SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
OLIN CORPORATION
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(Exact name of registrant as specified in its charter)
Virginia 13-1872319
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(State of incorporation or organization) (I.R.S. Employer
Identification No.)
501 Merritt 7, Norwalk, Connecticut 06856
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(Address of principal executive offices) (Zip Code)
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
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Rights to Purchase Series A New York Stock Exchange
Participating Cumulative Chicago Stock Exchange
Preferred Stock Pacific Stock Exchange
If this Form relates to the registration of a class of debt
securities and is effective upon filing pursuant to General
Instruction A.(c)(1), please check the following box. [ ]
If this Form relates to the registration of a class of debt
securities and is to become effective simultaneously with the
effectiveness of a concurrent registration statement under the
Securities Act of 1933 pursuant to General Instruction A.(c)(2),
please check the following box. [ ]
Securities to be registered pursuant to Section 12(g) of the Act:
None
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(Title of Class)
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Item 1. Description Of Securities To Be Registered
On January 25, 1996, the Board of Directors of Olin
Corporation (the "Company") declared a dividend of one Right for each
outstanding share of Common Stock, par value $1 per share, of the
Company (the "Common Shares"). The Rights will be issued to the
holders of record of Common Shares outstanding at the close of
business on February 27, 1996, and with respect to Common Shares
issued thereafter until the Distribution Date (as defined below) and
in certain circumstances with respect to Common Shares issued after
the Distribution Date. Each Right, when it becomes exercisable as
described below, will entitle the registered holder to purchase from
the Company one-thousandth (1/1000) of a share of Series A
Participating Cumulative Preferred Stock, par value $1 per share, of
the Company (the "Preferred Shares") at a price of $240 (the "Purchase
Price"). The description and terms of the Rights are set forth in a
Rights Agreement dated as of February 27, 1996 (the "Rights
Agreement"), between the Company and Chemical Mellon Shareholder
Services, L.L.C., as Rights Agent (the "Rights Agent"), a copy of
which is filed herewith as Exhibit A.
Until the earlier of (a) such time as the Company learns
that a person or group (including any affiliate or associate of such
person or group) has acquired, or has obtained the right to acquire,
beneficial ownership of 15% or more of the outstanding Common Shares
(such person or group being an "Acquiring Person"), unless provisions
preventing accidental triggering of the Rights apply, and (b) the
close of business on such date, if any, as may be designated by the
Board of Directors of the Company following the commencement of, or
first public disclosure of an intent to commence, a tender or exchange
offer by any person other than the Company, its subsidiaries or
benefit plans for 15% of the outstanding Common Shares, if upon
consummation of such tender or exchange offer such person could be the
beneficial owner of more than 15% of the outstanding Common Shares
(the earlier of such dates being called the "Distribution Date"), the
Rights will be evidenced by the certificates for Common Shares
registered in the names of the holders thereof (which certificates for
Common Shares shall also be deemed to be Right Certificates, as
defined below) and not by separate Right Certificates. Therefore, on
and after February 27, 1996, and until the
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Distribution Date, the Rights will be transferred with and only with
the Common Shares and each transfer of Common Shares also will
transfer the associated Rights.
As soon as practicable following the Distribution Date,
separate certificates evidencing the Rights ("Right Certificates")
will be mailed to holders of record of the Common Shares as of the
close of business on the Distribution Date (and to each initial record
holder of certain Common Shares originally issued after the
Distribution Date), and such separate Right Certificates alone will
thereafter evidence the Rights.
The Rights are not exercisable until the Distribution Date
and will expire on February 27, 2006 (the "Expiration Date"), unless
earlier redeemed by the Company as described below.
The number of Preferred Shares or other securities issuable
upon exercise of the Rights is subject to adjustment from time to time
in the event of any change in the Common Shares or the Preferred
Shares, whether by reason of stock dividends, stock splits,
recapitalizations, mergers, consolidations, combinations or exchanges
of securities, split-ups, split-offs, spin-offs, liquidations, other
similar changes in capitalization, any distribution or issuance of
cash, assets, evidences of indebtedness or subscription rights,
options or warrants to holders of Common Shares or Preferred Shares.
The Preferred Shares are authorized to be issued in
fractions which are an integral multiple of one-thousandth (1/1000) of
a Preferred Share. The Company may, but is not required to, issue
fractions of shares upon the exercise of Rights, and in lieu of
fractional shares, the Company may issue certificates or utilize a
depository arrangement as provided by the terms of the Preferred
Shares and, in the case of fractions other than one-thousandth
(1/1000) of a Preferred Share or integral multiples thereof, may make
a cash payment based on the market price of such shares.
In the event the Company is acquired in a merger or other
business combination by an Acquiring Person or an associate or
affiliate of an Acquiring Person that is a publicly traded corporation
or 50% or more of the Company's assets or assets representing 50% or
more of the Company's
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revenues or cash flow are sold, leased, exchanged or
otherwise transferred (in one or more transactions) to an Acquiring
Person or an associate or affiliate of an Acquiring Person that is a
publicly traded corporation, each Right will entitle its holder
(subject to the next paragraph) to purchase, for the Purchase Price,
that number of common shares of such corporation which at the time of
the transaction would have a market value of twice the Purchase Price.
In the event the Company is acquired in a merger or other business
combination by an Acquiring Person or an associate or affiliate of an
Acquiring Person that is not a publicly traded entity or 50% or more
of the Company's assets or assets representing 50% or more of the
Company's revenues or cash flow are sold, leased, exchanged or
otherwise transferred (in one or more transactions) to an Acquiring
Person or an associate or affiliate of an Acquiring Person that is not
a publicly traded entity, each Right will entitle its holder (subject
to the next paragraph) to purchase, for the Purchase Price, at such
holder's option, (a) that number of shares of the surviving
corporation in the transaction with such entity (which surviving
corporation could be the Company) which at the time of the transaction
would have a book value of twice the Purchase Price, (b) that number
of shares of such entity which at the time of the transaction would
have a book value of twice the Purchase Price or (c) if such entity
has an affiliate which has publicly traded common shares, that number
of common shares of such affiliate which at the time of the
transaction would have a market value of twice the Purchase Price.
Any Rights that are at any time beneficially owned by an
Acquiring Person (or any affiliate or associate of an Acquiring
Person) will be null and void and nontransferable and any holder of
any such Right (including any purported transferee or subsequent
holder) will be unable to exercise or transfer any such Right.
At any time prior to the earlier of (a) such time as a
person or group becomes an Acquiring Person and (b) the Expiration
Date (as defined in the Rights Agreement), the Board of Directors of
the Company may redeem the Rights in whole, but not in part, at a
price (in cash or Common Shares or other securities of the Company
deemed by the Board of Directors to be at least equivalent in value)
of $.01 per Right (which amount shall be subject to adjustment as
provided in the Rights Agreement) (the "Redemption Price").
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Immediately upon the action of the Board of Directors of the
Company ordering the redemption of the Rights, and without any further
action and without any notice, the right to exercise the Rights will
terminate and the only right of the holders of Rights will be to
receive the Redemption Price. Within 10 business days after the action
of the Board of Directors ordering the redemption of the Rights, the
Company shall give notice of such redemption to the holders of the
then outstanding Rights by mail. Each such notice of redemption will
state the method by which payment of the Redemption Price will be
made.
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.
At any time prior to the Distribution Date, the Company may,
without the approval of any holder of the Rights, supplement or amend
any provision of the Rights Agreement (including the date on which the
Distribution Date shall occur, the time during which the Rights may be
redeemed or the terms of the Preferred Shares), except that no
supplement or amendment shall be made which reduces the Redemption
Price (other than pursuant to certain adjustments therein) or provides
for an earlier Expiration Date. From and after the Distribution Date
and subject to applicable law, the Company may amend the Rights
Agreement without the approval of any holders of Right Certificates
(a) to cure any ambiguity or to correct or supplement any provision
contained in the Rights Agreement which may be defective or
inconsistent with any other provision of the Rights Agreement or (b)
to make any other provisions which the Company may deem necessary or
desirable and which shall not adversely affect the interests of the
holders of Right Certificates (other than an Acquiring Person or an
affiliate or associate of an Acquiring Person). Any supplement or
amendment adopted during any period after any person or group has
become an Acquiring Person but prior to the Distribution Date shall be
null and void unless such supplement or amendment could have been
adopted under the prior sentence from and after the Distribution Date.
The Rights Agreement between the Company and the Rights
Agent specifying the terms of the Rights, the Articles of Amendment of
the Articles of Incorporation of the Company specifying the terms of
the Preferred Shares
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(Exhibit A to the Rights Agreement) and the form of Right
Certificate (Exhibit B to the Rights Agreement) are filed herewith as
exhibits and are incorporated herein by reference. The foregoing
description of the Rights and the Preferred Shares is qualified by
reference to such exhibits.
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Item 2. Exhibits
1. Rights Agreement dated as of February 27,
1996, between Olin Corporation and Chemical Mellon
Shareholder Services, L.L.C., as Rights Agent.
2. Articles of Amendment of the Articles of
Incorporation of Olin Corporation creating the Series A Participating
Cumulative Preferred Stock of Olin Corporation (attached as Exhibit A
to the Rights Agreement filed as Exhibit 1 hereto).
3. Form of Right Certificate (attached as Exhibit
B to the Rights Agreement filed as Exhibit 1 hereto).
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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.
OLIN CORPORATION,
by: /s/ Johnnie M. Jackson, Jr.
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Name: Johnnie M. Jackson, Jr.
Title: Vice President, General
Counsel and Secretary
Date: February 21, 1996
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INDEX OF EXHIBITS
Sequentially
Numbered
Page at
Exhibit Which
Number Title Located
- ------- ----- ------------
1. Rights Agreement dated as of
February 27, 1996, between Olin
Corporation and Chemical Mellon
Shareholder Services, L.L.C., as
Rights Agent. 10
2. Articles of Amendment of the
Articles of Incorporation of
Olin Corporation creating the
Series A Participating
Cumulative Preferred Stock of
Olin Corporation (attached as
Exhibit A to the Rights
Agreement filed as Exhibit 1
hereto). 51
3. Form of Right Certificate
(attached as Exhibit B to the
Rights Agreement filed as
Exhibit 1 hereto). 60
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RIGHTS AGREEMENT dated as of
February 27, 1996, between OLIN CORPORATION,
a Virginia corporation (the "Company"), and
CHEMICAL MELLON SHAREHOLDER SERVICES, L.L.C.,
a New Jersey limited liability company, as
Rights Agent (the "Rights Agent").
The Board of Directors of the Company has authorized and
declared a dividend of one Right (as hereinafter defined) for each
share of Common Stock, par value $1 per share, of the Company (the
"Common Stock") outstanding at the Close of Business (as hereinafter
defined) on February 27, 1996 (the "Record Date"), and has authorized
the issuance of one Right (as such number may hereafter be adjusted
pursuant to the provisions of this Rights Agreement) with respect to
each share of Common Stock that shall become outstanding between the
Record Date and the earliest of the Distribution Date, the Redemption
Date or the Expiration Date (as such terms are hereinafter defined);
provided, however, that Rights may be issued with respect to shares of
Common Stock that shall become outstanding after the Distribution Date
and prior to the earlier of the Redemption Date or the Expiration Date
in accordance with the provisions of Section 23. Each Right shall
initially represent the right to purchase one-thousandth (1/1,000) of
a share of Series A Participating Cumulative Preferred Stock, par
value $1 per share, of the Company (the "Preferred Shares"), having
the powers, rights and preferences set forth in the Articles of
Amendment attached as Exhibit A.
Accordingly, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
SECTION 1. Certain Definitions. For purposes of this Rights
Agreement, the following terms have the meanings indicated:
"Acquiring Person" shall mean any Person who or which, alone
or together with all Affiliates and Associates of such Person, shall
be the Beneficial Owner of more than 15% of the Common Shares then
outstanding but shall not include (a) the Company, any Subsidiary of
the Company, any employee benefit plan of the Company or of any of its
Subsidiaries, or any Person holding Common Shares for or pursuant to
the terms of any such employee benefit plan or
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(b) any such Person who has become and is such a Beneficial
Owner solely because (i) of a change in the aggregate number of Common
Shares outstanding since the last date on which such Person acquired
Beneficial Ownership of any Common Shares or (ii) it acquired such
Beneficial Ownership in the good faith belief that such acquisition
would not (A) cause such Beneficial Ownership to exceed 15% of the
Common Shares then outstanding and such Person relied in good faith in
computing the percentage of its Beneficial Ownership on publicly filed
reports or documents of the Company which are inaccurate or
out-of-date or (B) otherwise cause a Distribution Date or the
adjustment provided for in Section 11(a) to occur. Notwithstanding
clause (b)(ii) of the prior sentence, if any Person that is not an
Acquiring Person due to such clause (b)(ii) does not reduce its
percentage of Beneficial Ownership of Common Shares to 15% or less by
the Close of Business on the fifth Business Day after notice from the
Company (the date of notice being the first day) that such Person's
Beneficial Ownership of Common Shares so exceeds 15%, such Person
shall, at the end of such five Business Day period, become an
Acquiring Person (and such clause (b)(ii) shall no longer apply to
such Person). For purposes of this definition, the determination
whether any Person acted in "good faith" shall be conclusively
determined by the Board of Directors of the Company, acting by a vote
of those directors of the Company whose approval would be required to
redeem the Rights under Section 24.
"Affiliate" and "Associate", when used with reference to any
Person, 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 Rights Agreement.
A Person shall be deemed the "Beneficial Owner" of,
and shall be deemed to "beneficially own", and shall be deemed to have
"Beneficial Ownership" of, any securities:
(a) which such Person or any of such Person's Affiliates or
Associates is deemed to "beneficially own" within the meaning of
Rule 13d-3 of the General Rules and Regulations under the
Exchange Act, as in effect on the date of this Rights Agreement;
(b) which such Person or any of such Person's Affiliates or
Associates has (i) the right to acquire (whether such right is
exercisable immediately or only after the passage of time)
pursuant to any agreement,
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arrangement or understanding (written or oral), or upon the
exercise of conversion rights, exchange rights, rights (other
than the Rights), warrants or options, or otherwise; provided,
however, that a Person shall not be deemed the Beneficial Owner
of, or to beneficially own, or to have Beneficial Ownership of,
securities tendered pursuant to a tender or exchange offer made
by or on behalf of such Person or any of such Person's Affiliates
or Associates until such tendered securities are accepted for
purchase or exchange thereunder, or (ii) the right to vote
pursuant to any agreement, arrangement or understanding (written
or oral); provided, however, that a Person shall not be deemed
the Beneficial Owner of, or to beneficially own, any security if
(A) the agreement, arrangement or understanding (written or oral)
to vote such security arises solely from a revocable proxy or
consent given to such Person in response to a public proxy or
consent solicitation made pursuant to, and in accordance with,
the applicable rules and regulations under the Exchange Act and
(B) the beneficial ownership of such security is not also then
reportable on Schedule 13D under the Exchange Act (or any
comparable or successor report); or
(c) which are beneficially owned, directly or indirectly, by
any other Person with which such Person or any of such Person's
Affiliates or Associates has any agreement, arrangement or
understanding (written or oral) for the purpose of acquiring,
holding, voting (except pursuant to a revocable proxy as
described in clause (b)(ii) of this definition) or disposing of
any securities of the Company.
Notwithstanding the foregoing, nothing contained in this
definition shall cause a Person ordinarily engaged in business as an
underwriter of securities to be the "Beneficial Owner" of, or to
"beneficially own", any securities acquired in a bona fide firm
commitment underwriting pursuant to an underwriting agreement with the
Company.
"Articles of Amendment" shall mean the Articles of Amendment
of the Articles of Incorporation of the Company designating and
establishing the Series A Participating Cumulative Preferred Stock and
setting forth the preferences, limitations and relative rights of such
series
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of Preferred Stock of the Company, a copy of which is
attached as Exhibit A.
"Book Value", when used with reference to Common Shares
issued by any Person, shall mean the amount of equity of such Person
applicable to each Common Share, determined (a) in accordance with
generally accepted accounting principles in effect on the date as of
which such Book Value is to be determined, (b) using all the
consolidated assets and all the consolidated liabilities of such
Person on the date as of which such Book Value is to be determined,
except that no value shall be included in such assets for goodwill
arising from consummation of a business combination, and (c) after
giving effect to (i) the exercise of all rights, options and warrants
to purchase such Common Shares (other than the Rights), and the
conversion of all securities convertible into such Common Shares, at
an exercise or conversion price, per Common Share, which is less than
such Book Value before giving effect to such exercise or conversion
(whether or not exercisability or convertibility is conditioned upon
occurrence of a future event), (ii) all dividends and other
distributions on the capital stock of such Person declared prior to
the date as of which such Book Value is to be determined and to be
paid or made after such date, and (iii) any other agreement,
arrangement or understanding (written or oral), or transaction or
other action prior to the date as of which such Book Value is to be
determined which would have the effect of thereafter reducing such
Book Value.
"Business Combination" shall have the meaning set forth in
Section 11(c)(i).
"Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions
in the Borough of Manhattan, the City 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, "Close of Business" shall mean 5:00 p.m.,
New York City time, on the next succeeding Business Day.
"Common Shares", when used with reference to the
Company prior to a Business Combination, shall mean the shares of
Common Stock of the Company or any other shares of
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capital stock of the Company into which the Common Stock
shall be reclassified or changed. "Common Shares", when used with
reference to any Person (other than the Company prior to a Business
Combination), shall mean shares of capital stock of such Person (if
such Person is a corporation) of any class or series, or units of
equity interests in such Person (if such Person is not a corporation)
of any class or series, the terms of which do not limit (as a maximum
amount and not merely in proportional terms) the amount of dividends
or income payable or distributable on such class or series or the
amount of assets distributable on such class or series upon any
voluntary or involuntary liquidation, dissolution or winding up of
such Person and do not provide that such class or series is subject to
redemption at the option of such Person, or any shares of capital
stock or units of equity interests into which the foregoing shall be
reclassified or changed; provided, however, that, if at any time there
shall be more than one such class or series of capital stock or equity
interests of such Person, "Common Shares" of such Person shall include
all such classes and series substantially in the proportion of the
total number of shares or other units of each such class or series
outstanding at such time.
"Common Stock" shall have the meaning set forth in the
introductory paragraph of this Rights Agreement.
"Company" shall have the meaning set forth in the heading of
this Rights Agreement; provided, however, that if there is a Business
Combination, "Company" shall have the meaning set forth in Section
11(c)(iii).
The term "control" with respect to any Person shall mean the
power to direct the management and policies of such Person, directly
or indirectly, by or through stock ownership, agency or otherwise, or
pursuant to or in connection with an agreement, arrangement or
understanding (written or oral) with one or more other Persons by or
through stock ownership, agency or otherwise; and the terms
"controlling" and "controlled" shall have meanings correlative to the
foregoing.
"Distribution Date" shall have the meaning set forth in
Section 3(b).
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"Exchange Act" shall mean the Securities Exchange Act of
1934, as in effect on the date in question, unless otherwise
specifically provided.
"Exchange Consideration" shall have the meaning set forth in
Section 11(b)(i).
"Expiration Date" shall have the meaning set forth in
Section 7(a).
"Major Part", when used with reference to the assets of the
Company and its Subsidiaries as of any date, shall mean assets (a)
having a fair market value aggregating 50% or more of the total fair
market value of all the assets of the Company and its Subsidiaries
(taken as a whole) as of the date in question, (b) accounting for 50%
or more of the total value (net of depreciation and amortization) of
all the assets of the Company and its Subsidiaries (taken as a whole)
as would be shown on a consolidated or combined balance sheet of the
Company and its Subsidiaries as of the date in question, prepared in
accordance with generally accepted accounting principles then in
effect, or (c) accounting for 50% or more of the total amount of
earnings before interest, taxes, depreciation and amortization or of
the revenues of the Company and its Subsidiaries (taken as a whole) as
would be shown on, or derived from, a consolidated or combined
statement of income or operations of the Company and its Subsidiaries
for the period of 12 months ending on the last day of the Company's
monthly accounting period next preceding the date in question,
prepared in accordance with generally accepted accounting principles
then in effect.
"Market Value", when used with reference to Common Shares on
any date, shall be deemed to be the average of the daily closing
prices, per share, of such Common Shares for the period which is the
shorter of (a) 30 consecutive Trading Days immediately prior to the
date in question or (b) the number of consecutive Trading Days
beginning on the Trading Day immediately after the date of the first
public announcement of the event requiring a determination of the
Market Value and ending on the Trading Day immediately prior to the
record date of such event; provided, however, that, in the event that
the Market Value of such Common Shares is to be determined in whole or
in part during a period following the announcement by the issuer of
such Common Shares of any action of the type described in Section
12(a) that would require an adjustment thereunder, then, and in
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each such case, the Market Value of such Common Shares shall
be appropriately adjusted to reflect the effect of such action on the
market price of such Common Shares. The closing price for each Trading
Day shall be the closing price quoted on the principal United States
securities exchange registered under the Exchange Act (or any
recognized foreign stock exchange) on which such securities are
listed, or, if such securities are not listed on any such exchange,
the average of the closing bid and asked quotations with respect to a
share of such securities on any National Association of Securities
Dealers, Inc. quotations system, or if no such quotations are
available, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in such
securities selected by the Board of Directors of the Company. If on
any such Trading Day no market maker is making a market in such
securities, the closing price of such securities on such Trading Day
shall be deemed to be the fair value of such securities 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, the holders of Rights
and all other Persons); provided, however, that for the purpose of
determining the closing price of the Preferred Shares for any Trading
Day on which there is no such market maker for the Preferred Shares
the closing price on such Trading Day shall be deemed to be the
Formula Number (as defined in the Articles of Incorporation) times the
closing price of the Common Shares of the Company on such Trading Day.
"Person" shall mean an individual, corporation, partnership,
joint venture, association, trust, unincorporated organization or
other entity.
"Preferred Shares" shall have the meaning set forth in the
introductory paragraph of this Rights Agreement. Any reference in this
Rights Agreement to Preferred Shares shall be deemed to include any
authorized fraction of a Preferred Share, unless the context otherwise
requires.
"Principal Party" shall mean the Surviving Person in a
Business Combination; provided, however, that, if such Surviving
Person is a direct or indirect Subsidiary of any other Person,
"Principal Party" shall mean the Person which is the ultimate parent
of such Surviving Person and which is not itself a Subsidiary of
another Person. In the event
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ultimate control of such Surviving Person is shared by two
or more Persons, "Principal Party" shall mean that Person that is
immediately controlled by such two or more Persons.
"Purchase Price" with respect to each Right shall mean $240,
as such amount may from time to time be adjusted as provided herein.
All references herein to the Purchase Price shall mean the Purchase
Price as in effect at the time in question.
"Record Date" shall have the meaning set forth in the
introductory paragraph of this Rights Agreement.
"Redemption Date" shall have the meaning set forth in
Section 24(a).
"Redemption Price" with respect to each Right shall mean
$.01, as such amount may from time to time be adjusted in accordance
with Section 12. All references herein to the Redemption Price shall
mean the Redemption Price as in effect at the time in question.
"Registered Common Shares" shall mean Common Shares which
are, as of the date of consummation of a Business Combination, and
have continuously been for the 12 months immediately preceding such
date, registered under Section 12 of the Exchange Act.
"Right Certificate" shall mean a certificate evidencing a
Right in substantially the form attached as Exhibit B.
"Rights" shall mean the rights to purchase Preferred Shares
(or other securities) as provided in this Rights Agreement.
"Securities Act" shall mean the Securities Act of 1933, as
in effect on the date in question, unless otherwise specifically
provided.
"Subsidiary" shall mean a Person, at least a majority of the
total outstanding voting power (being the power under ordinary
circumstances (and not merely upon the happening of a contingency) to
vote in the election of directors of such Person (if such Person is a
corporation) or to participate in the management and control of such
Person (if such Person is not a corporation)) of which is owned,
directly or indirectly, by another Person or by one
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or more other Subsidiaries of such other Person or by such
other Person and one or more other Subsidiaries of such other Person.
"Surviving Person" shall mean (a) the Person which is the
continuing or surviving Person in a consolidation or merger specified
in Section 11(c)(i)(A) or 11(c)(i)(B) or (b) the Person to which the
Major Part of the assets of the Company and its Subsidiaries is sold,
leased, exchanged or otherwise transferred or disposed of in a
transaction specified in Section 11(c)(i)(C); provided, however, that,
if the Major Part of the assets of the Company and its Subsidiaries is
sold, leased, exchanged or otherwise transferred or disposed of in one
or more related transactions specified in Section 11(c)(i)(C) to more
than one Person, the "Surviving Person" in such case shall mean the
Person that acquired assets of the Company and/or its Subsidiaries
with the greatest fair market value in such transaction or
transactions.
"Trading Day" shall mean a day on which the principal
national securities exchange (or principal recognized foreign stock
exchange, as the case may be) on which any securities or Rights, as
the case may be, are listed or admitted to trading is open for the
transaction of business or, if the securities or Rights in question
are not listed or admitted to trading on any national securities
exchange (or recognized foreign stock exchange, as the case may be), a
Business Day.
SECTION 2. Appointment of Rights Agent. The Company hereby
appoints the Rights Agent to act as agent for the Company in
accordance with the terms and conditions hereof, and the Rights Agent
hereby accepts such appointment. The Company may from time to time
appoint one or more co-Rights Agents as it may deem necessary or
desirable upon notice to the Rights Agent (the term "Rights Agent"
being used herein to refer, collectively, to the Rights Agent together
with any such co-Rights Agents). In the event the Company appoints one
or more co-Rights Agents, the respective duties of the Rights Agent
and any co-Rights Agents shall be as the Company shall determine.
SECTION 3. Issue of Rights and Right Certificates. (a) One
Right shall be associated with each Common Share outstanding on the
Record Date, each additional Common Share that shall become
outstanding between the Record Date and the earliest of the
Distribution Date, the
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Redemption Date or the Expiration Date and each additional
Common Share with which Rights are issued after the Distribution Date
but prior to the earlier of the Redemption Date or the Expiration Date
as provided in Section 23; provided, however, that, if the number of
outstanding Rights are combined into a smaller number of outstanding
Rights pursuant to Section 12(a), the appropriate fractional Right
determined pursuant to such Section shall thereafter be associated
with each such Common Share.
(b) Until the earlier of (i) such time as the Company learns
that a Person has become an Acquiring Person or (ii) the Close of
Business on such date, if any, as may be designated by the Board of
Directors of the Company following the commencement of, or first
public disclosure of an intent to commence, a tender or exchange offer
by any Person (other than the Company, any Subsidiary of the Company,
any employee benefit plan of the Company or of any of its
Subsidiaries, or any Person holding Common Shares for or pursuant to
the terms of any such employee benefit plan) for outstanding Common
Shares, if upon consummation of such tender or exchange offer such
Person could be the Beneficial Owner of more than 15% of the
outstanding Common Shares (the Close of Business on the earlier of
such dates being the "Distribution Date"), (x) the Rights will be
evidenced by the certificates for Common Shares registered in the
names of the holders thereof and not by separate Right Certificates
and (y) the Rights, including the right to receive Right Certificates,
will be transferable only in connection with the transfer of Common
Shares. As soon as practicable after the Distribution Date, the Rights
Agent will send, by first-class, postage-prepaid mail, to each record
holder of Common Shares as of the Distribution Date, at the address of
such holder shown on the records of the Company, a Right Certificate
evidencing one whole Right for each Common Share (or for the number of
Common Shares with which one whole Right is then associated if the
number of Rights per Common Share held by such record holder has been
adjusted in accordance with the proviso in Section 3(a)). If the
number of Rights associated with each Common Share has been adjusted
in accordance with the proviso in Section 3(a), at the time of
distribution of the Right Certificates the Company may make any
necessary and appropriate rounding adjustments so that Right
Certificates representing only whole numbers of Rights are distributed
and cash is paid in lieu of any fractional Right in accordance with
Section 15(a). As of and after the
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Distribution Date, the Rights will be evidenced solely by such Right
Certificates.
(c) With respect to any certificate for Common Shares, until
the earliest of the Distribution Date, the Redemption Date or the
Expiration Date, the Rights associated with the Common Shares
represented by any such certificate shall be evidenced by such
certificate alone, the registered holders of the Common Shares shall
also be the registered holders of the associated Rights and the
surrender for transfer of any such certificate shall also constitute
the transfer of the Rights associated with the Common Shares
represented thereby.
(d) Certificates issued for Common Shares after the Record
Date (including, without limitation, upon transfer or exchange of
outstanding Common Shares), but prior to the earliest of the
Distribution Date, the Redemption Date or the Expiration Date, shall
have printed on, written on or otherwise affixed to them the following
legend:
This certificate also evidences and entitles the holder
hereof to certain Rights as set forth in a Rights Agreement dated
as of February 27, 1996, as it may be amended from time to time
(the "Rights Agreement"), between Olin Corporation (the
"Company") and Chemical Mellon Shareholder Services, L.L.C., as
Rights Agent (the "Rights Agent"), the terms of which are hereby
incorporated herein by reference and a copy of which is on file
at the principal executive offices of the Company. Under certain
circumstances, as set forth in the Rights Agreement, such Rights
will be evidenced by separate certificates and will no longer be
evidenced by this certificate. The Rights Agent will mail to the
holder of this certificate a copy of the Rights Agreement without
charge after receipt of a written request therefor. Rights
beneficially owned by Acquiring Persons or their Affiliates or
Associates (as such terms are defined in the Rights Agreement)
and by any subsequent holder of such Rights are null and void and
nontransferable.
Notwithstanding this paragraph (d), the omission of a legend
shall not affect the enforceability of any part of this Rights
Agreement or the rights of any holder of Rights.
Page 20 of 66
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SECTION 4. Form of Right Certificates. The Right
Certificates (and the form of election to purchase and form of
assignment to be printed on the reverse side thereof) shall be in
substantially the form set forth as Exhibit B 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 Rights Agreement,
or as may be required to comply with any applicable law or with any
rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Rights may from time to
time be listed, or to conform to usage. Subject to the provisions of
Sections 7, 11 and 23, the Right Certificates, whenever issued, shall
be dated as of the Distribution Date, and on their face shall entitle
the holders thereof to purchase such number of Preferred Shares as
shall be set forth therein for the Purchase Price set forth therein,
subject to adjustment from time to time as herein provided.
SECTION 5. Execution, Countersignature and Registration. (a)
The Right Certificates shall be executed on behalf of the Company by
the Chairman of the Board, the Chief Executive Officer, the President,
the Chief Operating Officer, the Treasurer or a Vice President
(whether preceded by any additional title) of the Company, either
manually or by facsimile signature, and have affixed thereto the
Company's seal or a facsimile thereof which shall be attested by the
Secretary, an Assistant Secretary or a Vice President (whether
preceded by any additional title, provided that such Vice President
shall not have also executed the Right Certificates) of the Company,
either manually or by facsimile signature. The Right Certificates
shall be manually countersigned by the Rights Agent and shall not be
valid or obligatory for any purpose unless so countersigned. In case
any officer of the Company who shall have signed any of the Right
Certificates shall cease to be such an officer of the Company before
countersignature by the Rights Agent and issuance and delivery by the
Company, such Right Certificates may nevertheless 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 Right
Certificates had not ceased to be such an officer of the Company; and
any Right Certificate may be signed on behalf of the Company by any
person who, at the actual date of execution of such Right Certificate,
shall be a proper officer of the Company to sign such Right
Certificate, although at the date of execution of this
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Rights Agreement any such person was not such an officer of
the Company.
(b) Following the Distribution Date, the Rights Agent will
keep or cause to be kept, at its principal office in New York, New
York, books for registration and transfer of the Right Certificates
issued hereunder. Such books shall show the names and addresses of the
respective holders of the Right Certificates, the number of Rights
evidenced by each of the Right Certificates, the certificate number of
each of the Right Certificates and the date of each of the Right
Certificates.
SECTION 6. Transfer, Split-Up, Combination and Exchange of
Right Certificates; Mutilated, Destroyed, Lost or Stolen Right
Certificates; Uncertificated Rights. (a) Subject to the provisions of
Sections 7(e) and 15, at any time after the Distribution Date, and at
or prior to the Close of Business on the earlier of the Redemption
Date or the Expiration Date, any Right Certificate or Right
Certificates may be transferred, split-up, combined or exchanged for
another Right Certificate or Right Certificates representing, in the
aggregate, the same number of Rights as the Right Certificate or Right
Certificates surrendered then represented. Any registered holder
desiring to transfer, split-up, combine or exchange any Right
Certificate shall make such request in writing delivered to the Rights
Agent and shall surrender the Right Certificate or Right Certificates
to be transferred, split-up, combined or exchanged at the principal
office of the Rights Agent; provided, however, that neither the Rights
Agent nor the Company shall be obligated to take any action whatsoever
with respect to the transfer of any Right Certificate surrendered for
transfer until the registered holder shall have completed and signed
the certification contained in the form of assignment on the reverse
side of such Right Certificate and shall have provided such additional
evidence of the identity of the Beneficial Owner (or former Beneficial
Owner) or Affiliates or Associates thereof as the Company shall
reasonably request. Thereupon the Rights Agent shall, subject to
Sections 7(e) and 15, countersign and deliver to the Person entitled
thereto a Right Certificate or Right Certificates, as the case may be,
as so requested. The Company may require payment of a sum sufficient
to cover any tax or governmental charge that may be imposed in
connection with any transfer, split-up, combination or exchange of
Right Certificates.
Page 22 of 66
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(b) Upon receipt by the Company or the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a valid Right Certificate, and, in case
of loss, theft or destruction, of indemnity or security reasonably
satisfactory to them, and, at the Company's request, reimbursement to
the Company and the Rights Agent of all reasonable expenses incidental
thereto, and upon surrender to the Rights Agent and cancelation of the
Right Certificate if mutilated, the Company will make a new Right
Certificate of like tenor and deliver such new Right Certificate to
the Rights Agent for delivery to the registered owner in lieu of the
Right Certificate so lost, stolen, destroyed or mutilated.
(c) Notwithstanding any other provision hereof, the Company
and the Rights Agent may amend this Rights Agreement to provide for
uncertificated Rights in addition to or in place of Rights evidenced
by Right Certificates.
SECTION 7. Exercise of Rights; Expiration Date of Rights.
(a) Subject to Section 7(e) and except as otherwise provided herein
(including Section 11), each Right shall entitle the registered holder
thereof, upon exercise thereof as provided herein, to purchase for the
Purchase Price, at any time after the Distribution Date and at or
prior to the earlier of (i) the Close of Business on the 10th
anniversary of the date of this Rights Agreement (the Close of
Business on such date being the "Expiration Date") or (ii) the
Redemption Date, one-thousandth (1/1,000) of a Preferred Share,
subject to adjustment from time to time as provided in Sections 11 and
12.
(b) The registered holder of any Right Certificate may
exercise the Rights evidenced thereby (except as otherwise provided
herein) in whole or in part at any time after the Distribution Date,
upon surrender of the Right Certificate, with the form of election to
purchase on the reverse side thereof duly executed, to the Rights
Agent at the principal office of the Rights Agent in Richfield Park,
New Jersey, together with payment of the Purchase Price for each
one-thousandth (1/1,000) of a Preferred Share as to which the Rights
are exercised, at or prior to the earlier of (i) the Expiration Date
or (ii) the Redemption Date.
(c) Upon receipt of a Right Certificate representing
exercisable Rights, with the form of election to purchase duly
executed, accompanied by payment of the
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Purchase Price for the Preferred Shares to be purchased
together with an amount equal to any applicable transfer tax, in
lawful money of the United States of America, in cash or by certified
check or money order payable to the order of the Company, the Rights
Agent shall thereupon (i) either (A) promptly requisition from any
transfer agent of the Preferred Shares (or make available, if the
Rights Agent is the transfer agent) certificates for the number of
Preferred Shares to be purchased and the Company hereby irrevocably
authorizes its transfer agent to comply with all such requests or (B)
if the Company shall have elected to deposit the Preferred Shares with
a depositary agent under a depositary arrangement, promptly
requisition from the depositary agent depositary receipts representing
the number of thousandths (1/1,000s) of a Preferred Share to be
purchased (in which case certificates for the Preferred Shares to be
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 all such requests, (ii) when appropriate,
promptly requisition from the Company the amount of cash to be paid in
lieu of issuance of fractional shares in accordance with Section 15,
(iii) promptly after receipt of such certificates or depositary
receipts, cause the same to be delivered to or upon the order of the
registered holder of such Right Certificate, registered in such name
or names as may be designated by such holder and (iv) when
appropriate, after receipt promptly deliver such cash to or upon the
order of the registered holder of such Right Certificate.
(d) In case the registered holder of any Right Certificate
shall exercise fewer than all the Rights evidenced thereby, a new
Right Certificate evidencing Rights equivalent to the Rights remaining
unexercised shall be issued by the Rights Agent and delivered to the
registered holder of such Right Certificate or to his duly authorized
assigns, subject to the provisions of Section 15.
(e) Notwithstanding anything in this Rights Agreement to the
contrary, any Rights that are at any time beneficially owned by (i) an
Acquiring Person or an Associate or Affiliate of an Acquiring Person,
(ii) a 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 transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person becoming such and receives such
Rights pursuant to
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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 the Acquiring Person has
any continuing agreement, arrangement or understanding regarding the
transferred Rights or (B) a transfer which the Board of Directors of
the Company has determined is part of a plan, arrangement or
understanding which has as a primary purpose or effect the avoidance
of this Section 7(e), shall become null and void without any further
action and no holder of such Rights shall have any rights whatsoever
with respect to such Rights, whether under any provision of this
Rights Agreement or otherwise. The Company shall use all reasonable
efforts to ensure that the provisions of this Section 7(e) are
complied with, but shall have no liability to any holder of any Right
Certificate or any other Person as a result of its failure to make any
determinations with respect to an Acquiring Person or its Affiliate or
Associate, or any transferee thereof, hereunder.
(f) Notwithstanding anything in this Rights Agreement to the
contrary, neither the Rights Agent nor the Company shall be obligated
to undertake any action with respect to a registered holder of any
Right Certificates 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 Right
Certificate surrendered for such exercise and (ii) provided such
additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as the Company
shall reasonably request.
(g) The Company may temporarily suspend, for a period of
time not to exceed 90 calendar days after the Distribution Date, the
exercisability of the Rights in order to prepare and file a
registration statement under the Securities Act, on an appropriate
form, with respect to the Preferred Shares purchasable upon exercise
of the Rights and permit such registration statement to become
effective; provided, however, that no such suspension shall remain
effective after, and the Rights shall without any further action by
the Company or any other Person become exercisable immediately upon,
the effectiveness of such registration statement. Upon any such
suspension, the Company shall issue a public announcement stating that
the exercisability of the Rights has been temporarily suspended and
shall issue
Page 25 of 66
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a further public announcement at such time as the suspension
is no longer in effect. Notwithstanding any provision herein to the
contrary, the Rights shall not be exercisable in any jurisdiction if
the requisite qualification under the blue sky or securities laws of
such jurisdiction shall not have been obtained or the exercise of the
Rights shall not be permitted under applicable law.
SECTION 8. Cancelation and Destruction of Right
Certificates. All Right Certificates surrendered or presented for the
purpose of exercise, transfer, split-up, combination or exchange
shall, and any Right Certificate representing Rights that have become
null and void and nontransferable pursuant to Section 7(e) surrendered
or presented for any purpose shall, if surrendered or presented to the
Company or to any of its agents, be delivered to the Rights Agent for
cancelation or in canceled form, or, if surrendered or presented to
the Rights Agent, shall be canceled by it, and no Right Certificates
shall be issued in lieu thereof except as expressly permitted by this
Rights Agreement. The Company shall deliver to the Rights Agent for
cancelation and retirement, and the Rights Agent shall so cancel and
retire, any Right Certificate purchased or acquired by the Company.
The Rights Agent shall deliver all canceled Right Certificates to the
Company pursuant to a written agreement that the Company maintain such
certificates for such period of time as required by law, or shall, at
the written request of the Company, destroy such canceled Right
Certificates, and in such case shall deliver a certificate of
destruction thereof to the Company.
SECTION 9. Reservation and Availability of Preferred 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
or any authorized and issued Preferred Shares held in its treasury,
free from preemptive rights or any right of first refusal, a number of
Preferred Shares sufficient to permit the exercise in full of all
outstanding Rights.
(b) In the event that there shall not be sufficient
Preferred Shares issued but not outstanding or authorized but unissued
to permit the exercise or exchange of Rights in accordance with
Section 11, the Company covenants and agrees that it will take all
such action as may be necessary to authorize additional Preferred
Shares for issuance upon the exercise or exchange of Rights pursuant
to Section 11; provided, however, that if the
Page 26 of 66
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Company is unable to cause the authorization of additional
Preferred Shares, then the Company shall, or in lieu of seeking any
such authorization, the Company may, to the extent necessary and
permitted by applicable law and any agreements or instruments in
effect prior to the Distribution Date to which it is a party, (i) upon
surrender of a Right, pay cash equal to the Purchase Price in lieu of
issuing Preferred Shares and requiring payment therefor, (ii) upon due
exercise of a Right and payment of the Purchase Price for each
Preferred Share as to which such Right is exercised, issue equity
securities having a value equal to the value of the Preferred Shares
which otherwise would have been issuable pursuant to Section 11, which
value shall be determined by a nationally recognized investment
banking firm selected by the Board of Directors of the Company or
(iii) upon due exercise of a Right and payment of the Purchase Price
for each Preferred Share as to which such Right is exercised,
distribute a combination of Preferred Shares, cash and/or other equity
and/or debt securities having an aggregate value equal to the value of
the Preferred Shares which otherwise would have been issuable pursuant
to Section 11, which value shall be determined by a nationally
recognized investment banking firm selected by the Board of Directors
of the Company. To the extent that any legal or contractual
restrictions (pursuant to agreements or instruments in effect prior to
the Distribution Date to which it is party) prevent the Company from
paying the full amount payable in accordance with the foregoing
sentence, the Company shall pay to holders of the Rights as to which
such payments are being made all amounts which are not then restricted
on a pro rata basis as such payments become permissible under such
legal or contractual restrictions until such payments have been paid
in full.
(c) The Company covenants and agrees that it will take all
such action as may be necessary to ensure that all Preferred Shares
delivered upon exercise or exchange of Rights shall, at the time of
delivery of the certificates for such Preferred Shares (subject to
payment of the Purchase Price), be duly and validly authorized and
issued and fully paid and nonassessable shares.
(d) So long as the Preferred Shares issuable upon the
exercise or exchange of Rights are to be listed on any national
securities exchange, the Company covenants and agrees to use its best
efforts to cause, from and after such time as the Rights become
exercisable or exchangeable, all Preferred Shares reserved for such
issuance to be listed on
Page 27 of 66
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such securities exchange upon official notice of issuance
upon such exercise or exchange.
(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 which may be payable in respect of the issuance or
delivery of Right Certificates or of any Preferred Shares or Common
Shares or other securities upon the exercise or exchange of the
Rights. The Company shall not, however, be required to pay any
transfer tax which may be payable in respect of any transfer or
delivery of Right Certificates to a Person other than, or in respect
of the issuance or delivery of certificates for the Preferred Shares
or Common Shares or other securities, as the case may be, in a name
other than that of, the registered holder of the Right Certificate
evidencing Rights surrendered for exercise or exchange or to issue or
deliver any certificates for Preferred Shares or Common Shares or
other securities, as the case may be, upon the exercise or exchange of
any Rights until any such tax shall have been paid (any such tax being
payable by the holder of such Right Certificate at the time of
surrender) or until it has been established to the Company's
satisfaction that no such tax is due.
SECTION 10. Preferred Shares Record Date. Each Person in
whose name any certificate for Preferred Shares or Common Shares or
other securities is issued upon the exercise or exchange of Rights
shall for all purposes be deemed to have become the holder of record
of the Preferred Shares or Common Shares or other securities, as the
case may be, represented thereby on, and such certificate shall be
dated, the date upon which the Right Certificate evidencing such
Rights was duly surrendered and payment of any Purchase Price (and any
applicable transfer taxes) was made; provided, however, that, if the
date of such surrender and payment is a date upon which the transfer
books of the Company for the Preferred Shares or Common Shares or
other securities, as the case may be, are closed, such Person shall be
deemed to have become the record holder of such Preferred Shares or
Common Shares or other securities, as the case may be, on, and such
certificate shall be dated as of, the next succeeding Business Day on
which the transfer books of the Company for the Preferred Shares or
Common Shares or other securities, as the case may be, are open.
Page 28 of 66
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SECTION 11. Adjustments in Rights After There Is an
Acquiring Person; Exchange of Rights for Shares; Business
Combinations. (a) Upon a Person becoming an Acquiring Person, proper
provision shall be made so that each holder of a Right, except as
provided in Section 7(e), shall thereafter have a right to receive,
upon exercise thereof for the Purchase Price in accordance with the
terms of this Rights Agreement, such number of thousandths (1/1,000s)
of a Preferred Share as shall equal the result obtained by multiplying
the Purchase Price by a fraction, the numerator of which is the number
of thousandths (1/1,000s) of a Preferred Share for which a Right is
then exercisable and the denominator of which is 50% of the Market
Value of the Common Shares on the date on which a Person becomes an
Acquiring Person. As soon as practicable after a Person becomes an
Acquiring Person (provided the Company shall not have elected to make
the exchange permitted by Section 11(b)(i) for all outstanding
Rights), the Company covenants and agrees to use its best efforts to:
(i) prepare and file a registration statement under the
Securities Act, on an appropriate form, with respect to the
Preferred Shares purchasable upon exercise of the Rights;
(ii) cause such registration statement to become effective
as soon as practicable after such filing;
(iii) cause such registration statement to remain effective
(with a prospectus at all times meeting the requirements of the
Securities Act) until the Expiration Date; and
(iv) qualify or register the Preferred Shares purchasable
upon exercise of the Rights under the blue sky or securities laws
of such jurisdictions as may be necessary or appropriate.
(b)(i) The Board of Directors of the Company may, at its
option, at any time after a Person becomes an Acquiring Person,
mandatorily exchange all or part of the then outstanding and
exercisable Rights (which shall not include Rights that shall have
become null and void and nontransferable pursuant to the provisions of
Section 7(e)) for consideration per Right consisting of either
one-half of the securities that would be issuable at such time upon
the exercise of one Right in accordance with Section 11(a) or, if
applicable, Section 9(b)(ii) or (iii) or, if applicable
Page 29 of 66
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the cash consideration specified in Section 9(b)(i) (the
consideration issuable per Right pursuant to this Section 11(b)(i)
being the "Exchange Consideration"). The Board of Directors of the
Company may, at its option, issue, in substitution for Preferred
Shares, Common Shares in an amount per Preferred Share equal to the
Formula Number (as defined in the Articles of Amendment) if there are
sufficient Common Shares issued but not outstanding or authorized but
unissued. If the Board of Directors of the Company elects to exchange
all the Rights for Exchange Consideration pursuant to this Section
11(b)(i) prior to the physical distribution of the Rights
Certificates, the Corporation may distribute the Exchange
Consideration in lieu of distributing Right Certificates, in which
case for purposes of this Rights Agreement holders of Rights shall be
deemed to have simultaneously received and surrendered for exchange
Right Certificates on the date of such distribution.
(ii) Any action of the Board of Directors of the Company
ordering the exchange of any Rights pursuant to Section 11(b)(i) shall
be irrevocable and, immediately upon the taking of such action and
without any further action and without any notice, the right to
exercise any such Right pursuant to Section 11(a) shall terminate and
the only right thereafter of a holder of such Right shall be to
receive the Exchange Consideration in exchange for each such Right
held by such holder or, if the Exchange Consideration shall not have
been paid or issued, to exercise any such Right pursuant to Section
11(c)(i). 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
holders of such Rights at their last addresses as they appear upon the
registry books of the Rights Agent. Any notice which is mailed in the
manner herein provided shall be deemed given, whether or not the
holder receives the notice. Each such notice of exchange will state
the method by which the exchange of the Rights for the Exchange
Consideration will be effected and, in the event of any partial
exchange, the number of Rights which will be exchanged. Any partial
exchange shall be effected pro rata based on the number of Rights
(other than Rights which shall have become null and void and
nontransferable pursuant to the provisions of Section 7(e)) held by
each holder of Rights.
Page 30 of 66
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(c)(i) In the event that, following a Distribution Date,
directly or indirectly, any transactions specified in the following
clause (A), (B) or (C) of this Section 11(c) (each such transaction
being a "Business Combination") shall be consummated:
(A) the Company shall consolidate with, or merge with and
into, any Acquiring Person or any Affiliate or Associate of an
Acquiring Person;
(B) any Acquiring Person or any Affiliate or Associate of an
Acquiring Person shall merge with and into the Company and, in
connection with such merger, all or part of the Common Shares
shall be changed into or exchanged for capital stock or other
securities of the Company or of any Acquiring Person or Affiliate
or Associate of an Acquiring Person or cash or any other
property; or
(C) the Company shall sell, lease, exchange or otherwise
transfer or dispose of (or one or more of its Subsidiaries shall
sell, lease, exchange or otherwise transfer or dispose of), in
one or more transactions, the Major Part of the assets of the
Company and its Subsidiaries (taken as a whole) to any Acquiring
Person or any Affiliate or Associate of an Acquiring Person;
then, in each such case, proper provision shall be made so
that each holder of a Right, except as provided in Section 7(e), shall
thereafter have the right to receive, upon the exercise thereof for
the Purchase Price in accordance with the terms of this Rights
Agreement, the securities specified below (or, at such holder's
option, the securities specified in Section 11(a)):
(x) if the Principal Party in such Business Combination has
Registered Common Shares outstanding, each Right shall thereafter
represent the right to receive, upon the exercise thereof for the
Purchase Price in accordance with the terms of this Rights
Agreement, such number of Registered Common Shares of such
Principal Party, free and clear of all liens, encumbrances or
other adverse claims, as shall have an aggregate Market Value
equal to the result obtained by multiplying the Purchase Price by
two; or
(y) if the Principal Party involved in such Business Combination
does not have Registered Common Shares
Page 31 of 66
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outstanding, each Right shall thereafter represent the right to
receive, upon the exercise thereof for the Purchase Price in
accordance with the terms of this Rights Agreement, at the
election of the holder of such Right at the time of the exercise
thereof, any of:
(1) such number of Common Shares of the Surviving Person in
such Business Combination as shall have an aggregate Book Value
immediately after giving effect to such Business Combination
equal to the result obtained by multiplying the Purchase Price by
two;
(2) such number of Common Shares of the Principal Party in
such Business Combination (if the Principal Party is not also the
Surviving Person in such Business Combination) as shall have an
aggregate Book Value immediately after giving effect to such
Business Combination equal to the result obtained by multiplying
the Purchase Price by two; or
(3) if the Principal Party in such Business Combination is
an Affiliate of one or more Persons which has Registered Common
Shares outstanding, such number of Registered Common Shares of
whichever of such Affiliates of the Principal Party has
Registered Common Shares with the greatest aggregate Market Value
on the date of consummation of such Business Combination as shall
have an aggregate Market Value on the date of such Business
Combination equal to the result obtained by multiplying the
Purchase Price by two.
(ii) The Company shall not consummate any Business
Combination unless each issuer of Common Shares for which Rights may
be exercised, as set forth in this Section 11(c), shall have
sufficient authorized Common Shares that have not been issued or
reserved for issuance (and which shall, when issued upon exercise
thereof in accordance with this Rights Agreement, be validly issued,
fully paid and nonassessable and free of preemptive rights, rights of
first refusal or any other restrictions or limitations on the transfer
or ownership thereof) to permit the exercise in full of the Rights in
accordance with this Section 11(c) and unless prior thereto:
(A) a registration statement under the Securities Act on an
appropriate form, with respect to the Rights and the Common
Shares of such issuer purchasable upon
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exercise of the Rights, shall be effective under the
Securities Act; and
(B) the Company and each such issuer shall have:
(1) executed and delivered to the Rights Agent a
supplemental agreement providing for the assumption by such
issuer of the obligations set forth in this Section 11(c)
(including the obligation of such issuer to issue Common
Shares upon the exercise of Rights in accordance with the
terms set forth in Sections 11(c)(i) and 11(c)(iii)) and
further providing that such issuer, at its own expense, will
use its best efforts to:
(x) cause a registration statement under the
Securities Act on an appropriate form, with respect to
the Rights and the Common Shares of such issuer
purchasable upon exercise of the Rights, to remain
effective (with a prospectus at all times meeting the
requirements of the Securities Act) until the
Expiration Date;
(y) qualify or register the Rights and the Common
Shares of such issuer purchasable upon exercise of the
Rights under the blue sky or securities laws of such
jurisdictions as may be necessary or appropriate; and
(z) list the Rights and the Common Shares of such
issuer purchasable upon exercise of the Rights on each
national securities exchange on which the Common Shares
were listed prior to the consummation of the Business
Combination or, if the Common Shares were not listed on
a national securities exchange prior to the
consummation of the Business Combination, on a national
securities exchange;
(2) furnished to the Rights Agent a written opinion of
independent counsel stating that such supplemental agreement
is a valid, binding and enforceable agreement of such
issuer; and
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(3) filed with the Rights Agent a certificate of a
nationally recognized firm of independent accountants
setting forth the number of Common Shares of such issuer
which may be purchased upon the exercise of each Right after
the consummation of such Business Combination.
(iii) After consummation of any Business Combination and
subject to the provisions of Section 11(c)(ii), (A) each issuer of
Common Shares for which Rights may be exercised as set forth in this
Section 11(c) shall be liable for, and shall assume, by virtue of such
Business Combination, all the obligations and duties of the Company
pursuant to this Rights Agreement, (B) the term "Company" shall
thereafter be deemed to refer to such issuer, (C) each such issuer
shall take such steps in connection with such consummation as may be
necessary to assure that the provisions hereof (including the
provisions of Sections 11(a) and 11(c)) 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 (D)
the number of Common Shares of each such issuer thereafter receivable
upon exercise of any Right shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as practicable to
the provisions of Sections 11 and 12 and the provisions of Section 7,
9 and 10 with respect to the Preferred Shares shall apply, as nearly
as reasonably may be, on like terms to any such Common Shares.
SECTION 12. Certain Adjustments. (a) To preserve the actual
or potential economic value of the Rights, if at any time after the
date of this Rights Agreement there shall be any change in the Common
Shares or the Preferred Shares, whether by reason of stock dividends,
stock splits, recapitalizations, mergers, consolidations, combinations
or exchanges of securities, split-ups, split- offs, spin-offs,
liquidations, other similar changes in capitalization, any
distribution or issuance of cash, assets, evidences of indebtedness or
subscription rights, options or warrants to holders of Common Shares
or Preferred Shares, as the case may be (other than distribution of
the Rights or regular quarterly cash dividends) or otherwise, then, in
each such event the Board of Directors of the Company shall make such
appropriate adjustments in the number of Preferred Shares (or the
number and kind of other securities) issuable upon exercise of each
Right, the Purchase Price and Redemption Price in effect at such time
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and the number of Rights outstanding at such time (including
the number of Rights or fractional Rights associated with each Common
Share) such that following such adjustment such event shall not have
had the effect of reducing or limiting the benefits the holders of the
Rights would have had absent such event.
(b) If, as a result of an adjustment made pursuant to
Section 12(a), the holder of any Right thereafter exercised shall
become entitled to receive any securities other than Preferred Shares,
thereafter the number of such securities so receivable upon exercise
of any Right shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the
provisions of Sections 11 and 12 and the provisions of Sections 7, 9
and 10 with respect to the Preferred Shares shall apply, as nearly as
reasonably may be, on like terms to any such other securities.
(c) All Rights originally issued by the Company subsequent
to any adjustment made to the amount of Preferred Shares or other
securities relating to a Right shall evidence the right to purchase,
for the Purchase Price, the adjusted number and kind of securities
purchasable from time to time hereunder upon exercise of the Rights,
all subject to further adjustment as provided herein.
(d) Irrespective of any adjustment or change in the Purchase
Price or the number of Preferred Shares or number or kind of other
securities issuable upon the exercise of the Rights, the Right
Certificates theretofore and thereafter issued may continue to express
the terms which were expressed in the initial Right Certificates
issued hereunder.
(e) In any case in which action taken pursuant to Section
12(a) requires that an adjustment be made effective as of a record
date for a specified event, the Company may elect to defer until the
occurrence of such event the issuing to the holder of any Right
exercised after such record date the Preferred Shares and/or other
securities, if any, issuable upon such exercise over and above the
Preferred Shares and/or other securities, if any, issuable before
giving effect 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
securities upon the occurrence of the event requiring such adjustment.
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SECTION 13. Certificate of Adjustment. Whenever an
adjustment is made as provided in Section 11 or 12, 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 a copy of such certificate and (c) mail a brief
summary thereof to each holder of a Right Certificate (or, prior to
the Distribution Date, of the Common Shares) in accordance with
Section 25. The Rights Agent shall be fully protected in relying on
any such certificate and on any adjustment therein contained.
SECTION 14. Additional Covenants. (a) Notwithstanding any
other provision of this Rights Agreement, no adjustment to the number
of Preferred Shares (or fractions of a share) or other securities for
which a Right is exer- cisable or the number of Rights outstanding or
associated with each Common Share or any similar or other adjustment
shall be made or be effective if such adjustment would have the effect
of reducing or limiting the benefits the holders of the Rights would
have had absent such adjustment, including, without limitation, the
benefits under Sections 11 and 12, unless the terms of this Rights
Agreement are amended so as to preserve such benefits.
(b) The Company covenants and agrees that, after the
Distribution Date, except as permitted by Section 26, it will not take
(or permit any Subsidiary of the Company to take) any action if at the
time such action is taken it is intended or reasonably foreseeable
that such action will reduce or otherwise limit the benefits the
holders of the Rights would have had absent such action, including,
without limitation, the benefits under Sections 11 and 12. Any action
taken by the Company during any period after any Person becomes an
Acquiring Person but prior to the Distribution Date shall be null and
void unless such action could be taken under this Section 14(b) from
and after the Distribution Date. The Company shall not consummate any
Business Combination if any issuer of Common Shares for which Rights
may be exercised after such Business Combination in accordance with
Section 11(c) shall have taken any action that reduces or otherwise
limits the benefits the holders of the Rights would have had absent
such action, including, without limitation, the benefits under
Sections 11 and 12.
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SECTION 15. Fractional Rights and Fractional Shares. (a) The
Company may, but shall not be required to, issue fractions of Rights
or distribute Right Certificates which evidence fractional Rights. In
lieu of such fractional Rights, the Company may pay to the registered
holders of the Right Certificates with regard to which such fractional
Rights would otherwise be issuable an amount in cash equal to the same
fraction of the current market value of a whole Right. For purposes of
this Section 15(a), the current market value of a whole Right shall be
the closing price of the Rights (as determined pursuant to the second
and third sentences of the definition of Market Value contained in
Section 1) for the Trading Day immediately prior to the date on which
such fractional Rights would have been otherwise issuable.
(b) The Company may, but shall not be required to, issue
fractions of Preferred Shares upon exercise of the Rights or
distribute certificates which evidence fractional Preferred Shares. In
lieu of fractional Preferred Shares, the Company may elect to (i)
utilize a depository arrangement as provided by the terms of the
Preferred Shares or (ii) in the case of a fraction of a Preferred
Share (other than one-thousandth (1/1,000) of a Preferred Share or any
integral multiple thereof), pay to the registered holders of Right
Certificates at the time such Rights are exercised as herein provided
an amount in cash equal to the same fraction of the current market
value of one Preferred Share, if any are outstanding and publicly
traded (or the Formula Number times the current market value of one
Common Share if the Preferred Shares are not outstanding and publicly
traded). For purposes of this Section 15(b), the current market value
of a Preferred Share (or Common Share) shall be the closing price of a
Preferred Share (or Common Share) (as determined pursuant to the
second and third sentences of the definition of Market Value contained
in Section 1) for the Trading Day immediately prior to the date of
such exercise. If, as a result of an adjustment made pursuant to
Section 12(a), the holder of any Right thereafter exercised shall
become entitled to receive any securities other than Preferred Shares,
the provisions of this Section 15(b) shall apply, as nearly as
reasonably may be, on like terms to such other securities.
(c) The Company may, but shall not be required to, issue
fractions of Common Shares upon exchange of Rights pursuant to Section
11(b), or to distribute certificates which evidence fractional Common
Shares. In lieu of such
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fractional Common Shares, the Company may pay to the
registered holders of the Right Certificates with regard to which such
fractional Common Shares would otherwise be issuable an amount in cash
equal to the same fraction of the current Market Value of one Common
Share as of the date on which a Person became an Acquiring Person.
(d) The holder of Rights by the acceptance of the Rights
expressly waives his right to receive any fractional Rights or any
fractional shares upon exercise of a Right except as provided in this
Section 15.
SECTION 16. Rights of Action. (a) All rights of action in
respect of this Rights Agreement are vested in the respective
registered holders of the Right Certificates (and, prior to the
Distribution Date, the registered holders of the Common Shares); and
any registered holder of any Right Certificate (or, prior to the
Distribution Date, of the Common Shares), without the consent of the
Rights Agent or of the holder of any other Right Certificate (or,
prior to the Distribution Date, of the Common Shares) 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 Right Certificate in the manner provided in
such Right Certificate and in this Rights 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 Rights Agreement and
shall be entitled to specific performance of the obligations of any
Person under, and injunctive relief against actual or threatened
violations of the obligations of any Person subject to, this Rights
Agreement.
(b) Any holder of Rights who prevails in an action to
enforce the provisions of this Rights Agreement shall be entitled to
recover the reasonable costs and expenses, including attorneys' fees,
incurred in such action.
SECTION 17. Transfer and Ownership of Rights and Right
Certificates. (a) Prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of the Common Shares
and the Rights associated with the Common Shares shall be
automatically transferred upon the transfer of the Common Shares.
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(b) After the Distribution Date, the Right Certificates will
be transferable, subject to Section 7(e), only on the registry books
of the Rights Agent if surrendered at the principal office of the
Rights Agent, duly endorsed or accompanied by a proper instrument of
transfer.
(c) The Company and the Rights Agent may deem and treat the
Person in whose name a Right Certificate (or, prior to the
Distribution Date, the associated Common Shares certificate) is
registered as the absolute owner thereof and of the Rights evidenced
thereby (notwithstanding any notations of ownership or writing on the
Right Certificates or the associated certificate for Common Shares
made by anyone other than the Company or the Rights Agent) for all
purposes whatsoever, and neither the Company nor the Rights Agent
shall be affected by any notice to the contrary.
SECTION 18. Right Certificate Holder Not Deemed a
Shareholder. No holder, as such, of any Right Certificate shall be
entitled to vote or receive dividends or be deemed, for any purpose,
the holder of the Preferred Shares or of any other securities of the
Company which may at any time be issuable on the exercise of the
Rights represented thereby, nor shall anything contained herein or in
any Right Certificate be construed to confer upon the holder of any
Right Certificate, as such, any of the rights of a shareholder of the
Company, including, without limitation, 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, or to receive dividends or other distributions or
subscription rights, or otherwise, until the Right or Rights evidenced
by such Right Certificate shall have been exercised in accordance with
the provisions hereof.
SECTION 19. Concerning the Rights Agent. (a) The Company
agrees to pay to the Rights Agent reasonable compensation for all
services rendered by it hereunder from time to time and its reasonable
expenses and counsel fees and other disbursements incurred in the
administration and execution of this Rights Agreement and the exercise
and performance of its duties hereunder.
(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 Rights Agreement
in reliance upon any Right
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Certificate or certificate for the Common Shares or for
other securities of the Company, instrument of assignment or transfer,
power of attorney, endorsement, affidavit, letter, notice, direction,
consent, certificate, statement, or other paper or document believed
by it to be genuine and to be signed, executed and, where necessary,
verified or acknowledged, by the proper Person or Persons.
SECTION 20. Merger or Consolidation or Change of Rights
Agent. (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 stock transfer
or corporate trust business of the Rights Agent or any successor
Rights Agent, shall be the successor to the Rights Agent under this
Rights 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 22. In case, at the time
such successor Rights Agent shall succeed to the agency created by
this Rights Agreement, any of the Right Certificates shall have been
countersigned but not delivered, any such successor Rights Agent may
adopt the countersignature of the predecessor Rights Agent and deliver
such Right Certificates so countersigned; and, in case at that time
any of the Right Certificates shall not have been countersigned, any
successor Rights Agent may countersign such Right Certificates either
in the name of the predecessor Rights Agent or in the name of the
successor Rights Agent; and in all such cases such Right Certificates
shall have the full force provided in the Right Certificates and in
this Rights Agreement.
(b) In case at any time the name of the Rights Agent shall
be changed and at such time any of the Right Certificates shall have
been countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Right Certificates
so countersigned; and, in case at that time any of the Right
Certificates shall not have been countersigned, the Rights Agent may
countersign such Right Certificates either in its prior name or in its
changed name; and in all such cases such Right Certificates shall have
the full force provided in the Right Certificates and in this Rights
Agreement.
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SECTION 21. Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations imposed by this Rights Agreement
upon the following terms and conditions, by all of which the Company
and the holders of Right Certificates (or, prior to the Distribution
Date, of the Common Shares), by their acceptance thereof, shall be
bound:
(a) The Rights Agent may consult with legal counsel
satisfactory to it (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, suffered or
omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this
Rights Agreement the Rights Agent shall deem it necessary or desirable
that any fact or matter (including, without limitation, the identity
of any Acquiring Person) be proved or established by the Company prior
to taking, refraining from taking or suffering any action hereunder,
such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by any one of the
Chairman of the Board, the Chief Executive Officer, the President, the
Chief Operating Officer, the Chief Financial Officer, a Vice President
(whether preceded by any additional title), the Treasurer or the
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 Rights Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its
own negligence, bad faith or wilful 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 Rights
Agreement or in the Right Certificates (except as to its
countersignature thereof) or be required to verify the same, but all
such statements and recitals are and shall be deemed to have been made
by the Company only.
(e) The Rights Agent shall not be under any responsibility
in respect of the validity of this Rights Agreement or the execution
and delivery hereof (except the due execution hereof by the Rights
Agent) or in respect of
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the validity or execution of any Right Certificate (except
its countersignature thereof); nor shall it be responsible for any
breach by the Company of any covenant or condition contained in this
Rights Agreement or in any Right Certificate; nor shall it be
responsible for any adjustment required under the provisions of
Section 11 or 12 or responsible for the manner, method or amount of
any such adjustment or the ascertaining of the existence of facts that
would require any such adjustment (except with respect to the exercise
of Rights evidenced by Right Certificates after actual notice of any
such adjustment); nor shall it by any act hereunder be deemed to make
any representation or warranty as to the authorization or reservation
of any Preferred Shares or Common Shares to be issued pursuant to this
Rights Agreement or any Right Certificate or as to whether any
Preferred Shares or Common Shares 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 Rights Agreement.
(g) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties
hereunder from any one of the Chairman of the Board, the Chief
Executive Officer, the President, the Chief Operating Officer, a Vice
President (whether preceded by any additional title), the Secretary or
the Treasurer of the Company, and to apply to such officers for advice
and 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,
employee or affiliate 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
Rights Agreement. Nothing herein shall preclude
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the Rights Agent from acting in any other capacity for the
Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder
either itself or by or through its attorneys or agents and the Rights
Agent shall not be answerable or accountable for any act, default,
neglect or misconduct of any such attorneys or agents or for any loss
to the Company resulting from any such act, default, neglect or
misconduct provided reasonable care was exercised in the selection and
continued employment thereof.
(j) The Company agrees to indemnify and to hold the Rights
Agent harmless against any loss, liability, damage or expense
(including reasonable fees and expenses of legal counsel) which the
Rights Agent may incur resulting from its actions as Rights Agent
pursuant to this Rights Agreement; provided, however, that the Rights
Agent shall not be indemnified or held harmless with respect to any
such loss, liability, damage or expense incurred by the Rights Agent
as a result of, or arising out of, its own negligence, bad faith or
wilful misconduct. In no case shall the Company be liable with respect
to any action, proceeding, suit or claim against the Rights Agent
unless the Rights Agent shall have notified the Company, by letter or
by facsimile confirmed by letter, of the assertion of any action,
proceeding, suit or claim against the Rights Agent, promptly after the
Rights Agent shall have notice of any such assertion of an action,
proceeding, suit or claim or have been served with the summons or
other first legal process giving information as to the nature and
basis of the action, proceeding, suit or claim. The Company shall at
its own expense assume the defense of any such action, proceeding,
suit or claim. In the event that the Company assumes such defense, the
Company shall not thereafter be liable for the fees and expenses of
any additional counsel retained by the Rights Agent, so long as the
Company shall retain counsel satisfactory to the Rights Agent, in the
exercise of its reasonable judgment, to defend such action,
proceeding, suit or claim. In the event the Company fails so to
defend, the Rights Agent agrees not to settle any litigation in
connection with any action, proceeding, suit or claim with respect to
which it may seek indemnification from the Company without the prior
written consent of the Company.
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(k) The Rights Agent shall be under no obligation to
institute any action, suit or legal proceeding or to take any other
action likely to involve expense unless the Company or one or more
registered holders of Right Certificates shall furnish the Rights
Agent with security and indemnity to its satisfaction for any costs
and expenses which may be incurred.
(l) The Rights Agent shall not be liable for failure to
perform any duties except as specifically set forth herein and no
implied covenants or obligations shall be read into this Agreement
against the Rights Agent, whose duties and obligations are ministerial
and shall be determined solely by the express provisions hereof.
SECTION 22. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties
under this Rights 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
of the Right Certificates (or, prior to the Distribution Date, of the
Common Shares) by first-class mail. The Company may remove the Rights
Agent or any successor Rights Agent upon 30 days' notice in writing,
mailed to the Rights Agent or successor Rights Agent, as the case may
be, and to each transfer agent of the Common Shares and the Preferred
Shares by registered or certified mail, and to the holders of the
Right Certificates (or, prior to the Distribution Date, of the Common
Shares) by first-class mail. If the Rights Agent shall resign or be
removed or shall otherwise become incapable of acting, the Company
shall appoint a successor to the Rights Agent. If the Company shall
fail to make such appointment within a period of 30 days after giving
notice of such removal or after it has been notified in writing of
such resignation or incapacity by the resigning or incapacitated
Rights Agent or by the holder of a Right Certificate (or, prior to the
Distribution Date, of the Common Shares) who shall, with such notice,
submit his Right Certificate (or, prior to the Distribution Date, the
certificate representing his Common Shares) for inspection by the
Company, then the registered holder of any Right Certificate (or,
prior to the Distribution Date, of the Common Shares) 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 corporation organized and doing business
under the laws of the United States or of any state of the United
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States, in good standing, having a principal office in the
United States, which is authorized under such laws to exercise stock,
transfer or corporate trust powers and is subject to supervision or
examination by Federal or state authority and which has at the time of
its appointment as Rights Agent a combined capital and surplus of at
least $25,000,000; provided that the principal transfer agent for the
Common Shares shall in any event be qualified to be the Rights Agent.
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 Right Certificates (or, prior
to the Distribution Date, of the Common Shares). Failure to give any
notice provided for in this Section 22, 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 23. Issuance of Additional Rights and Right
Certificates. Notwithstanding any of the provisions of this Rights
Agreement or of the Rights to the contrary, the Company may, at its
option, issue new Right Certificates evidencing Rights in such form as
may be approved by its Board of Directors to reflect any adjustment or
change made in accordance with the provisions of this Rights
Agreement. In addition, in connection with the issuance or sale of
Common Shares following the Distribution Date and prior to the earlier
of the Redemption Date and the Expiration Date, the Company (a) shall,
with respect to Common Shares so issued or sold pursuant to the
exercise of stock options or under any employee plan or arrangement,
or upon the exercise, conversion or exchange of securities, notes or
debentures issued by the Company, and (b) may, in any other case, if
deemed necessary or appropriate by the Board of Directors of the
Company, issue Right Certificates representing the appropriate number
of Rights in connection with such issuance or sale; provided, however,
that (x) no such Right Certificate shall be issued if, and to the
extent
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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 Right
Certificate would be issued, and (y) no such Right Certificate shall
be issued if, and to the extent that, appropriate adjustment shall
otherwise have been made in lieu of the issuance thereof.
SECTION 24. Redemption and Termination. (a) The Board of
Directors of the Company may, at its option, at any time prior to the
earlier of (i) such time as a Person becomes an Acquiring Person and
(ii) the Expiration Date, order the redemption of all, but not fewer
than all, the then outstanding Rights at the Redemption Price (the
date of such redemption being the "Redemption Date"), and the Company,
at its option, may pay the Redemption Price either in cash or Common
Shares or other securities of the Company deemed by the Board of
Directors of the Company, in the exercise of its sole discretion, to
be at least equivalent in value to the Redemption Price.
(b) Immediately upon the action of the Board of Directors of
the Company ordering the redemption of the Rights, and without any
further action and without any notice, the right to exercise the
Rights will terminate and the only right thereafter of the holders of
Rights shall be to receive the Redemption Price. Within 10 Business
Days after the action of the Board of Directors of the Company
ordering the redemption of the Rights, the Company shall give notice
of such redemption to the holders of the then outstanding Rights by
mailing such notice to all such holders at their last addresses as
they appear upon the registry books of the Rights Agent or, prior to
the Distribution Date, on the registry books of the transfer agent for
the Common Shares. Each such notice of redemption will state the
method by which payment of the Redemption Price will be made. The
notice, if mailed in the manner herein provided, shall be conclusively
presumed to have been duly given, whether or not the holder of Rights
receives such notice. In any case, failure to give such notice by
mail, or any defect in the notice, to any particular holder of Rights
shall not affect the sufficiency of the notice to other holders of
Rights.
SECTION 25. Notices. Notices or demands author- ized by this
Agreement to be given or made by the Rights Agent or by the holder of
a Right Certificate (or, prior to the Distribution Date, of the Common
Shares) to or on the
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<PAGE>
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:
Olin Corporation
501 Merritt 7
P.O. Box 4500
Norwalk, CT 06856-4500
Attention of General Counsel
Subject to the provisions of Section 22, any notice or demand
authorized by this Rights Agreement to be given or made by the Company
or by the holder of a Right Certificate (or, prior to the Distribution
Date, of the Common Shares) 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.
450 West 33rd Street
New York, NY 10001
Attention: Vice President of Administration
Notices or demands authorized by this Rights Agreement to be given or
made by the Company or the Rights Agent to any holder of a Right
Certificate (or, prior to the Distribution Date, of the 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 Rights Agent or, prior to
the Distribution Date, on the registry books of the transfer agent for
the Common Shares.
SECTION 26. Supplements and Amendments. At any time prior to
the Distribution Date and subject to the last sentence of this Section
26, the Company may, and the Rights Agent shall if the Company so
directs, supplement or amend any provision of this Rights Agreement
(including, without limitation, the date on which the Distribution
Date shall occur, the time during which the Rights may be redeemed
pursuant to Section 24 or any provision of the Articles of Amendment)
without the approval of any holder of the Rights. From and after the
Distribution Date and subject to applicable law, the Company may, and
the Rights Agent shall if the Company so directs, amend this Rights
Agreement
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<PAGE>
without the approval of any holders of Right Certificates (a) to cure
any ambiguity or to correct or supplement any provision contained
herein which may be defective or inconsistent with any other provision
of this Rights Agreement or (b) to make any other provisions in regard
to matters or questions arising hereunder which the Company may deem
necessary or desirable and which shall not adversely affect the
interests of the holders of Right Certificates (other than an
Acquiring Person or an Affiliate or Associate of an Acquiring Person).
Any supplement or amendment adopted during any period after any Person
has become an Acquiring Person but prior to the Distribution Date
shall be null and void unless such supplement or amendment could have
been adopted under the prior sentence from and after the Distribution
Date. Any supplement or amendment to this Rights Agreement duly
approved by the Company that does not amend Sections 19, 20, 21 or 22
in a manner adverse to the Rights Agent shall become effective
immediately upon execution by the Company, whether or not also
executed by the Rights Agent. In addition, notwithstanding anything to
the contrary contained in this Rights Agreement, no supplement or
amendment to this Rights Agreement shall be made which (x) reduces the
Redemption Price (except as required by Section 12(a)) or (y) provides
for an earlier Expiration Date.
SECTION 27. Successors. All the covenants and provisions of
this Rights 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 28. Benefits of Rights Agreement; Determinations and
Actions by the Board of Directors, etc. (a) Nothing in this Rights
Agreement shall be construed to give to any Person other than the
Company, the Rights Agent and the registered holders of the Right
Certificates (and, prior to the Distribution Date, of the Common
Shares) any legal or equitable right, remedy or claim under this
Rights Agreement; but this Rights Agreement shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the registered
holders of the Right Certificates (and, prior to the Distribution
Date, of the Common Shares).
(b) Except as explicitly otherwise provided in this Rights
Agreement, the Board of Directors of the Company shall have the
exclusive power and authority to administer this Rights Agreement and
to exercise all rights and powers
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<PAGE>
specifically granted to the Board of Directors of the Company or to
the Company, or as may be necessary or advisable in the administration
of this Rights Agreement, including, without limitation, the right and
power to (i) interpret the provisions of this Rights Agreement and
(ii) make all determinations deemed necessary or advisable for the
administration of this Rights Agreement (including, without
limitation, a determination to redeem or not redeem the Rights or to
amend this Rights Agreement and whether there is an Acquiring Person).
(c) Nothing contained in this Rights Agreement shall be
deemed to be in derogation of the obligation of the Board of Directors
of the Company to exercise its fiduciary duty. Without limiting the
foregoing, nothing contained herein shall be construed to suggest or
imply that the Board of Directors shall not be entitled to reject any
tender offer, or to recommend that holders of Common Shares reject any
tender offer, or to take any other action (including, without
limitation, the commencement, prosecution, defense or settlement of
any litigation and the submission of additional or alternative offers
or other proposals) with respect to any tender offer that the Board of
Directors believes is necessary or appropriate in the exercise of such
fiduciary duty.
SECTION 29. Severability. If any term, provision, covenant
or restriction of this Rights 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 Rights Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
SECTION 30. Governing Law. This Rights Agreement and each
Right Certificate issued hereunder shall be deemed to be a contract
made under the law of the Commonwealth of Virginia and for all
purposes shall be governed by and construed in accordance with the law
of such Commonwealth applicable to contracts to be made and performed
entirely within such Commonwealth except that the duties and rights of
the Rights Agent shall be governed by the law of the State of New York
without reference to the choice of law doctrine of such State.
SECTION 31. Counterparts; Effectiveness. This Rights
Agreement may be executed in any number of counterparts and each of
such counterparts shall for all
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<PAGE>
purposes be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument. This Rights
Agreement shall be effective as of the Close of Business on the date
hereof.
SECTION 32. Descriptive Headings. Descriptive headings of
the several Sections of this Rights Agreement are inserted for
convenience only and shall not control or affect the meaning or
construction of any of the provisions of this Rights Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Rights Agreement to be duly executed as of the day and year first
above written.
OLIN CORPORATION,
by
-----------------------------
Name: Johnnie M. Jackson
Title: Vice President,
General Counsel
and Secretary
CHEMICAL MELLON SHAREHOLDER
SERVICES, L.L.C., as Rights
Agent,
by
-----------------------------
Name:
Title:
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<PAGE>
EXHIBIT A
to the Rights Agreement
ARTICLES OF AMENDMENT
OF
THE ARTICLES OF INCORPORATION
OF
OLIN CORPORATION
under Section 13.1-639 of the Virginia Stock Corporation Act
FIRST: The name of the Corporation is Olin Corporation.
SECOND: The amendment adopted is to add a new Paragraph 10
to Article Fourth, to read as follows:
"10: Series A Participating Cumulative Preferred Stock.
There is hereby established a series of the Corporation's authorized
Preferred Stock, to be designated as the "Series A Participating
Cumulative Preferred Stock, par value $1 per share." The designation
and number, and relative rights, preferences and limitations of the
Series A Participating Cumulative Preferred Stock, insofar as not
already fixed by any other provision of these Articles of
Incorporation, shall be as follows:
SECTION 1. Designation and Number of Shares. The shares of
such series shall be designated as "Series A Participating Cumulative
Preferred Stock" (the "Series A Preferred Stock"), par value $1 per
share. The number of shares initially constituting the Series A
Preferred Stock shall be 250,000; provided, however, that, if more
than a total of 250,000 shares of Series A Preferred Stock shall be
issuable upon the exercise of Rights (the "Rights") issued pursuant to
the Rights Agreement dated as of February 27, 1996, between the
Corporation and Chemical Mellon Shareholder Services, L.L.C., as
Rights Agent (the "Rights Agreement"), the Board of Directors of the
Corporation, pursuant to Section 13.1-639 of the Virginia Stock
Corporation Act, shall direct by resolution or resolutions that
articles of amendment of the Articles of Incorporation of the
Corporation be properly executed and filed with the State Corporation
Commission of Virginia providing for the total number of shares of
Series A Preferred Stock authorized to be issued to be increased (to
the extent that the Articles of Incorporation then permit) to the
largest
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number of whole shares (rounded up to the nearest whole
number) issuable upon exercise of such Rights.
SECTION 2. Dividends or Distributions. (a) Subject to the
prior and superior rights of the holders of shares of any other series
of Preferred Stock or other class of capital stock of the Corporation
ranking prior and superior to the shares of Series A Preferred Stock
with respect to dividends, the holders of shares of the Series A Pre-
ferred Stock shall be entitled to receive, when, as and if declared by
the Board of Directors, out of the assets of the Corporation legally
available therefor, (i) quarterly dividends payable in cash on the
last day of each fiscal quarter in each year, or such other dates as
the Board of Directors of the Corporation shall approve (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 a fraction of a share of Series A
Preferred Stock, in the amount of $.01 per whole share (rounded to the
nearest cent), less the amount of all cash dividends declared on the
Series A Preferred Stock pursuant to the following clause (ii) 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 Preferred
Stock (the total of which shall not, in any event, be less than zero)
and (ii) dividends payable in cash on the payment date for each cash
dividend declared on the Common Stock in an amount per whole share
(rounded to the nearest cent) equal to the Formula Number (as
hereinafter defined) then in effect times the cash dividends then to
be paid on each share of Common Stock. In addition, if the Corporation
shall pay any dividend or make any distribution on the Common Stock
payable in assets, securities or other forms of non-cash consideration
(other than dividends or distributions solely in shares of Common
Stock), then, in each such case, the Corporation shall simultaneously
pay or make on each outstanding whole share of Series A Preferred
Stock a dividend or distribution in like kind equal to the Formula
Number then in effect times such dividend or distribution on each
share of the Common Stock. As used herein, the "Formula Number" shall
be 1,000; provided, however, that, if at any time after
February 27, 1996, the ------- Corporation shall (x) declare or pay
any dividend on the Common Stock payable in shares of Common Stock or
make any distribution on the Common Stock in shares of Common Stock,
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(y) subdivide (by a stock split or otherwise) the outstanding shares
of Common Stock into a larger number of shares of Common Stock or (z)
combine (by a reverse stock split or otherwise) the outstanding shares
of Common Stock into a smaller number of shares of Common Stock, then,
in each such event, the Formula Number shall be adjusted to a number
determined by multiplying the Formula Number in effect immediately
prior to such event by a fraction, the numerator of which is the
number of shares of Common Stock that are outstanding immediately
after such event and the denominator of which is the number of shares
of Common Stock that are outstanding immediately prior to such event
(and rounding the result to the nearest whole number); and provided
further, that, if at any time after February 27, 1996, the Corporation
shall issue any shares of its capital stock in a merger,
reclassification, or change of the outstanding shares of Common Stock,
then, in each such event, the Formula Number shall be appropriately
adjusted to reflect such merger, reclassification or change so that
each share of Preferred Stock continues to be the economic equivalent
of a Formula Number of shares of Common Stock prior to such merger,
reclassification or change.
(b) The Corporation shall declare a dividend or distribution
on the Series A Preferred Stock as provided in Section 2(a)
immediately prior to or at the same time it declares a dividend or
distribution on the Common Stock (other than a dividend or
distribution solely in shares of Common Stock); provided, however,
that, in the event no dividend or distribution (other than a dividend
or distribution in shares of Common Stock) shall have been declared on
the Common Stock during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend Payment Date,
a dividend of $.01 per share on the Series A Preferred Stock shall
nevertheless be payable on such subsequent Quarterly Dividend Payment
Date. The Board of Directors may fix a record date for the
determination of holders of shares of Series A Preferred Stock
entitled to receive a dividend or distribution declared thereon, which
record date shall be the same as the record date for any corresponding
dividend or distribution on the Common Stock.
(c) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from and after the
Quarterly Dividend Payment Date next preceding the date of original
issue of such shares of Series A Preferred Stock; provided, however,
that dividends on such shares that are originally issued after the
record date for the determination of holders of shares of Series A
Preferred
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<PAGE>
Stock entitled to receive a quarterly dividend and on or prior to the
next succeeding Quarterly Dividend Payment Date shall begin to accrue
and be cumulative from and after such Quarterly Dividend Payment Date.
Notwithstanding the foregoing, dividends on shares of Series A
Preferred Stock that are originally issued prior to the record date
for the determination of holders of shares of Series A Preferred Stock
entitled to receive a quarterly dividend on the first Quarterly
Dividend Payment Date shall be calculated as if cumulative from and
after the last day of the fiscal quarter next preceding the date of
original issuance of such shares. Accrued but unpaid dividends shall
not bear interest. Dividends paid on the shares of Series A Preferred
Stock in an amount less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated pro rata on
a share-by-share basis among all such shares at the time outstanding.
(d) So long as any shares of the Series A Preferred Stock
are outstanding, no dividends or other distributions shall be
declared, paid or distributed, or set aside for payment or
distribution, on the Common Stock, unless, in each case, the dividend
required by this Section 2 to be declared on the Series A Preferred
Stock shall have been declared.
(e) The holders of the shares of Series A Preferred Stock
shall not be entitled to receive any dividends or other distributions,
except as provided herein.
SECTION 3. Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(a) Each holder of Series A Preferred Stock shall be
entitled to a number of votes equal to the Formula Number then in
effect, for each share of Series A Preferred Stock held of record on
each matter on which holders of the Common Stock or shareholders
generally are entitled to vote, multiplied by the maximum number of
votes per share which any holder of the Common Stock or shareholders
generally then have with respect to such matter (assuming any holding
period or other requirement to vote a greater number of shares is
satisfied).
(b) Except as otherwise provided herein or by applicable
law, the holders of shares of Series A Preferred Stock and the holders
of shares of Common Stock shall vote together as one class for the
election of directors of the
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<PAGE>
Corporation and on all other matters submitted to a vote of
shareholders of the Corporation.
(c) If, at the time of any annual meeting of shareholders
for the election of directors, the equivalent of six quarterly
dividends (whether or not consecutive) payable on any share or shares
of Series A Preferred Stock are in default, the number of directors
constituting the Board of Directors of the Corporation shall be
increased by two. In addition to voting together with the holders of
Common Stock for the election of other directors of the Corporation,
the holders of record of the Series A Preferred Stock, voting
separately as a class to the exclusion of the holders of Common Stock,
shall be entitled at said meeting of shareholders (and at each
subsequent annual meeting of shareholders), unless all dividends in
arrears have been paid or declared and set apart for payment prior
thereto, to vote for the election of two directors of the Corporation,
the holders of any Series A Preferred Stock being entitled to cast a
number of votes per share of Series A Preferred Stock equal to the
Formula Number. Until the default in payments of all dividends that
permitted the election of said directors shall cease to exist, any
director who shall have been so elected pursuant to the next preceding
sentence may be removed at any time, either with or without cause,
only by the affirmative vote of the holders of the shares of Series A
Preferred Stock at the time entitled to cast a majority of the votes
entitled to be cast for the election of any such director at a special
meeting of such holders called for that purpose, and any vacancy
thereby created may be filled by the vote of such holders. If and when
such default shall cease to exist, the holders of the Series A
Preferred Stock shall be divested of the foregoing special voting
rights, subject to revesting in the event of each and every subsequent
like default in payments of dividends. Upon the termination of the
foregoing special voting rights, the terms of office of all persons
who may have been elected directors pursuant to said special voting
rights shall forthwith terminate, and the number of directors
constituting the Board of Directors shall be reduced by two. The
voting rights granted by this Section 3(c) shall be in addition to any
other voting rights granted to the holders of the Series A Preferred
Stock in this Section 3.
(d) Except as provided herein, in Section 11 or by
applicable law, holders of Series A Preferred Stock shall have no
special voting rights and their consent shall not be required (except
to the extent they are entitled to vote
Page 55 of 66
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<PAGE>
with holders of Common Stock as set forth herein) for authorizing
or taking any corporate action.
SECTION 4. Certain Restrictions. (a) Whenever quarterly
dividends or other dividends or distributions payable on the Series A
Preferred Stock as provided in Section 2 are in arrears, thereafter
and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series A Preferred Stock outstanding
shall have been paid in full, the Corporation shall not
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for
consideration any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up)
with the Series A Preferred Stock, except dividends paid ratably
on the Series A Preferred Stock and all such parity stock on
which dividends are payable or in arrears in proportion to the
total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up) with
the Series A Preferred Stock; provided that the Corporation may
at any time redeem, purchase or otherwise acquire shares of any
such parity stock in exchange for shares of any stock of the
Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A Preferred
Stock; or
(iv) purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock, or any shares of stock
ranking on a parity with the Series A Preferred Stock, except in
accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all
holders of such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series
and classes, shall determine in good
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<PAGE>
faith will result in fair and equitable treatment among the
respective series or classes.
(b) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any
shares of stock of the Corporation unless the Corporation could, under
paragraph (a) of this Section 4, purchase or otherwise acquire such
shares at such time and in such manner.
SECTION 5. Liquidation Rights. Upon the liquidation,
dissolution or winding up of the Corporation, whether voluntary or
involuntary, no distribution shall be made (a) to the holders of
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock, unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received an amount equal to the accrued and
unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment, plus an amount equal to the greater of
(i) $.01 per whole share or (ii) an aggregate amount per share equal
to the Formula Number then in effect times the aggregate amount to be
distributed per share to holders of Common Stock or (b) to the holders
of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred
Stock, except distributions made ratably on the Series A Preferred
Stock and all other such parity stock in proportion to the total
amounts to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up.
SECTION 6. Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger, combination or
other transaction in which the shares of Common Stock are exchanged
for or changed into other stock or securities, cash or any other
property, then, in any such case, the then outstanding shares of
Series A Preferred Stock shall at the same time be similarly exchanged
or changed into an amount per share equal to the Formula Number then
in effect times the aggregate amount of stock, securities, cash or any
other property (payable in kind), as the case may be, into which or
for which each share of Common Stock is exchanged or changed. In the
event both this Section 6 and Section 2 appear to apply to a
transaction, this Section 6 will control.
SECTION 7. No Redemption; No Sinking Fund. (a) The shares of
Series A Preferred Stock shall not be subject to redemption by the
Corporation or at the option of
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any holder of Series A Preferred Stock; provided, however, that the
Corporation may purchase or otherwise acquire outstanding shares of
Series A Preferred Stock in the open market or by offer to any holder
or holders of shares of Series A Preferred Stock.
(b) The shares of Series A Preferred Stock shall not be
subject to or entitled to the operation of a retirement or sinking
fund.
SECTION 8. Ranking. The Series A Preferred Stock shall rank
junior to all other series of Preferred Stock of the Corporation,
unless the Board of Directors shall specifically determine otherwise
in fixing the powers, preferences and relative, participating,
optional and other special rights of the shares of such series and the
qualifications, limitations and restrictions thereof.
SECTION 9. Fractional Shares. The Series A Preferred Stock
shall be issuable upon exercise of the Rights issued pursuant to the
Rights Agreement in whole shares or in any fraction of a share that is
one-thousandth (1/1,000) of a share or any integral multiple of such
fraction which shall entitle the holder, in proportion to such
holder's fractional shares, to receive dividends, exercise voting
rights, participate in distributions and have the benefit of all other
rights of holders of Series A Preferred Stock. In lieu of fractional
shares, the Corporation, prior to the first issuance of a share or a
fraction of a share of Series A Preferred Stock, may elect (a) to make
a cash payment as provided in the Rights Agreement for fractions of a
share other than one-thousandth (1/1,000) of a share or any integral
multiple thereof or (b) to issue depository receipts evidencing such
authorized fraction of a share of Series A Preferred Stock pursuant to
an appropriate agreement between the Corporation and a depository
selected by the Corporation; provided that such agreement shall
provide that the holders of such depository receipts shall have all
the rights, privileges and preferences to which they are entitled as
holders of the Series A Preferred Stock.
SECTION 10. Reacquired Shares. Any shares of Series A
Preferred Stock 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, par value $1
per share, of the Corporation, undesignated as to series, and
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<PAGE>
may thereafter be reissued as part of a new series of such Preferred
Shares as permitted by law.
SECTION 11. Amendment. None of the powers, preferences and
relative, participating, optional and other special rights of the
Series A Preferred Stock as provided herein or in the Articles of
Incorporation shall be amended in any manner that would alter or
change the powers, preferences, rights or privileges of the holders of
Series A Preferred Stock so as to affect such holders adversely
without the affirmative vote of the holders of at least 66- 2/3% of
the outstanding shares of Series A Preferred Stock, voting as a
separate class; provided, however, that no such amendment approved by
the holders of at least 66-2/3% of the outstanding shares of Series A
Preferred Stock shall be deemed to apply to the powers, preferences,
rights or privileges of any holder of shares of Series A Preferred
Stock originally issued upon exercise of a Right after the time of
such approval without the approval of such holder.
THIRD: This amendment of the Articles of Incorporation was
duly adopted by the Board of Directors of the Corporation on January
25, 1996, without shareholder action, which shareholder action was not
required.
FOURTH: All shares of the Corporation's Series A Conversion
Preferred Stock previously outstanding have been converted and are no
longer outstanding.
IN WITNESS WHEREOF, the undersigned has executed these
Articles of Amendment as of this day of February, 1996.
OLIN CORPORATION
by
--------------------------
Name:
Title:
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EXHIBIT B TO
the Rights Agreement
[Form of Right Certificate]
Certificate No. [R]-
___________ Rights
NOT EXERCISABLE AFTER February 27, 2006, OR EARLIER, IF
REDEEMED 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. 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 BY ANY SUBSEQUENT HOLDER OF
SUCH RIGHTS ARE NULL AND VOID AND NONTRANSFERABLE.
Right Certificate
OLIN CORPORATION
This certifies that , or registered assigns,
is the registered owner of the number of Rights set forth above, each of
which entitles the owner thereof, subject to the terms, provisions and
conditions of the Rights Agreement dated as of February 27, 1996 (the
"Rights Agreement"), between Olin Corporation, a Virginia corporation
(the "Company"), and Chemical Mellon Shareholder Services, L.L.C., a
New Jersey limited liability company, as Rights Agent (the "Rights
Agent"), unless the Rights evidenced hereby shall have been previously
redeemed by the Company, to purchase from the Company at any time
after the Distribution Date (as defined in the Rights Agreement) and
prior to 5:00 p.m., New York City time, on the 10th anniversary of the
date of the Rights Agreement (the "Expiration Date"), at the principal
office of the Rights Agent, or its successors as Rights Agent, in New
York, New York, one-thousandth (1/1,000) of a fully paid,
nonassessable share of Series A Participating Cumulative Preferred
Stock, without par value, of the Company (the "Preferred Shares"), at
a purchase price per one-thousandth (1/1,000) of a share equal to $240
(the "Purchase Price"), payable in cash, upon presentation and
surrender of this Right Certificate with the Form of Election to
Purchase duly executed.
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The Purchase Price and the number and kind of shares which
may be purchased upon exercise of each Right evidenced by this Right
Certificate, as set forth above, are the Purchase Price and the number
and kind of shares which may be so purchased as of February 27, 1996.
As provided in the Rights Agreement, the Purchase Price and the number
and kind of shares which may be purchased upon the exercise of each
Right evidenced by this Right Certificate are subject to modification
and adjustment upon the happening of certain events.
If the Rights evidenced by this Right Certificate are at any
time beneficially owned by an Acquiring Person or an Affiliate or
Associate of an Acquiring Person (as such terms are defined in the
Rights Agreement), such Rights shall be null and void and
nontransferable and the holder of any such Right (including any
purported transferee or subsequent holder) shall not have any right to
exercise or transfer any such Right.
This Right Certificate is subject to all the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by reference
and made a part hereof, and reference to the Rights Agreement is
hereby made for a full description of the rights, limitations of
rights, obligations, duties and immunities hereunder of the Rights
Agent, the Company and the holders of the Right Certificates. Copies
of the Rights Agreement are on file at the above-mentioned office of
the Rights Agent and are also available from the Company upon written
request.
This Right Certificate, with or without other Right
Certificates, upon surrender at the principal stock transfer or
corporate trust office of the Rights Agent, may be exchanged for
another Right Certificate or Right Certificates of like tenor and date
evidencing Rights entitling the holder to purchase a like aggregate
number and kind of shares as the Rights evidenced by the Right
Certificate or Right Certificates surrendered shall have entitled such
holder to purchase. If this Right Certificate shall be exercised in
part, the holder shall be entitled to receive upon surrender hereof
another Right Certificate or Right Certificates for the number of
whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Right Certificate may be redeemed by the
Company at its option at a redemption price (in cash or shares of
Common Stock or other securities of the Company
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<PAGE>
deemed by the Board of Directors to be at least equivalent in value)
of $.01 per Right (which amount shall be subject to adjustment as
provided in the Rights Agreement) at any time prior to the earlier of
(a) such time as a Person becomes an Acquiring Person and (b) the
Expiration Date.
The Company may, but shall not be required to, issue
fractions of Preferred Shares or distribute certificates which
evidence fractions of Preferred Shares upon the exercise of any Right
or Rights evidenced hereby. In lieu of issuing fractional shares, the
Company may elect to make a cash payment as provided in the Rights
Agreement for fractions of a share other than one-thousandth (1/1,000)
of a share or any integral multiple thereof or to issue certificates
or to utilize a depositary arrangement as provided in the terms of the
Rights Agreement and the Preferred Shares.
No holder of this Right Certificate shall be entitled to
vote or receive dividends or be deemed for any purpose the holder of
the Preferred Shares or of any other securities of the Company which
may at any time be issuable on the exercise hereof, nor shall anything
contained in the Rights Agreement or herein be construed to confer
upon the holder hereof, as such, any of the rights of a shareholder of
the Company, including, without limitation, 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 other distributions or subscription rights, or
otherwise, until the Right or Rights evidenced by this Right
Certificate shall have been exercised as provided in accordance with
the provisions of the Rights Agreement.
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<PAGE>
This Right Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Rights
Agent.
WITNESS the facsimile signature of the proper officers of
the Company and its corporate seal.
Dated as of: February 27, 1996
OLIN CORPORATION,
by
----------------------------
Name:
Title:
Attest:
- -------------------------
Name:
Title:
Countersigned:
CHEMICAL MELLON SHAREHOLDER
SERVICES, L.L.C, as Rights Agent,
by
-----------------------
Authorized Officer
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<PAGE>
[On Reverse Side of Right Certificate]
FORM OF ELECTION TO PURCHASE
(To be executed by the registered holder if
such holder desires to exercise the Rights
represented by this Right Certificate.)
To the Rights Agent:
The undersigned hereby irrevocably elects to exercise Rights
represented by this Right Certificate to purchase the Preferred Shares
(or other shares) issuable upon the exercise of such Rights and
requests that certificates for such shares be issued in the name of:
Please insert social security
or other identifying number
- ---------------------------------------------------------------------------
(Please print name and address)
- ---------------------------------------------------------------------------
If such number of Rights shall not be all the Rights
evidenced by this Right Certificate, a new Right Certificate for the
balance remaining of such Rights shall be registered in the name of
and delivered to:
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<PAGE>
Please insert social security
or other identifying number
- -------------------------------------------------------------------------
(Please print name and address)
- -------------------------------------------------------------------------
Dated: _______________, __
---------------------------
Signature
Signature Guaranteed:
FORM OF ASSIGNMENT
-------------------
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED _______________________________ hereby
sells, assigns and transfers unto ________________________________
- --------------------------------------------------------------------------
(Please print name and address of transferee)
- --------------------------------------------------------------------------
this Right Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint
______________ Attorney, to transfer the within Right Certificate on
the books of the within-named Corporation, with full power of
substitution.
Dated: ____________, ____
------------------------------
Signature
Signature Guaranteed:
The undersigned hereby certifies that (a) the Rights
evidenced by this Right Certificate are not being sold, assigned or
transferred by or on behalf of a Person who is or was an Acquiring
Person or an Affiliate or Associate thereof (as such terms are defined
in the Rights
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<PAGE>
Agreement), (b) this Rights Certificate is not being sold, assigned or
transferred to or on behalf of any such Acquiring Person, Affiliate or
Associate, and (c) after inquiry and to the best knowledge of the
undersigned, the undersigned did not acquire the Rights evidenced by
this Right Certificate from any Person who is or was an Acquiring
Person or an Affiliate or Associate thereof (as such terms are defined
in the Rights Agreement).
--------------------------
Signature
NOTICE
------
The signature on the foregoing Form of Election to Purchase
or Form of Assignment must correspond to the name as written upon the
face of this Right Certificate in every particular, without alteration
or enlargement or any change whatsoever.
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