of Reverse Side of Rights Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED ______________________________ hereby sells,
assigns and transfers unto
______________________________________(Please print name and
address of transferee) this Rights Certificate, together with all
right, title and interest therein, and does hereby irrevocably
constitute and appoint ______________________________ Attorney, to
transfer the within Rights Certificate on the books of the within
named Company, with full power of substitution.
Dated: ________________________, ______
Signature _______________________________________
Signature Guaranteed:
CERTIFICATE
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) this Rights 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 an 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 not acquire the Rights evidenced by this Rights
Certificate from any Person who is, was or subsequently became an
Acquiring Person or an Affiliate or Associate of an Acquiring
Person.
Dated:______________________, ______
Signature _______________________________________
Signature Guaranteed:
NOTICE
The signatures to the foregoing Assignment and Certificate
must correspond to the name as written upon the face of this Rights
Certificate in every particular, without alteration or enlargement
or any change whatsoever.
<PAGE>
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise
Rights represented by the Rights Certificate.)
To: EXCEL INDUSTRIES, INC.
The undersigned hereby irrevocably elects to exercise Rights
represented by this Rights Certificate to purchase the Preferred
Shares issuable upon the exercise of the Rights (or such other
securities of the Company or of any other person that may be
issuable upon the exercise of the Rights) and requests that
certificates for such shares (or other securities) be issued in the
name of and delivered to:
__________________________________________________________________
(Please print name and address)
__________________________________________________________________
(Please insert social security or other identifying number)
If such number of Rights shall not be all the Rights evidenced by
this Rights Certificate, a new Rights Certificate for the balance
of such Rights shall be registered in the name of and delivered to:
__________________________________________________________________
(Please print name and address)
__________________________________________________________________
(Please insert social security or other identifying number)
Dated: ____________________________, ______
Signature ________________________________________
Signature Guaranteed:
CERTIFICATE
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) the Rights evidenced by this Rights Certificate are not
being exercised by or on behalf of a Person who is or was an
Acquiring Person or an Affiliate or Associate of an 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 not acquire the Rights evidenced by this Rights
Certificate from any Person who is, was or became an Acquiring
Person or an Affiliate or Associate of an Acquiring Person.
Dated: _________________________, _______
Signature _______________________________________
Signature Guaranteed:
NOTICE
The signatures to the foregoing Election to Purchase and
Certificate must correspond to the name as written upon the face of
this Rights Certificate in every particular, without alteration or
enlargement or any change whatsoever.
<PAGE>
EXHIBIT C
SUMMARY OF RIGHTS TO PURCHASE PREFERRED SHARES
On December 21, 1995, the Board of Directors of Excel
Industries, Inc. (the "Company") declared a dividend of one Right
for each outstanding common share, no par value, of the Company
(the "Common Shares"), payable on January 22, 1996 to shareholders
of record at the close of business on that date. Each Right
entitles the registered holder to purchase from the Company a unit
(the "Unit") consisting of one one hundredth of a Series A Junior
Participating Preferred Share, stated value $l.00 per share (the
"Preferred Shares"), at a Purchase Price of $50.00 per Unit,
subject to adjustment. The description and terms of the Rights are
set forth in a Rights Agreement dated as of December 21, 1995 (the
"Rights Agreement") between the Company and Chemical Mellon
Shareholder Services L.L.C., as Rights Agent.
Initially, the Rights will be attached to all certificates
representing outstanding Common Shares, and no separate Rights
Certificates will be distributed. The Rights will separate from
the Common Shares and a "Distribution Date" will occur upon the
earlier of (i) ten days following a public announcement that a
person or group of affiliated or associated persons (an "Acquiring
Person") has acquired, or obtained the right to acquire, beneficial
ownership of 20% or more of the outstanding the Common Shares (the
date of the announcement being the "Shares Acquisition Date"), or
(ii) ten business days (or such later date as may be determined by
the Company's Board of Directors (with the concurrence of a
majority of the Continuing Directors (as defined below)) before the
Distribution Date occurs) following the commencement of a tender
offer or exchange offer that would result in a person's becoming an
Acquiring Person. Until the Distribution Date, (a) the Rights will
be evidenced by the Common Shares certificates (together with a
copy of this Summary of Rights or bearing the notation referred to
below) and will be transferred with and only with such Common Share
certificates, (b) new Common Share certificates issued after
January 22, 1996 will contain a notation incorporating the Rights
Agreement by reference and (c) the surrender for transfer of any
certificate for Common Shares outstanding (with or without a copy
of this Summary of Rights) will also constitute the transfer of the
Rights associated with the Common Shares represented by such
certificate. The Company, its subsidiaries and their employee
benefit plans will not at any time be deemed Acquiring Persons.
The Rights are not exercisable until the Distribution Date and
will expire at the close of business on January 22, 2006, unless
earlier redeemed or exchanged by the Company as described below.
Pursuant to the Rights Agreement, the Company reserves the right to
require prior to the occurrence of a Triggering Event (as defined
below) that, upon any exercise of Rights, a number of Rights be
exercised so that only whole Preferred Shares will be issued.
As soon as practicable after the Distribution Date, Rights
Certificates will be mailed to holders of record of the Common
Shares as of the close of business on the Distribution Date and,
from and after the Distribution Date, the separate Rights
Certificates alone will represent the Rights. All Common Shares
issued prior to the Distribution Date will be issued with Rights.
Common Shares issued after the Distribution Date in connection with
certain employee benefit plans or upon exercise or conversion of
certain securities will be issued with Rights. Except as otherwise
determined by the Board of Directors, no other Common Shares issued
after the Distribution Date will be issued with Rights.
In the event that a Person becomes an Acquiring Person, each
holder of a Right will thereafter have the right to receive, upon
exercise of such Right, a number of Common Shares (or, in certain
circumstances, cash, property or other securities of the Company)
having a Current Market Price (as defined in the Rights Agreement)
equal to two times the exercise price of the Right.
Notwithstanding any of the foregoing, following the occurrence of
any such event, all Rights that are, or (under certain
circumstances specified in the Rights Agreement) were, beneficially
owned by any Acquiring Person (or by certain related parties) will
be null and void in the circumstances set forth in the Rights
Agreement. However, Rights are not exercisable following the
occurrence of any such event until such time as the Rights are no
longer redeemable by the Company as set forth below.
For example, at an exercise price of $50.00 per Right, each
Right not owned by an Acquiring Person (or by certain related
parties) following an event set forth in the preceding paragraph
would entitle its holder to purchase $100.00 worth of the Common
Shares (or other consideration, as noted above), based upon their
Current Market Price, for $50.00. Assuming that the Common Shares
had a Current Market Price of $20.00 per share at such time, the
holder of each valid Right would be entitled to purchase 5 Common
Shares for $50.00.
In the event that, at any time on or after the Shares
Acquisition Date, (i) the Company is acquired in a merger or other
business combination transaction or (ii) 50% or more of the
Company's assets or earning power is sold or transferred, each
holder of a Right (except Rights that previously have been voided
as set forth above) shall thereafter have the right to receive,
upon exercise, a number of common shares of the acquiring company
having a Current Market Price equal to two times the exercise price
of the Right. The events described in this and the two preceding
paragraphs are collectively referred to as "Triggering Events."
The Purchase Price payable, and the number of Units of
Preferred Shares 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
Shares, (ii) if holders of the Preferred Shares are granted certain
rights or warrants to subscribe for Preferred Shares or convertible
securities at less than the current market price of the Preferred
Shares, or (iii) upon the distribution to holders of the Preferred
Shares of evidences of indebtedness or assets (excluding regular
quarterly cash dividends) or of subscription rights or warrants
(other than those referred to above).
The number of outstanding Rights and the number of Units
issuable upon exercise of each Right are also subject to adjustment
in the event of a stock split of the Common Shares or a stock
dividend on the Common Shares payable in Common Shares or
subdivisions, consolidations or combinations of the Common Shares
occurring, in any such case, prior to the Distribution Date.
The Preferred Shares purchasable upon exercise of the Rights
will not be redeemable. Each Preferred Share will be entitled to
a minimum preferential quarterly dividend payment of $1 per share
but will be entitled to an aggregate dividend of 100 times the
dividend declared per Common Share. In the event of liquidation,
the holders of the Preferred Shares will be entitled to a minimum
preferential liquidation payment of $100 per share but will be
entitled to an aggregate payment of 100 times the payment made per
Common Share. Each Preferred Share will have 100 votes, voting
together with the Common Shares. Finally, in the event of any
merger, consolidation or other transaction in which the Common
Shares are exchanged, each Preferred Share will be entitled to
receive 100 times the amount received per Common Share. These
rights are protected by customary antidilution provisions.
Because of the nature of the dividend, liquidation and voting
rights of the Preferred Shares, the value of the one one hundredth
interest in a Preferred Share purchasable upon exercise of each
Right should approximate the value of one Common Share.
With certain exceptions, no adjustment in the Purchase Price
will be required until cumulative adjustments amount to at least 1%
of the Purchase Price. No fractional Units will be issued and, in
lieu thereof, an adjustment in cash will be made based on the
market price of the Preferred Shares on the last trading date prior
to the date of exercise.
At any time until ten days following the Shares Acquisition
Date, the Company may redeem the Rights in whole, but not in part,
at a price of $.01 per Right, payable, at the option of the
Company, in cash, Common Shares or such other consideration as the
Board of Directors may determine. Under certain circumstances set
forth in the Rights Agreement, the decision to redeem the Rights
will require the concurrence of a majority of the Continuing
Directors (as defined below). After the redemption period has
expired, the Company's right of redemption may be reinstated (with
the concurrence of the Continuing Directors) if an Acquiring Person
reduces his beneficial ownership to 20% or less of the outstanding
Common Shares in a transaction or series of transactions not
involving the Company and there are no other Acquiring Persons.
Immediately upon the effectiveness of the action of the Board of
Directors ordering redemption of the Rights, the Rights will
terminate and the only right of the holders of Rights will be to
receive the $.01 redemption price.
The term "Continuing Director" means (i) any member of the
Board of Directors of the Company who was a member of the Board as
of December 21, 1995, and (ii) any person who is subsequently
elected to the Board, if such person is recommended or approved by
a majority of the Continuing Directors then on the Board of
Directors, and such person is not an Acquiring Person or an
affiliate, associate, representative or nominee of an Acquiring
Person.
At any time after a Person becomes an Acquiring Person, the
Company may exchange the Rights (other than Rights owned by an
Acquiring Person or an affiliate or an associate of an Acquiring
Person, which will have become void), in whole or in part, at an
exchange ratio of one Common Share, and/or other equity securities
deemed to have the same value as one Common Share, per Right,
subject to adjustment.
Until a Right is exercised, the holder thereof, as such, will
have no rights as a shareholder of the Company, including, without
limitation, the right to vote or to receive dividends. While the
distribution of the Rights will not be taxable to shareholders or
to the Company, shareholders may, depending upon the circumstances,
recognize taxable income in the event that the Rights become
exercisable for Common Shares (or other consideration) of the
Company or for common shares of the acquiring company as set forth
above or are exchanged as provided in the preceding paragraph.
Other than those provisions relating to the principal economic
terms of the Rights, any of the provisions of the Rights Agreement
may be amended by the Board of Directors (but only with the
concurrence of a majority of the Continuing Directors) of the
Company prior to the Shares Acquisition Date. Thereafter, the
provisions of the Rights Agreement may be amended by the Board of
Directors (but only with the concurrence of a majority of the
Continuing Directors) in order to cure any ambiguity, defect or
inconsistency, to make changes that do not materially adversely
effect the interests of holders of Rights (excluding the interests
of any Acquiring Person and certain related parties), or to shorten
or lengthen any time period under the Rights Agreement; provided,
however, that no amendment to lengthen the time period governing
redemption shall be made at such time as the Rights are not
redeemable.
A copy of the Rights Agreement has been filed with the
Securities and Exchange Commission as an exhibit to a Registration
Statement on Form 8-A. A copy of the Rights Agreement is available
free of charge from the Company. This summary description of the
Rights does not purport to be complete and is qualified in its
entirety by reference to the Rights Agreement, which is
incorporated herein by reference.
